| Author | Message | |||
     Bengt Nordlund (Bengtn) |
The company PAAR in Austria have been granted a patent on detecting alcohol in liquids using NIR. Claiming the wavelength range 1100-1300 nm. In the general intrest of preventing people/companies to patent what most people consider to be general knowledge, should I be greatful if anyone could help with any public paper that discusses this application. It must be published before 1999. To my knowledge have several persons investigated alcohol in beer and wine prior to this date and I just assume that 1100-1300 have been investigated as well. | |||
| hlmark |
Unfortunately my stuff is still all packed up so I can't give a specific reference, but if you can get copies of the Proceedings from early (pre-1999) International NIR Conferences, practically all of them contained articles about measurement of beverages, including wine and beer. I don't know that any of them looked specifically at the 1100-1300 nm range, but at least several of them looked at the 1100-2500 nm range, which, of course, includes 1100-1300. Howard \o/ /_\ | |||
| Tony Davies (Td) |
Bengt, This is an important issue, which was highlighted in NIR news (9(3),10 (1998) by Heinrich Pruffer and Heike Bull. From a short search of JNIRS and proceedings I have found some reference of people measuring from 1100-2500 and using PLS so we could claim that they where using 1100-1300 nm. It is about time these claims were challenged on both the grounds that the inventive step is lacking and/or prior art. Perhaps ICNIRS could collect information to submit to the major patent offices. Best wishes, Tony | |||
| Christopher D. Brown |
Without knowing specifically what they've claimed, it's rather difficult to search for collisions, but here are two of the (many) relevant hits resulting from a SciSearch poll: STOPPED-FLOW NEAR-INFRARED SPECTROMETRIC DETERMINATION OF ETHANOL AND MALTOSE IN BEERS GALLIGNANI, M; GARRIGUES, S; DELAGUARDIA, M Source: ANALYTICA CHIMICA ACTA ; OCT 10 1994; v.296, no.2, p.155-161 Prediction of the concentrations of ethanol and acetic acid in the culture broth of a rice vinegar fermentation using near-infrared spectroscopy Yano, T; Aimi, T; Nakano, Y; Tamai, M Source: JOURNAL OF FERMENTATION AND BIOENGINEERING; 1997; v.84, no.5, p.461-465 | |||
| hlmark |
Tony - there are some very deep waters you can get into here; it's not a simple matter of showing that NIR calibrations are generic. The first time this sort of thing happened (that I know of) was a good number of years back, when Ashland Oil patented an NIR method for measuring several parameters of petroleum products. A good number of people got upset, as you are now; that group included Bill Fateley and Peter Griffiths, and some other heavy spectroscopic hitters. At that time Jerry Workman was with Perkin-Elmer and they had their corporate lawyers looking into it, too, since it potentially affected their on-line analyzer product. There was a manuscript put together by that group, showing all the things we know about calibrations being done generically, which they planned to publish in Appl. Spect. As I understand what happened, the board of Appl. Spect. did not allow it to be published for fear of a lawsuit. I believe it was eventually submitted to the Journal of the Patent Office (that may not be the exact name, but it's close) but I don't know if it was published there. Perkin Elmer declined to prosecute the case, probably for several reasons. But I recall Jerry saying that in these matters, you have to take your best shot right away, because if you lose two things happen: 1) It is considered even more positive confirmation of the legitimacy of the patent 2) Neither you nor anyone else can try to negate the patent on those same grounds I learned several things from that event. First, I learned from Marv Margoshes (who was heavily involved with formulating Technicon's patent portfolio) that if a patent is narrow enough, it can be valid, even though it seems to use prior art. That, and "inventiveness" of course, are the two key points of determining patentability, and those are both subjective. All the rest of us were of the opinion that Ashland was trying to patent the NIR spectrum, but Marv explained it this way: he said that even if every individual part of an invention is known, if you put them together in a new and unique way, that is uniquely suitable for some particular purpose, then that is patentable. What this meant was that Ashland was not trying to make a broad patent and patent the NIR spectrum, which would not have been patentable. Rather they were making a very narrow patent, which said that one particular combination of wavelengths (or maybe some fairly narrow wavelength bands) was useful for the NIR measurement of those particular petroleum parameters, and that is a patentable invention. Secondly, if anyone fights a patent and loses, it becomes virtually impossible to EVER have that patent overturned. Thirdly, the scientific aspects of these issues are at MOST only half of what's involved, the legal issues are at least, if not more, important, and can be much more intricate (and convoluted) than the science. So while we should all fight the good fight, you really need a very good patent attorney to be on the team, in order to create an argument that the patent office won't throw out on first glance with a comment on the order of "these guys don't know the first thing of what they're talking about". So Bengt may have grounds for arguing prior art, but he may also have to show that on equally narrow grounds as the patent is written (i.e., be EXACTLY the same). Here again, only a top-notch patent lawyer can tell the difference - and they're expensive! We can help him by pointing him to specific articles, but while your idea of us writing a letter to the patent office(s) gives us warm and fuzzy feelings, without the guidance of an attorney it's probably a waste of time. If nothing else, it's been done already. But I don't know what the outcome was (if any) Howard \o/ /_\ | |||
| Bruce H. Campbell (Campclan) |
Howard, et al., If a patent is written that tightly, I would think almost anyone could devise a slightly different measurement to obviate any infringement. Again, though, it would take a person well versed in patent law to verify this. Bruce | |||
| hlmark |
Sometimes, a company isn't so concerned with profiting directly by exercising a patent (except to threaten and then sue infringers) as they are to inflate their patent portfolio and thereby increase their value. When I become king of a major corporation I'll let you know. But I guess that's another thing I learned: patents have business value beyond what they say on their face. But yes, what you say is correct: if you change what you're doing slightly compared to the patent you should be in the clear - - if, when they sue you, you can convince the court that the patent is so narrow that what you did is out of its scope. THAT'S where the lawyers really come in! But I was just trying to save Tony some time by not pursuing an effort that is likely to be fruitless. \o/ /_\ | |||
| hlmark |
Addendum: in fact, Tony's original comment is a perfect case in point. If you measure from 1100-2500 nm, thereby implicitely including the 1100-1300 nm range, is that prior art to someone who explicitely claims the 1100-1300 nm range? That's not a technical question, it's a legal one, and would have to be decided by the lawyers and the courts if the situation arose and someone was sued for infringement. \o/ /_\ | |||
| David Russell (Russell) |
My understanding, from listening to our Patent Liason's training for technical folks is the key thing you gain (or risk losing) via a patent is the "right to operate". So a company examines key aspects of its technology package for a new or improved process to assess what aspects are key to their competitive position. Items that you just can't work around you go ahead and patent to assure the right to operate. I'd guess that in Paar's case, they have a "method" that they feel is novel. So they'd like patent protection so that Siemens, ABB, etc: can't duplicate their offering without "working around" their invention. | |||
| Tony Davies (Td) |
Dear All, You have hit one of my "Trigger points here". I believe that it is vitally important that scientists stand up to be counted and I am reasonably confident that the Law would protect us if we state an opinion that we believe we can defend. Of course corporations find it very difficult to make these sorts of decisions because of their responsibilities to their investors (and less worthy reasons!). I will try to find out what happened to the Bill, Peter et al paper. ICNIRS might be a good vehicle because it can gather world opinion but if anyone tried to take it to court they would have great difficulty in proving its legal existence! And it also has very limited funds. Obviously this needs to be a substantial document rather than a letter. At the start of this Bengt said an Austrian company had been granted a patent but not which Patent Office had granted it. With due respect to them, an Austrian patent would not be enormously valuable. Sales will at best be only modest but I would expect that they would proceed to apply for European, US, Japanese � etc patents. Depending which office is involved, if we were to act NOW perhaps we could influence the European Patent Office and that might deter the company from proceeding further. Doing nothing will not help, the (wavelength) band wagon will just keep rolling. This way we would not end up helping to promote a patent, by mounting a failed challenge, because it would not be an existing patent. I have had a little experience of patents (ie paying good money for no return) but I think European law may have some important differences from US law. By the way Bengt, does the patent actually use the words �detecting alcohol in ��? I do not think we can categorically �detect� alcohol using just wavelengths from 1100 to 1300 nm. We use NIR to make measurements because someone puts a label on a bottle saying the liquid contains x% alcohol. We do not prove that we are measuring alcohol. I think I will stop here. Tony | |||
| hlmark |
Tony - you're certainly correct to state, and I don't think that anybody in the developed world would argue with our right to state an opinion - either individually or collectively. And, it occurs to me, a considered opintion, backed by weight of scientific justification and suitably referenced might even be considered as amicus curiae when a case comes up. But I'm not sure that sending a letter to the patent office is necessarily the best way to inform them. As with most of these legal issues, these things are only considered in regard to a specific situation, and without that would be ignored. So I think that what should be done is to have it published in open literature, so that anybody who needs it can find it and include it in their documentation package to the patent office - or to a court. BTW - having an organization to take the heat is a benefit of having the organization. Otherwise a large company looking to sue somebody, and especially if they decide they want to make an example, will come after people individually. Even if you win such a case, the legal fees will be ruinous. An organization can declare bankruptcy, disband and reorganize as a different organization (but consult a good lawyer first!) I think all you'd need to do is send an e-mail message to Peter, to find out all the gory details of that earlier effort - probably even get a copy. My understanding about patents differs from Dave's. Everything I've learned about patents says that a patent only gives you the right to keep someone else from doing what you have patented. Even then it's up to you to keep them from doing it. It can happen that you cannot even make the device you've patented. This can occur, for example, if you have patented an improvement on an invention that someone else has patented. You can keep them from using your improvement, but they also have the right to keep you from making or using the invention (with or without the improvment) without permission. Howard \o/ /_\ | |||
| Richard Kramer (Kramer) |
I been trying for several years to find some funding for a fun little project, but so far no takers. The project is simple: 1. Take any recently issued patent which patents wavelength ranges x(n) for applications y(n). 2. Scan the patent into a word processor. 3. Replace the references to wavelengths and applications with appropriate meta characters. 4. Cross merge this document with any convenient public domain table of analytical wavelengths vs. compound. 5. Hire a small truck and deliver the resulting document, together with an appropriate cover letter, to your friendly neighborhood patent office. The patent examiner will have two options: A. approve all claims, making you the sole proprietor of all known IR analytical frequencies, or; B. having a sudden fit of common sense, invalidate all previously issued patents of that ilk. Whether the result is 5.A. or 5.B., I think it is a very worthy project with a guaranteed ROI. Anbody interested in funding it? Richard Kramer | |||
| Tony Davies (Td) |
I have had a response from Peter Griffiths: The paper was published - The paper was "Recognizing the Validity of Prior Art: Recent Patents Involving Electromagnetic Radiation," W. G. Fateley, B. R. Kowalski, P. R. Griffiths, K. H. Norris, and H. W. Siesler, Spectroscopy, 11(5), 14-21 (1996). Tony | |||
| hlmark |
Tony - Well, when I get dug out I'll be able to send you a copy of the paper, then. But at this point it will take at least a month until I can start unpacking the rest of the stuff. Remind me then. Probably all I'll be able to do is give you a more definite date though, in only a month. \o/ /_\ | |||
| Bob Rosenthal |
Dear All, I currently hold 51 NIR related U.S. patents (with others pending) as well as numerous patents in other countries. In reading the patent discussion, it appears to me that there are two items concerning patent law that are not understood by some. 1) The Fundamental Difference Between Scientific Laws and Patent Laws Scientific laws are facts of nature. They do not vary between country or between people. Unlike scientific laws, patent laws are written by legislator and is thus a product of legislature compromises. Furthermore, patent law is different in almost every country, and changes even in each individual country over the years. Based on the above, what is "clear and logical" to scientists may not be valid under the patent law in any particular country. As several of you have stated, what is valid under patent law must be determined by a trained patent attorney in a particular country. 2) Unique Combination of Prior Known Elements Almost all patents are composed of a unique combination of prior known technologies. At least under U.S. patent law, if the combination of known technologies is indeed unique and has never been published or used prior to the patent application, then it is patentable. Several years ago many of the senior scientists in the NIR field published a joint article in which they blasted one of my patents as being an affront to science. The argument was that I improperly included in my patent certain wavelengths needed to provide a particular measurement. In my response to the article (published as a letter to the editor) I attempted to use an example to illustrate a "unique combination of known technologies." The example used was that it has been known since the time of the Old Testament, that heating a metal to a high enough temperature will produce light (that's how Sampson was blinded). Moreover, it has been known for many thousands of years of how to make glass enclosures. Furthermore, since the days when Ben Franklin flew his kite with the metal key, it has been known that electricity can flow and can heat items. Moreover, it has been known for hundreds of years on how to generate a vacuum in a glass enclosure. However, it took one man - - - Thomas Alva Edison - - - to combine all of these prior known technologies to invent the electric light bulb - - - arguably, the most important and the most profitable patent in history. Edison didn't invent any of the fundamental four technologies, but he put them together in a unique combination. Thus, he was granted a fundamental patent. In almost every near-IR patent that I've ever read, the primary claim is a unique combination of known items. One of these items is typically the measurement wavelengths. However, the person that is submitting the patent is not asking for exclusive use of these wavelengths. The person is only asking for exclusive use of those wavelengths IN COMBINATION with specific prior known technologies in order to provide a unique and original result. Bob Rosenthal | |||
| W. Fred McClure (Mcclure) |
I take my hat off to Bob Rosental. Your sure know how to explain things, Bob. If I understand what he is saying - and I fully agree with him - if we have three engineering embodiments A, B and C that is granted a patent. Another person can use A, B and C, AND add D - and get another patent. Hence, if D is the information from the NIR region 1100 - 1300 nm - the patent is granted - simply because the NEW combination is unique. What upsets me is the fact that patent law allow "constants of nature" to be a "new embodiment." Yet, they do. Changing that through the political process is not easy, and it is not one with with scientists and engineers enjoy dealing. We would rather go into our caves (labs) and do our thing - push the envelope. However, if we change it, we must come out of our caves and go eyeball to eyeball with these misled folk with the political power. Unfortunately, that is the facts of life. Could it be that we spend too much time in the cave? | |||
| hlmark |
Between them, Bob and Fred said pretty much what I was trying to say, and I'm glad they said it since they did so much a better job. And I think Fred and Tony are on the same wavelength, too (you'll forgive the expression!) And it seems to me that it puts the nix on Richard's idea. We've all forgotten, I think (except Bob), that what we all think doesn't matter. It doesn't even matter what the patent office thinks. The only thing that matters is what the law says is patentable; even the patent office has to abide by that, whether it likes it or not. In fact, in retrospect, Richard's comments rather surprise me because he knows that better than most of us. Bob, correct me if I'm wrong, but another characteristic you have to demonstrate about your invention in order for it to be patentable is that you have to demonstrate its utility. Simply listing all possible combinations of wavelengths and analyses doesn't demonstrate the utility of any of them. Therefore, each combination you want to patent has to be shown individually to be useful. Rich - you're welcome to collect all that data and do all those calibrations, but I think I'll pass. Hmmm - on the other hand, if you do get the financing ... But getting back to reality: both Tony and Fred are telling us that we have to come out of our (scientific) caves in order to do anything useful about this situation, and I think we have to agree with them. They differ in what they propose to do, of course. Tony's proposal is more nearly in our "comfort zone" of activity, since he's proposing we do something we pretty much do all the time. Fred is saying we should come out of our comfort zones, and enter an arena we're not used to acting in but which has a greater likelihood of producing positive results. Do we want a show of hands? \o/ /_\ | |||
| Gabi Levin |
Hi, I guess surprises never end. I would not be surprised if tomorrow someone will file for a patent on shoe laces made of carbon fiber composite, or similar, I hope the patent offices will cease granting those patents. Why would anybody want to watse his time and money. Thanks, Gabi | |||
| Gabi Levin |
Hi, Rosenthal explanation is a beautiful example of throwing sand in our eyes. Indeed a perfect analogy between the invention of the light bulb and the invention of a very limited specific use of a very limited narrow wavelength range. What Thomas Alva Edison did was to create a completely new entity, a completely new product, a completely new technology rather than a variation on an existing light bulb. If the only thing he did by combining those known "technologies" or phenomena was to create a light bulb with a cubic shape rather than a pear shape, he should not have been granted a patent. That is about the sum of those narrow patents that do not create any thing new, with the exception of a perhaps? fake value for which unaware investors are paying their best money as suggested by one of our colleagues. I do no know how to contribute to stopping this charade, but if someone knows and does, blessed be he. Thanks, Gabi | |||
| hlmark |
Gabi - I think you're being a little hard on Bob. He obviously and deliberately used an extreme case to make a point. \o/ /_\ | |||
| W. Fred McClure (Mcclure) |
I agree with Howard. Let's not be too picky. One could pick holes in Gabi's case in point too. But I do not think it would serve any purpose. | |||
| Bob Rosenthal |
Howard Mark asked the question, "Do you have to demonstrate the utility of a patent" for it to be patentable. Before specifically answering Howard, let me provide some background that maybe not everybody recognizes. In the United States, patent law was defined in our Constitution in 1789. The Constitution defined a patent system similar to the old TV program "Let's Make a Deal." If you have an invention (discussed later) that is patented, the government agrees to give you a 17 to 20 year monopoly on the use of that patent; during the time period no one else is permitted to use it. In exchange for this monopoly, the inventor must fully and clearly disclose all aspects of the invention in the patent so that "anyone skilled in the art" could replicate the invention. (The most common cause of patents being overturned by court action is because the inventor left out some part of the detailed description of how someone skilled in the art could replicate the invention.) The purpose of this "deal" between the United States and the inventor was to allow anyone to read the patent and understand exactly what the invention is. The belief was, and still is, that the patent system will allow other inventors to leapfrog over the original invention with a new invention. Time has proven that the advancement of the technology is much more rapid by this government/inventor "deal." To specifically answer Howard's question, you must describe in detail the method or apparatus that is being invented. The definition of "method" and of "apparatus" is a function of Congressional law and has changed many times throughout the history of the United States. Concerning Gabi Levin's strong beliefs that modest improvements shouldn't be patentable - - - my only suggestion to him is to lobby Congress and the White House to change the patent law. In fact, that's how the patent law has been changed scores of times since its original start in 1789. (I do apologize, but I've assumed that Gabi is in the United States. If he isn't, then whatever procedure in his country for forcing patent law changes should be pursued.) Bob | |||
| hlmark |
Bob - I'm still not clear on the answer to my question. So what is the current status of the law? My understanding of patentability was that it rested on three main cornerstones: 1) Novelty (which is what most of this discussion has been about, mainly) 2) Unobviousness (if anything, this discussion is claiming that wavelength selection is TOO obvious to patent) 3) Utility (which is the third key part of the package, but had not been previously addressed in this discussion, until I brought it up in relation to Richard's idea) There are other, less critical parts (such as a proper description of the invention, which you mentioned), going through the formalities of applying correctly, etc. But my question, which I feel is still unanswered, is whether you have to demonstrate that your invention is useful (even if only to a minor degree). Unfortunately I don't remmeber the details but I recall reading about an exceptional new chemical entity that someone created (let's say on par with DNA) and a wonderful method for creating it that required only a fraction of the effort you'd normally expect, and he applied for a patent. There was no problem with obviousness or novelty, but the patent office was going to reject the application because the inventor hadn't shown that his "DNA" stuff was good for anything. So the inventor showed that, since the new chemical had a high nitrogen content, it could be used as fertilizer, and the patent was granted. So is showing Utility still a key part of getting a patent? Richard, I'm sure, is chomping at the bit waiting for the answer, so he'll know whether to pursue his idea or not. \o/ /_\ | |||
| kramer |
With all respect to Bob Rosenthal, he's conveniently left out an important criterion which must be fulfilled if a US patent is to be awarded. That criterion is NOVELTY. To many of us skilled (and even not so skilled) in the field, it is blatantly obvious that there is nothing novel about developing a quantitative or qualitative calibration using a range of wavelengths which is documented in the public domain to be correlated to the compound(s) of interest. The idea that the first person to submit a disclosure which describes doing exactly what is already well known to work should be granted a monopoly on a wavelength range is absurd. The US patent system is about fostering innovation, not about a land rush for wavelength squatters. | |||
| Gabi Levin |
The granting of a patent for the use of a narrow wavelength range to detect alcohol, an achievemnt aleady well documented over a range inclusive of these wavelengths, is like granting a patent to some one to use the 89MHZ to 91MHz range for airing FM radio currnetly well documented from 88 to 108MHz. I guess I have said enough, Thanks, Gabi | |||
| hlmark |
I think (almost) all of us here are pretty well agreed on what Richard and Gabi are saying. However, apparently the position of the patent office (in the US, at least) is that, based on their interpretation of current patent law, such things are allowable. This sort of thing probably goes on in several different areas, but it's the kind of thing that you don't become aware of until it impacts you. Tony and Fred are proposing that we try to have the patent law changed. That's appealing, but we have to realize that the companies that do that will fight tooth and nail to prevent anyone from changing those apsects of the law. Strongly as we might feel about it, I suspect that no independent group of scientists will have enough clout or resources to fight them. Look, even a (relatively) big company like Perkin-Elmer decided that it didn't pay to take them on. As an aside, Gabi's comment sparked a memory: my understanding of the development of radio technology is that it included some of the biggest patent battles ever. Howard \o/ /_\ | |||
| Michel Coene |
Something quite similar is going on in the world of software, with as prime example Amazon patenting "one-click-shopping". I would like to point out that when the EU decided to vote on software-patents, a massive grass-root lobby movement, mostly originating from open-source programmers, has successfully stopped the original proposal. Patent law is law, and it CAN be changed. | |||
| Bob Rosenthal |
Howard - I don't mean to pass myself as an expert of U.S. patent law. What I am is an inventor who has received U.S. patents. With this disclaimer, let me answer your specific questions. Of course, an invention must be "novel," and unobvious. I think the way the patent office might describe it is that an invention is something that is "not obvious to someone that is skilled in the state of the art"; and hasn't been previously "published." Moreover, the invention must have been reduced to practice by the inventor. An invention also must have "utility," however, I've never really considered this a barrier. In every patent I've ever read, there's an introduction section where the inventor discusses the prior art. In that discussion the inventor describes both the strengths and the weaknesses of prior art. The "introduction" is ended by the inventor saying his invention overcomes the weakness or deficiencies in the prior art. I attempt to speed read most optical patents that are issued and have never seen anybody claiming specific wavelengths or a region of the spectrum as the sole basis of a patent. However, commonly one of the attributes of the patent are wavelengths or spectrum regions. That aspect of the patent, combined with, for example, a method of generating that part of the spectrum, a method of interpreting that part of the spectrum, and perhaps other aspects - - - i.e., the combination of all of these aspects - - - provide the basis for the invention/patent. Let me use a personal example. Karl Norris showed more than 30 years ago that you could measure protein in whole grain in the very near-infrared portion of the spectrum using multiple wavelengths between 900 and 1050 nm. I used Karl's wavelengths and combined them with the ability of using many 950 nm IREDs as lamps in front of individual narrow bandpass filters to select wavelengths anywhere from 900 to 1050 nm, and combined the foregoing with a particular algorithm. This combination provided a unique; low-cost instrument to measure protein, oil, and moisture in grain. For this example, the patent office agreed that although each part of the invention was well known - - - e.g., the wavelength region from Norris, the ability of IREDs to provide light from Hewlett Packard, etc. - - - that their combination was unique and novel, and thus, a patent was issued. I'm in perfect agreement with Kramer's comment that: "The idea that the first person to submit a disclosure which describes doing exactly what is already well known to work should be granted a monopoly on a wavelength range is absurd." However, if that wavelength range is combined with a unique method of generating the spectrum, with a method of analyzing the spectra, etc., then perhaps it would be patentable. Bob | |||
| hlmark |
Bob - well, let's take the two specific cases that have been discussed in this thread: Bengt's original question, and the Ashland patent that I brought up. As far as I know, in both cases someone took a standard, off-the-shelf commercial instrument, measured some samples and applied a standard calibration algorithm from a commercial calibration package to the data, to create their calibration model, which implicitely then required the use and specification of some combination of wavelengths or wavelength ranges. In all likelihood the final wavelengths or wavelength ranges used were chosen by the computer, not by the scientist. Basically the situation is what those of us who have worked for one of the instrument companies would consider a "routine application study". This seems to be the scenario describing what the patents in question are being issued for. The majority of us don't think that there is anything particularly novel about those calibrations. Or if there is, then maybe the computer should have been awarded the patent (I know that's over the top, but I couldn't help but heap some more scorn on the practice)! To put it in terms of the radio analogy, it would be like CBS radio patenting 880 kHz, because it's a unique, "unobvious" wavelength that they find useful (of course it's only useful because that's the one they broadcast on!). If I understand your comments correctly, you are agreeing with the rest of us in this point. BTW - will you be at EAS? \o/ /_\ | |||
| W. Fred McClure (Mcclure) |
Bob, I believe the wording in patent guides is "novel and not obvious to one skilled in the art." Again, your analysis is well taken, WFMc | |||
| Bob Rosenthal |
Howard - I do indeed agree with you that patenting ordinary research results is improper and violates U.S. patent law. Fred - you are, of course, correct in the wording in the patent guides. EAS - unfortunately, I will not be able to attend. It's just too far for me to drive and there is no reasonable public transportation. Bob | |||
| Bengt Nordlund (Bengtn) |
Dear all It was not so easy to upload the patent as I hoped. This is a english translation, not the original patent. The original patent was to big to upload. Anyone that wants a copy can contact me directly. C:\Documents and Settings\sebnd\My Documents\2006 Aladdin\competitors
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| Bengt Nordlund (Bengtn) |
Hi again I need some traing on posting messages! I also would like to bring the discussion back to the original question, do anyone have knowledge of presentations made prior to 1999 using this wavelength range for alcohol determination. My thoughs are that oyone that used filter instruments back then, could have used any of the wavelengths specified in the patent. Then to add to the general discussion, I don't like anyone to have a patent on my DNA ( do I have to pay licence fee to them?) But it must still be possible to get a patent on something that actually is an invention, but it should not only a new describtion of something that already exists. It is a way of spreading knowledge as well as a way of getting paid for an idea. Looking forward to a continued discussion. Bengt | |||
| Tony Davies (Td) |
Bengt, A JNIRS paper from Y.Li, C.W. Brown and S-C Lo 7,55-62 (1999), had its web publication recorded as 13 February 1999. So it pre-dates the patent (25 February 1999)!! In this paper the use of wavelengths 1106 and 1286nm are specifically mentioned for use in MLR models. Best wishes, Tony | |||
| Bob Rosenthal |
Bengt, Your November 17, 2003 message mentioned that there were two attachments. I could not find them. Bob Rosenthal | |||
| Bengt Nordlund (Bengtn) |
Bob I could only get an english translation attached , there was also the original patent as and pdf file but it was to big for upload. I can send it by e-mail to you. It is in German. Bengt | |||
| Bob Rosenthal |
Bengt In your message you indicated that an English translation was attached. However, I wasn't able to find that English translation. I did receive your e-mail that contained the German patent. Unfortunately, no one at my company has the ability of reading German. Therefore, if possible, please send the English translation to my e-mail ([email protected]). Bob | |||
| Bob Rosenthal |
To: Bengt Thanks for forwarding the English translation of the PAAR patent for measurement of concentration of alcohol. I have carefully read the patent and totally agree with you and the other people in the discussion forum - - - it solely patents wavelengths to provide a quantitative measurement of a constituent (i.e., alcohol). I am indeed surprised that the German authorities granted this patent. I would also be very surprised if the patent would be granted under U.S. law. However, if it was granted under U.S. law, and if I had a "business reason" to challenge it, I would certainly do so. What do I mean by "business reason?" For example, if I wanted to develop a specialized instrument to measure alcohol using the wavelength that PAAR described, and if I thought there was a large enough market for my instrument, I would probably notify the patent holder and the U.S. Patent Office that in my considered judgment the patent is improper protection. I would then enter the market place with my product and wait to see if the patent holder would sue me. If the patent holder did sue me, I would, as a businessman, defend my action by arguing in court that the patent is invalid. It might interest you to know that I have done exactly that three times in the last twenty years, and all three times the party that held the patent that I violated, refused to take me to court. The reason was the patent owning party had too much to lose; i.e., if I won the case, the patent is voided, and therefore, the patent holder could not obtain royalties from other users of the patent. If you notice in the previous paragraph, I based my argument against such patents on business considerations. If I didn't have a product that I was trying to sell, and I discovered that a certain in my eyes patent was invalid, I would never attempt to fight it. It is expensive and an enormously time-consuming effort to enter into a legal action against an existing patent (at least in the U.S.). Only if there was a major economic gain to be made would I undertake it. Bob | |||
| Bengt Nordlund (Bengtn) |
My thoughts behind this discussion and the request for papers published prior to 1999 regarding alcohol determination was to challenge the patent before it was granted outside of Austria. This because it is so expensive to bring it to court and we will never have a business case for that, it is not likely that we or anyone else would develop an instrument using only a few wavelengths. If someone oppose to the patent before it is granted the cost very limited, so that was my intention. This mainly because I think it is wrong that a company/person should get this kind of patent and I understand that there are several persons that have the same standpoint. There seems to be a general interest to stop this kind of patents as there is no �invention� in it and by bringing that up with the paten authority can we hopefully also stop other similar patent in the future without having to bring them to court. I have to admit that there is a business interest behind this as the company I work for also manufactures instruments for alcohol determination based on NIR, but we have never consider the possibility to patent applications or as you put it � patents wavelengths to provide a quantitative measurement of a constituent� because this nothing we have invented but a scientific fact. | |||
| Bengt Nordlund (Bengtn) |
My thoughts behind this discussion and the request for papers published prior to 1999 regarding alcohol determination was to challenge the patent before it was granted outside of Austria. This because it is so expensive to bring it to court and we will never have a business case for that, it is not likely that we or anyone else would develop an instrument using only a few wavelengths. If someone oppose to the patent before it is granted the cost very limited, so that was my intention. This mainly because I think it is wrong that a company/person should get this kind of patent and I understand that there are several persons that have the same standpoint. There seems to be a general interest to stop this kind of patents as there is no �invention� in it and by bringing that up with the paten authority can we hopefully also stop other similar patent in the future without having to bring them to court. I have to admit that there is a business interest behind this as the company I work for also manufactures instruments for alcohol determination based on NIR, but we have never consider the possibility to patent applications or as you put it � patents wavelengths to provide a quantitative measurement of a constituent� because this nothing we have invented but a scientific fact. | |||
| mike zapf |
There are at least two NIR alcohol papers that I'm aware of, one was possibly from Spain (19??)( I havne't located it yet) and the other is: "Detection of Ethanol in Wines Using Optical-Fiber Measurements and Near-Infrared Analysis". Honings et al. Applied Spectroscopy volume 42,1106 (1988). PLS wavelengths <1600nm were clearly featured and discussed using fiber optics and a Technicon 500. | |||
| hlmark |
Tony - I finally am able to start unpacking, and as luck would have it, I came across a copy of the Spectroscopy article (by Fateley, Kowalski, Griffiths, et al) right away. Do you still need a copy and want me to send one to you? (let me know ASAP, before it gets lost again!) Howard \o/ /_\ | |||
| hlmark |
FYI - As more luck would have it, I just received the latest (Jan., 2004) issue of Scientific American, and in it (on page 34) is a short (1 page) discussion entitled: "In Search of Better Patents: How to Get Rid of Bad Filings Without Costly Lawsuits." Basically, this article recommends adding provision for a post-issue administrative review of patents to the law. The recommended provisions are based on the European patent system which apparently has such provisions, although the author of this article also recommends some modifications of that to overcome some shortcomings he sees there. The European review system allows bad patents to be voided at a cost of less than $100,000 to each party (the patent holder and the opponent), a much smaller amount than the multimillion dollar costs associated with the current US litigation system. Obviously, one page cannot present the topic in any great detail, but the author also cites a report made to the National Research Council titled: "Patents in a Knowledge-Based Economy" as his main source of information, and which presumably contains the details. Howard \o/ /_\ |
C:Documents and SettingssebndMy Documents2006 Aladdincompetitorspatent.pdf