Two interesting news on patents. The first one is on the biotech industry, it is interesting because it highlights a problem with patenting genes, especially those which can reproduce. The Supreme Court decided to visit the case of a farmer got sued by a biotech company for using seeds from a third party source that contains seed with the patented genes. It is interesting because of its implication. There had always been cases where farmland was contaminated by patented seeds from neighbouring farms. Those cases are easy to settle, but in this case, the farmer did knowingly deliberately sow the seeds, regardless of whether he knows it contains the contaminating seeds. In fact, because the patented seeds is so widely used, it is difficult to argue the farmer did not know. Honest mistake by the farmer? If so, right now it is an expensive one. If the Supreme Court says that the farmer is able to use the seeds in question, how is one going to be able to use the patents on genes for financial gain? Conversely, if the farmer is wrong, it has the effect of killing the ability of buy seeds from third parties for the fear of contaminated seeds. That would be equivalent to handing agriculture to a few companies and turn agriculture upside down.
The second is a little development from one of the Samsung vs Apple cases as reported by Groklaw. It appears that the Appeal Court is insisting that for Apple’s Search patent to be considered valid, each of the different part of the search must use a different algorithms. While PJ missed the implication that if two parts of the search uses the same algorithm is enough to workaround the patent, I did not coz I am a programmer. I am surprised that you can patent what is obvious from the day people start using computers to can aggregate results from different sources but my surprise is not the point. The point is I think it is not possible to get a patent that simply aggregate results from different source, that is why the patent attorney was forced to dance around this by arguing that the claim is limited by the requirement that “each part using a different algorithms” to get the patent. I certainly do not think it is an oversight or ignorance or mistake on the part of the patent attorney that comes back and bite Apple. If any, I believe the chances that the patent attorney deliberately wrote the patent in the way he did to create enough ambiguity for Apple to assert the patent against others. Unfortunately, the Appeals Court just called his bluff.
[Updated 20121018: PatentlyO has a more detail analysis on the topic of algorithms in Apple Vs Samsung. His proposed claim construction that Apple should use if it wanted to mean what Apple wants it is very subtle. One do really need a very good understanding of English to be able to spot the difference. It definitely takes a wordsmith to mint the languages. Lawyers are by definition wordsmith. Most importantly, he says the history of the patent suggested that the Apple conceded that there its patent required all algorithms to be different. Kudos to the examiner who extracted this concession, Samsung’s lawyer for running with it and the Appeal Court for forcing Apple to stick what it already conceded. I do not blame Judge Koh for reading the patent incorrectly. The difference is subtle and difficult to spot. As for Apple, shame on you for being naughty]