Not usually. Your A' widget may not be patentable. It may be an incremental extension that, given some reflection, would be obvious to anyone skilled in the field.
That's why I brought up KSR v Teleflex in my post. But, indeed, it is not uncommon for someone to patent _under_ another patent and cross-license. It is a valid business plan.
But of course it does have to be non-obvious to be patentable.
Innovation is slowed by patents.
Yes and no. Innovation doesn't necessarily have to be slowed by patents. The idea being that if the Examiner doesn't get ridiculous "obviousness" linkages then innovation _can_ continue. That's why we have an appeals process for the patent examination.
Sure it may slow "tiny incremental innovation" but it doesn't necessarily have to.
I'm not, here, concerned with the general brokenness of the patent office. The U.S. patent office is busted. But the principle of patents isn't busted. I think it's a good idea.
I'm not so sure the U.S. patent system is _that_ busted. Definitely we need reform and I'm not as familiar with the prosecution in Europe but if we even go so far as to align our terms and "first to file" we'd make things a lot less confusing and litigious what with the elimination of "swearing back" an invention based on lab notebook dates etc.
But I'm wholly familiar with all the problems U.S. has vs other country's patent system.
If I write a book, and sell less than a thousand copies in 28 years, in all likelihood I am not going to sell a million in the next 28. If it was a good idea, but I'm a lousy writer, let better writers run with the idea.
And again, the _idea_ really isn't what is copyrightable according to the USC. But I agree that a better author could take a lousier authors work and make something great and indeed _that can happen right now_ even if copyright terms were extended all the way to the death of the original author. The author can assign copyrights.
The reason this becomes a trickier issue than say a utility patent is that we are dealing with a creative work. There's no real _intrinsic_ value to "Harry Potter and the Sorcerer's Stone" that moves our society forward that couldn't have come from another source. It is like any work of art; a work of art.
Let's say Picasso is still alive and maybe I don't like Picasso (I don't, actually) and I want his work to be more like Galen-Kallela (a painter I do like) so I take a Picasso and muck it about to make it look like Galen-Kallela. But that doesn't mean that it's a Picasso anymore. It is now something quite different.
Not necessarily better or worse, but different.
I think the art is different from utility patents.
But generally I am far more ambivalent about term of copyright than I patents. It is far more "touchy-feely" and gets down to topics of what is "art" and what is the "artistic process" and should it attach solely to the artist.
If I make an atomic widget that helps reduce the cost of electricity for all of humanity and then someone makes a "super atomic widget" and makes it even better we can debate the value of how long or how to move this technology forward.
But derivative works of art outside of fair use is somewhat trickier in my mind as to how much control an artist has over his or her original work.
If the next writer sells a million copies, I know to whom I can talk about co-authoring a book. If it was well-written but a lousy idea, let me be the one to rework the good ideas of others, poorly expressed.
On the other hand, if I sell ten million copies over 28 years, I'd say the money from sales rewards me adequately for my work. The book is still valuable, and maybe it will sell two million copies in the next 28 years. But I wasn't given the copyright because I owned the idea. I was given the copyright as incentive to write it in the first place. If it makes me sad to lose the copyright, I can save some cash by carpooling with J.K. Rowling on her way to the bank.
My ownership of the copyright shouldn't act as a disincentive to my children toward work.
I think software patents are generally bogus. I think the idea might be fundamentally flawed. Regarding other patents, I think the patent office needs reform, and I don't know how long the terms should last. Maybe the terms are fine.
But they definitely stifle innovation. That's okay with me. I like guaranteed forward progress. It's a cost I'm willing to pay. I don't like that nobody knows Stradivari's formula and that his violins can't be reproduced.[/QUOTE]
