On Mar 30, 2009, at 1:00 AM, Kim wrote:

>There is a definitive difference between copyrighting and patenting.
>Unless Wysong can produce documentation illustrating they applied for
>the process patent, they won't have much of a leg to stand on in their
>argument

Yes, there is a difference between copyrighting and patenting, but
that is not the relevant argument here. You cannot validly patent a
process that is already in the public domain. (If you could, I think
I'd patent --oh, say steel smelting... or maybe making pasta) The US
Patent office has become notoriously lax about searching for conflict
and pre-existing processes. There's no money in that. They usually just
accept the applicant's word that they did a 'due diligence' search.

Wysong's documention shows that their process existed prior to
Purina's, and that they chose to release it to the public. THIS is
the essence of their legal argument. It is a hands-down, legally pre-
emptive argument. The copyrighted Wysong articles are important not
because of the copyright, but because they prove that the process
pre-existed Purina's claim.

The problem is, public domain does not show on a 'patent conflict' type
of search, so would not show up on a too-casual search. Wysong would
have done better to use something like the GNU 'creative commons'
license, so there would be a paper trail. Lack of such a paper trail
does not weaken their legal argument, but it would have saved this
whole hassle if it existed.

But simply proving in court that the process existed before Purina
patented it will take money, possibly millions. Compared to Purina (and
mother company Nestle), Wysong is a tiny company. Defending this claim
could bankrupt them, despite the validity of their claim. Anyone who
remembers the Nestle boycotts may also remember that Nestle eventually
responded; the petition to Nestle is worthwhile and may be effective.

http://www.thepetitionsite.com/1/help-wysong

Wysong has filed (or is considering filing) a countersuit for patents
misuse and misleading the US Patent Office.
-Claire

[Posted in FML 6288]