electriac, I think you need to study & research 'case law' or 'tried law' or "a law that has not been tried is not a law, but words on a page, and once tried then a law becomes a case law". I'm just playing with you.
First off, plant patent (reality is seed patent by exact genetic code) is completely different from ASCII, or electronic patent, or digital patent, or intellectual property patent (stated or expressed differently depending on the country).
As for seed patents, The U.S. Patent office in 1991-1992 made a statement (to a couple of individuals who actually asked; couple means two) that a seed must merely meet the requirement of never have been patented before to qualify for patenting (the actual genetic code of the plant species contained in a seed is the patent right). The first company to discover and ask the Patent Office this question was Monsanto (executive owners of the company). By 1993, Monsanto discovered a whole archive of seeds in the U.S. repository that have never been patented before and started [quietly] raking up samples of every seed from 1993 to 1997 (continued through 2003) and had successfully patented every sample they took. Monsanto today is the largest global patent holder of seeds on the planet, and because of the U.S. Trade Agreement which countries generally sign for a Trade Status with the U.S., the seed patents have to be abided, for the most part, globally.
This has caused a lot of farmers around the world to lose everything through basic patent lawsuits (a good modern example is the entire country of Philipines in which Monsanto owns over 93% of all food seeds in that country, and basicly every farmer is in riot mode because of this; there's hundreds of countries with this dilemma). To make this short, you can look at the U.S. Commodity Exchange from 1998 to 2005, and say pick at potatoes. In the 1990's, over 16,000 species of potatoes went through the commodity exchange and by 2003, and even right now 2008, there's only 6 to 8 species of potatoes going through the U.S. Commodity Exchange which means all U.S. local markets are limited in the number of potatoes species they can actually buy off the store shelf by that number.
There are a few seeds that have not been patented by Monsanto or have been sanctioned by the U.S. courts with a ruling in favor of the farmers who've been growing them well before Monsanto started patenting everything stored in the U.S. repository (I guess it falls into the grandfather clause for some individuals whom inherited their farms from their parents or grand parents). Also, in Arizona, the courts ruled in favor of a farmer whom grew his normal corn in an open field, separated from another farmer by a two lane road whom grew a super corn using seed that was owned and genetically altered by Monsanto. Monsanto sued the neighboring farmer on the bases that their super corn ended up in his field, claiming theft, but the court dismissed the case in finding that the farmer growing his normal corn had no control over the wind blowing pollen across a two-lane road into his field and causing unintentional cross-pollination in which the super-corn-genes became the dominant genes of the corn.
1. Going back to your statement: "...patent (of) Penstemen "Huskers Red"...there is no difference between the patented plant and the species variety..."
1A. Yes, there is a difference in "species variety", by mapping the genetic code of each individual plant in the variety, each individual plant can be patented (the actual genetic code) whether genetically engineered or not is patentable, so long as it was never patented before. If you have a variety of plants, regardless if it's the same species, that's also a variety of patents. So keep an eye out for a hybrid gene that doesn't exist, yet. Such as my mother's jalopeno-thai bird-bell pepper. It looks like a cross between a jalopeno pepper and thai bird pepper (general shape and twisty curves) with the texture of a bell pepper (thick skin), but is completely sweet & sour and not spicy. Jalopeno pepper skins are naturally sweet (without the seeds and capsicum - the spicy part), thai bird peppers are naturally sour (high vitamin C content in it's skin; without the seeds and capsicum - the spicy part), and bell peppers are naturally slightly sweet (even sweeter after they're cooked). No, she didn't patent it, but threw them in the trash since peppers are suppose to be hot.
2. Going back to the 1953 GE Patent of an oil eating "biological lifeform" (quoted words are from the mouth of Supreme Honorable Skalea in describing within the case law). This was a closed session case with a limited number of participants present. The defense included theoretical examples of two head snakes, three headed dogs, etcetera, to challenge GE's patent right. Long story short: the defense lost and GE won their patent. GE took the stomachs from two oil eating bacteria and stuck it into one oil eating bacteria making it a more voracious eater. The concept: for cleaning up oil spills. The result: the patented oil eating bacteria was never used because it not only ate oil, but also 26 other minerals, elements, and metals that had been discovered to be a part of it's voracious diet. This would not only clean up oil spills, but potentially devastate sea life, whole forests, and even fertile lands such as pastures and hills, and destable stable lands such as mountain sides. I guess nature only gave it one stomach for a reason. The only real significance in this case is not the patent itself, but the words used by Supreme Honorable Skalea, "..patent of a biological lifeform...", which openned up patent rights for novel patents of simple biological manipulation (id est Adding two stomachs to another creature), as well as patent by genetically changing something, where simple observations of hybrid species for patent used to be the norm for plant and animal patents. Genetic patents are more detailed and descriminating for differentiating actual patents, but this case makes patenting based on something as novel as adding additional body parts or organs or organelles a legal reality.
In fact, if you goto South Korea today (might even be able to order them online by now with global shipping; forgot the company name - doesn't really matter), they're selling glow in the dark cats, glow in the dark dogs, glow in the dark hamsters, glow in the dark rabbits, etcetera, in several glow in the dark colors (orange, blue, red, purple, etcetera) through the countries major pet stores. A South Korean company (patent owner) crossed genes from a deep ocean fish (photo productive genetic cells) into different animals and raised them from birth to the pet store. They focused mainly on maniplating the genetic portion for growing hair cells and skin cells.
3. An ASCII file or digital file or electronic file can fall into the novel patent also.
3A. Could be the exact machine code (0100 0111), or hex code (A2), (language patent) which is simple to read through a CPU register process (the actual calculation patent) or the actual file storage (format patent).
3B. Could be the actual mathematical formulae required to complete a code translation (formula patent), regardless of how the code is written or presented.
LOL. I haven't read the original May story yet. Atleast you had me brainstorming old stuff I'd studied a long time ago, that are still ongoing (never know could change, and patents eventually expire: 17 years + 14 years extension; may vary from country to country).
It's a Custom XML Feature that was patented. And yes, electriac, you can sue everyone for using your custom delimited ASCII file without your permission. If you didn't patent it, you can only go for copyright infringement (keep track of all of your original files and notes in creating them). A patent in this case of a Custom Feature, I'd surmise would require proof of a unique function. A mathematical formulae is one type of function (see 3A & 3B above for some ideas). Even better, look up the actual patent to see for yourself and read the actual case files.
Patent No. 5,787,449, issued July 1998, owner: I4i
Case PDF File:
http://i.i.com.com/cnwk.1d/i/ne/pdfs/JudgesRulingOnAppeal.pdf
In General: Microsoft stole an editor from I4i and stuffed it into their Office Software.
Equivalence: Would be the same as stealing Adobe Photoshop (a graphic editor) and stuffing it into Paint (a low grade graphic editor).
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