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"in this case there are specific statutes at work"

True. According to the US copyright code, if you grant a non-exclusive license (e.g. a license using the GPL) and then transfer the copyright to someone else (e.g. sell it to a company), the license survives the transfer only if "evidenced by a written instrument signed by the owner of the rights licensed or such owner's duly authorized agent" [17 USC 205(e) http://www.bitlaw.com/source/17usc/205.html]. Is the GPL a signed, written instrument? It's written, but where's the signature (digital or otherwise)? So I would not like to rely on how a judge would rule.

The FSF does not worry about revocation or transfers for GNU software because it requires contributors to transfer copyright to the FSF, and the FSF will not revoke the GPL (though they may relicense under the GPLv3 when that license is drafted and ready). Probably the FSF's incorporation charter would forbid it from doing something dubious anyway, e.g. revoking the GPL license and making a project purely closed-source.

But should others, who use the GPL without getting copyright assignments, worry? I do a bit and lean towards contract-based licenses. The main argument against them is that they are mostly incompatible with the GPL, under which most free software is licensed.

"Mr. Moglen is a copyright professor at Columbia Law School"

He is a professor of law and legal history, not copyright. However, I have no doubt that Prof. Moglen knows more about copyright law than I or than most people who read and post to slashdot know. However, he is busy and not easily available for these discussions, and the same goes for others with similar expertise. Furthermore, it is an issue on which the copyright experts are divided. Partly because there is so little case law on the subject. Most licenses are not to the public at large, and are about limiting rights, whereas the GPL and its cousins grant huge rights to everyone, and courts have not faced the new issues that this situation creates. Are these licenses gifts? Courts usually refuse to enforce gifts, so they will not force a copyright holder to stick by his or her license. Is it a contract? If so, was it validly formed (offer, acceptance, consideration)? If not, did the licensee reasonably rely on the contract terms (e.g. in forming a company), which might now be revoked and thereby destroy the company?

Without court cases and law review articles addressing these issues (or sections in Nimmer on Copyright), one must think through these issues oneself and guess how courts will rule, and try to cover the bigger loopholes -- even if there is a significant chance of being wrong.

I've said this countless times and my goal is to be eventually moderated Redundant instead of alternating between Troll and Informative.

[Crash course]"Obvious" as regards a US patent means that you can produce multiple pieces of prior that can be combined to produce the claimed invention, AND you have documented motivation in the prior art (very preferably in one of those references).[/Crash course]

See for yourself: MPEP 2143

Many people seem to think that "obviousness" as regards patents has to do with "how hard it was to come up with", "how stupid the idea is", or "how trivial the invention is". This is complete fantasy.

"Obviousness", as regards the US patent system, merely means that no single piece of prior art teaches the entire invention (that would be an issue of novelty). In this case, you would need to find prior art references that teach something along the lines of illuminating a toilet as well as WHY ON EARTH someone would want to illuminate a toilet. That hurdle crossed, illuminating with LEDs would be the easy part, as there are numerous sources documenting the advantages of LEDs over other light sources.

I'm not trying to rant on you, but I've posted this little (extremely well) known secret about the US patent system at least 25 times in the last 5 months. It's not you, it's me ;)

And I'm not saying that this won't be rejected under 35 USC 103 (obvious), but I'm definitely not an expert in the shit-bowl illumination technology. Actually, I wouldn't be the least bit surprised if somebody from Japan invented this exact same thing 10 years ago. Something about this idea strikes me as distinctly Japanese, no offense intended to our robot-dog-making schoolgirl-anime-loving generally-culturally-insane Japanese friends.

I like the recursive nature of this item though, maybe the guy is a GNU fan.

That's a trivial issue under 35 USC 112, second or fourth paragraph (depending on how the examiner chooses to deal with it) for an improper dependent claim. If he can figure out what it's supposed to depend upon, he'll probably use fourth paragraph and require correction. If he can't figure out what it's supposed to depend upon, he'll probably use second paragraph to basically say, "I cannot figure out WTF you are trying to claim, correction is respectfully required."

See, the patent system is so easy to understand, everybody CAN be an expert.

Look up interference practice in the MPEP sometime.

Look up interference practice in the MPEP sometime.

Why do you have the patent?

Because he invented something, and the one right granted by the original Constitution was his right to seek patent protection for disclosing it.

Is it to extort money from others that come up with the same idea independently, simply because you patented it first?

It sounds like you would deny this man his Consitutional right to a patent. There is a word for trampling the rights of an individual for the sake of the masses, of course.

If you file a patent, and then worry about others potentially using it without your permission 19 years later... well, I simply disagree that this is the 'limited monopoly' that the founders envisioned.

And if that's what you say, then I simply disagree that you understand how and why the patent system was designed. Of course, I'm only speaking as a person who has read the majority of the manual of patent examining procedure, has read thousands of patents, has performed hundreds of legally justified prior art searches, and is paid to write patentability opinions. You have a much lower UID than I; you're clearly the expert among us.

It sounds more like a lottery ticket, which this suit reeks of.

I agree. Sometimes it sucks, but that's how the system has always been designed. Suppose you invent something that's 15 years ahead of its time. Nobody even wants to use it for 15 years. As you have explained, a patriot like yourself would deny that inventor his Constitutional rights to a patent as punishment for inventing something 15 years ahead of its time. Ya know, some governments have shot people for wearing glasses - it was a sign that they were educated and a potential threat to the ruling class. They also trampled the rights of a few for the sake of the masses.

Suppose you patent something, meaning it has been published and publicly disclosed. Maybe you're licensing it to CorpA for 15 years, or maybe you're not licensing it to anybody because you don't want to or you didn't know anybody was using it. Again, a fine patriot such as yourself would deny the inventor his Constitutional right to benefit from his intellectual endeavor and contribution to US technology. Bravo! Definitely forward thinking on your part.

Thanks for the insight. Wow, I'm really convinced that you're the reasonable person and my way of thinking was WAY out of line. Oops - I wouldn't want to admit to any thoughtcrime, would I? I'll just keep my head down and pray to Leader that I don't accidentially invent anything that's 15 years ahead of its time.

And remember kids, books are bad. If you read a book like the MPEP then you would unlearn all the dogma spouted by people who are not experts in patent law, and then you'd switch to the evil side, the side with facts and understanding.

Seriously, I linked to the MPEP for a reason.

"The MPAA gave these guys a couple free DVDs, it is not like these gifts were large sums of money."

No, no, you are using the wrong equation. You need to use tyhe one where each work is worth $150,000.00:

http://www.bitlaw.com/source/17usc/504.html

all the best,

drew

These images of an early Greek papyrus are clearly copyrighted by Oxford.

There is a technicality in U.S. copyright law (17 USC 303) that applies only to works fixed before 1978 but published between 1978 and 2002, that such works are copyrighted at least until December 31, 2047. Is this the case? I can't tell because the copyright notice at the Bodleian Library copyright page is incomplete, lacking a year of first publication.

If the manuscript was first published before 2003: It falls under this technicality and is copyrighted until December 31, 2047.

If the manuscript was published on or after 2003: Oxford claims a copyright, but is it enforceable in the United States?

ObTopic: The works that are the subject of this article are first published in 2004 or 2005, so the special dispensation for works first published in 1978 to 2002 inclusive does not apply.

And, no, [consumer time base correctors are not] a violation of the DMCA, as that's not digital.

"DMCA" has nothing to do with "digital" except in the name. For example, see 17 USC chapter 13 about boats, enacted as a rider to the DMCA. More specifically for this case, 17 USC 1201(k) deals directly with gain control technology, though not mentioning Macrovision brand by name.

And, no, [consumer time base correctors are not] a violation of the DMCA, as that's not digital.

"DMCA" has nothing to do with "digital" except in the name. For example, see 17 USC chapter 13 about boats, enacted as a rider to the DMCA. More specifically for this case, 17 USC 1201(k) deals directly with gain control technology, though not mentioning Macrovision brand by name.

At Overclocked Remixes, the mixers take commercial work and change it making it their own.

The owner of copyright in a musical work has the exclusive right to authorize sound recordings, except as part of a royalty-based compulsory licensing scheme.

This is legal because they aren't selling their works.

But they are still reproducing phonorecords of sound recordings of copyrighted musical works. Have you done a full fair use analysis of OCR's situation using all four factors, or have you looked only at the non-profit nature of the venture? If the latter, then it's likely copyright infringement, potentially subject to statutory damages even if actual damages are zero.

Notice that it implies that you own a copy in the law, not liscence.

In the phrase "owner of a copy", "a copy" is the disc that the computer program is shipped on. 17 USC 101 explains:

"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed.

Who is the "owner" of the shiny disc is determined by state law, which usually implements the Uniform Commercial Code. Based on my limited understanding of retail law, "licensing a copy" would sound more like renting copies from the publisher, which in fact is the case in some site license agreements.

But I still don't know what makes these EULAs valid.

One theory is that it's the anti-circumvention provisions (17 USC 1201) enacted as part of the Digital Millennium Copyright Act. When you buy a copy of a computer program, you become the owner of a copy. However, it is encrypted and useless to you without decryption, and the conspicuous statement on the box makes this limitation known to you before the purchase. The installer is an access control mechanism that decrypts the program in exchange for your assent to what amounts to a non-interoperate agreement. Circumventing this installer may break the DMCA.

The thing that gets under our (the god damn geek anti-patent people's) skin is that the patent office now doesn't bother to figure out the difference. They just rubber-stamp anything you come up with and let the courts figure it out later if need be.

The patent office has strict requirements handed down from the courts as to what they can call obvious and non-obvious. If you can think of a better way to determine when something is obvious the world would love to hear it, but until then they will use the system they are given. If you want to read about the requirements of obviousness (which is highly reccomnded before replying), check out sections 2141-2145 of the Manual of Patent Examining Procedure.

under copyright law, Microsoft's license is the only thing that allows you to use their software at all

How, given 17 USC 117 and foreign counterparts?

1. Reproduction
2. Creating derivative works
3. Distribution
4. Public performance
5. Public display

Then comply with 35 USC 103 and prove it is obvious.

35 USC 103

Here's some guidance.

MPEP 2141

Also see MPEP 2141.01 through 2144.09.

If you cannot achieve this, you fail to prove that the patent is obvious. "Obvious", as defined by the dictionary, is meaningless in the context of prior art.

He said it recently expired, so it would have had a 17 year term from the date it issued. Let's be generous and figure that it was filed in 1990. All you have to do is provide the necessary references that predate June 1989 and comply with the MPEP sections I've cited. (June 1989 because the it's trivial to file an affidavit and move your priority date back by 6 months.)

Of course, "Wow, that's a lot more complicated than I thought," is a perfectly acceptable response.

Simply infringing on copyright is not necessarily damages.

Bull. See 17 USC 504(c).

Truthfully, your "right" to view SOMEONE ELSE'S movie in the form and fashion you choose has never existed.

Huh? Where did you get that idea from.

Copyright specifially grants the general public certain rights for fair use. Viewing the movie in the form and fashion you prefer is one of those rights. Copyright also limits the copyright holder's rights; they don't have the rights you seem to think they do. Here is a list of rights granted by copyright, the list is from bitlaw.

• the right to reproduce the copyrighted work;
• the right to prepare derivative works based upon the work;
• the right to distribute copies of the work to the public;
• the right to perform the copyrighted work publicly; and
• the right to display the copyrighted work publicly.

Where in that list does it say that the copyright holder can take away my right to choose the form and fashion with which I view the movie? It says I can't use the copyrighted material in a public display or performance, but there is no restriction on form and fashion at all.

One last thing. You don't own a movie, you own a copy of the movie that you have purchased viewing (and in a small way, copying) PRIVILEGES for.

Sure, I don't own the movie... BUT THE COPYRIGHT HOLDER DOESN'T OWN THE MOVIE EITHER. There is no ownership with copyright; there are only certain rights that the copyright holder can exclusively use for a limited time. When the copyright expires, even those exclusive rights cease to matter. There is no ownership by ANY party. Society has graciously granted a copying and performance monopoly to the movie studios for a limited time, but society NEVER gave the movie studio an ownership of the movie.

It isn't possible to patent the idea of a vibrating controller. This is explicitly forbidden, and IMNSHO, for good reason.

Hm, care to elaborate? Is there a particular statute or case law you're referring to? If so, I think you're mistaken. If you are the first person to come up with the idea of a cotton gin (vibrating controller) and file a patent that's broad enough to cover "cotton gin" ("vibrating controller"), then you get the patent for it. I'm aware of no statute that forbids such a patent, and indeed this is precisely what the system was designed to protect.

What you are not entitled to are every improvement upon that cotton gin (vibrating controller). In your disclosure, which covers how to make and use a cotton gin (vibrating controller), you can toss in some other embodiments (It might be pink, it might be made of plastic, it might have flashing LED lights) but you do not have patent protection for the non-obvious improvements that were not disclosed by your patent (a fundamentally better vibrating mechanisim, those little fans that cool your sweaty hands while you play, or a vibrating controller with a more "pleasing" form factor.)

Such methods are esoteric because they are more expensive and/or less inheriently reliable.

Not necessarily - they would simply need to argue and prove that their method is a non-obvious improvement or otherwise not disclosed by your patent. I'm not an ME, but it could be as simple as a different design for the weight that allows greater control over the vibration output. Perhaps a motor with two driveshafts and two weights could produce irregular vibration patterns. Heck just about anything so long as it is not something disclosed by your patent.

Apparently, you can attach an idea too general to be patented to an implimentation too obvious to be patented, and get a patent. I find this absurd, and believe it demonstrates a certain lack of thought on the part of the patent office.

Uh, really? The Patent Office is not part of the legislative branch of government; the Patent Office does not create the laws that define what can and cannot be patented. The Patent Office doesn't even get to decide HOW patents should be examined - the Patent Office is subjected to the rulings of the judicial branch of govnernment whenever these infringement suits are produced by judges or when a patent application reaches the board of appeals, federal circuit, or Supreme Court. In the meantime, the Patent Office just follows the laws and previous court rulings to try to be consistent and legal.

Additionally, I still don't think you fully appreciate that "obvious" as regards to patents has almost nothing to do with "obvious" in the dictionary. I've provided the following links as a highly condensed taste of the beginning of what "obvious" means regarding patents. This is like learning Computability Theory (my expertise) in 10 minutes.

MPEP 2141 See especially "Basic considerations which apply to obviousness rejections". I stress basic.

MPEP 2143 Also read through 2143.03

My thoughts on this Immersion v. Sony thing? Woah. I can't believe Sony was found infringing. I have no idea what went on during the prosecution of Immersion's patents - attorney arguments could have gutted or amplified the weight of the patent claims, but you and I have no idea until we read the prosecution history. The USPTO can only afford to do a $1000 prior art search, and both of these patents have roughly 50 references cited. The examiner doesn't appear to be asleep at the wheel, but we really have no idea what rejections were made during pros

Stop being so pedantic.

The practice of law is organized pedantry.

You don't call a movie director an author, nor a sculptor, nor a musician, nor an architect, nor a painter.

Copyright lawyers do. The term under copyright law for the person who creates an original work is "author", no matter what kind of work it is.

---- Legal pedantry above this line; larger scale policy discussions below. ----

So anyway, given your stated view of "can't use a work if you can't pay its author", what's your stance on the issue of orphan works?

Patents may list tons of prior art, material or not, but that is due to the Duty of Disclosure under 37 CFR 1.56. It is better to disclose anything that might be considered even remotely material to the patentability of the invention than to have a document surface at some later date that could invalidate the patent.

Patents may list tons of prior art, material or not, but that is due to the Duty of Disclosure under 37 CFR 1.56. It is better to disclose anything that might be considered even remotely material to the patentability of the invention than to have a document surface at some later date that could invalidate the patent.

Who in the MPAA actually verifys the files are illegal and not just some homemade porn or some songs from your friends band that he gave you?

I'm sure someone does. These are court cases being filed, not automated C&D letters. They probably have a small army of paralegals and/or clerks looking over every case prior to filing.

And how do they justify the number ($150,000) per digital file?

It's called 'statutory damages,' and that's the exact amount per title (that is, per copyrighted work, not per file -- as I understand it) codified in U.S. Copyright Law, 17 USC 504.

The MPAA needs more clear guidelines than "If we catch you with a digital file we don't like, it's gonna cost you $150,000"

Like what, exactly? I think they've been pretty clear with their "you can click but you can't hide" thing (see, for example, LokiTorrent). Blather about 'fair use' all you want, but every U.S. court that's looked at it (I'm too lazy to dig out cites at the moment, and I doubt anyone here would ever read them if I did, but look at the courts' opinions in the various Napster, Grokster, and Aimster cases) has stated that 'swapping' whole copies of copyrighted works is not a fair use, period, whatever the liability of the P2P manufacturer may be. E.g., swap a movie or TV show or song in the U.S., it's a copyright violation and exposes you to the potential of a lawsuit. Pretty clear, IMHO. But, then, I do have copyright training.

ObDisclaimer: IANAL

Where did you get that idea from? Yes you can mix GPL and CDDL code. Sun's License FAQ basically says so.

No, the FAQ says that files under the CDDL may be used with files under other licenses, but that those licenses might prohibit combining the code.

Look at it like this. I take your GPL code and I add some CDDL code. I modify it a bit to make it all work together happily. Then I distribute the source code on my website. What are you going to do? Sue me? You can't, I gave you the source code. GPL obligation fulfilled.

It's not that simple. If you want to mix GPL code and CDDL code in the same file, you cannot distribute the combined code under the terms of the GPL, which means that the GPL does not provide you with a copyright license for this. You would need a copyright license under an alternate license (if one exists), or need to be the copyright holder of the GPL code yourself. (The copyright holder can violate the stated license with impunity since they don't rely on the license for the authority to copy.)

You cannot combine GPL and non-GPL code in the same file with impunity, because the terms of the GPL are very strict and specific. There is no dispute that including GPL and non-GPL code in the same file creates a "derived work" under copyright law, and distributing (copying) such a derived work requires the copyright authority for the GPL code, either directly or via a license.

However, the definition of "derived work" is a legal gray area, and one that would ultimately have to be decided by the courts. Unfortunately, the answer to this question would probably vary on a case-by-case basis depending on the facts of each case -- and on a jurisdiction-by-jurisdiction basis as well, based on the precedents and laws applicable in each jurisdiction.

If you want to be safe, assume everything in the gray area is a derived work. This is the FSF's interpretation, and they will defend it, so unless you're prepared to be a test case (and possibly lose), think twice before venturing into that gray area!

The idea of "user does the link" as a method to evade the GPL was considered and discussed when GPL v1 was released. The FSF has always maintained that code written to work with GPL code is derivative of that code, making the "user does the link" scenario an attempt at evading the requirements of the license. However, this is a question of law, and the FSF's opinion isn't binding. To date, nobody seems willing to test the issue in court.

However, there is at least one precedent which suggests that the FSF's interpretation of copyright law may be too inclusive, at least in some jurisdictions. (Other jurisdictions seem to have different standards, which further confuses the matter.)

If the "Abstraction-Filtration-Comparison" test is used to determine what defines a "derived work", then code which simply uses the API of a library probably wouldn't be considered "derived" from that library, any more than using the Win32 API would give Microsoft copyright powers over Win32 applications or even Wine. Mixing and matching source files might be considered derived; it probably depends on the facts of the case.

Note that this does not apply to statically-linked binary executables -- those are unquestionably creating derived works by translating the sources and then combining them into the same file. Dynamic libraries, on the other hand, are also a gray area.

It's possible that you aren't creating a derived work by simply using the GPL code from other files, but the FSF believes you are. If you aren't, then the GPL and LGPL would be equivalent in effect. The GPL becomes moot with regard to non-derived works, which are even allowed to be aggregated on the same media. The plain text of the GPL makes this clear. But don't expect the FSF to budge on their interpretati

At least some members of the EU Parliament seem to want to see the patent initiative discussed under proper procedures, in the light of day and maybe even subject to public debate. Contrast with us poor bastards in the U.S., where software patents just kind of started happeneing without formal legislative process (thank you, Supreme Court).

1. The right to reproduce the work. (copying)
   
2. The right to prepare derivative works. (modifying)
   
3. The right to distribute copies of the work. (distribution)
   
4. The right to perform or display the work. (display) (These are listed as separate)
   

Is every single part of a film copyrighted individually?

Under United States law, reproducing and distributing a "substantial" portion of a copyrighted motion picture is usually infringement. An excerpt usually has to be really short for the third fair use factor to kick in.

For more information, go ask your own lawyer.

In effect, the EULA says that you can use the software by copying it's contents to your hard drive/memory only if you abide by the rules it lays out.

If I don't agree to a computer program's EULA, I can still copy whatever the h*** I want into RAM or to my hard disk, whatever's necessary to run the program. 17 USC 117(a)(1). The only way a publisher can force me to refrain from using a program if I disagree is by encrypting the program and requiring that I agree to the EULA in order to decrypt the software, using the DMCA if I don't.

Still, if the box says you have to agree to the EULA before using the software (lots of software seems to do this now) - you still can't use it.

The box can say that I'm the Prime Minister of Norway, but that doesn't make it true. 17 USC 117 states that it is not copyright infringment to use software that you've purchased, so you don't need anyone's permission.

To some people, "record" doesn't just mean vinyl with grooves in. I'm not familiar with British copyright terminology, but at least under U.S. copyright law, a "phonorecord" is a medium in which a sound recording is fixed, roughly corresponding to a "copy" of any other work. Examples of various types of phonorecords, or "records" for short, include Columbia 33.3 RPM LP, RCA 45 RPM single, Lear 8-track cartridge, Compact Cassette, Compact Disc Digital Audio, MiniDisc, MP3 CD-R, and any hard drive containing music files.

The public may submit prior art.
http://www.bitlaw.com/source/mpep/2203.html

The brief paragraph he gives about "prior art" for "ludicrous" patents indicates to me that he has never had an adversarial relationship with a patent attorney.

• The concept of "prior art" he gives would completely rewrite the foundations of 35 U.S.C. 102 and 103, which establish the concepts of "novel" and "non-obvious", yet he insists he doesn't want to perform radical surgery on the patent system.
• Tell a lawyer that he's prosecuting a "ludicrous" application. Tell a defense lawyer he's making a "ludicrous" defense. They'll laugh at your naivety. Absolutely adorable. They'll be "ludicrous" 29 hours a day and beat you up down with the law, take your money, and win the contest.
• And, it's adorable how he wants to reward people for proving someone submitted a "ludicrous" patent application. Again, I seriously doubt he's ever dealt with a patent attorney in an adversarial role. Lawyers will burn to death rather than let you douse them with water - unless you can prove to them that you have the legal jurisdiction to douse them with water. Prove that they have a "ludicrous" application? Please.
• He suggests that "a herd of patent lawyers" will lead the charge in proving what applications are "ludicrous". If I haven't made myself clear, the notion that you can prove that an application is "ludicrous" would be the most painful, brain-hurting, retarded process on the face of the Earth. What's to stop a corporation from backing a team of ludicrous application hunting lawyers from litigating the hell out of anybody they choose? They might lose, but they'll incur costs, they'll buy time in which they can file competing applications, or they might win a few. Is there ANY accountability on these leeches?

So, as much as you have asked for input, there's mine. The guy's heart is probably in the right place, but I seriously think he's out of his element.

Please show me where this is stated in patent law.

35 USC 102 forms the legal basis for the concept of "novelty". While many dictionaries may state "novel" and "unique" are synonyms - and they certainly are in everyday language - the Patent system lives in a parallel universe of legal speak. For example, you might read 35 USC 102 regarding novelty and draw some conclusions about whether or not a patent should be issued - but you will very likely be incorrect.

While 35 USC 102 is short and written in rather plain language for a Federal law, unfortunately knowledge of the law is insufficient to apply the law. That's why we have judges; their job is to interpret 35 USC 102 and produce case law. This case law is what defines the concepts of "novelty". Believe you me, you would be surprised by how specifically this concept is defined by case law, and also surprised by how different this concept is from the standard dictionary definition.

35 USC 103 forms the basis for rejecting an "obvious" patent. Again, reading and understanding this law is insufficient to form an opinion about a particular situation. There is a good amount of 102 case law, there are mountains of 103 case law. Once again, the concept of "non-obvious" is NOT what you will find in the dictionary, rather it is defined by decades of case law. While the USPTO often uses the language "a person of ordinary skill in the art", again there are piles of case law defining what this means. According to the examiners at the USPTO, a person of ordinary skill in the art has common sense and is reasonably intelligent. To the attorneys, it's debatable whether a person of ordinary skill can tie his own shoes. This conflict comes to a head in the language of 35 USC 102, which declares that "a person shall be entitled to a patent unless..." meaning that a person cannot be denied a patent unless they willfully give up (abandon the application) or a judge affirms that the USPTO's rejection is lawful.

What many people do not understand is that these laws, 35 USC 102 and 103, do NOT tell you WHAT can or cannot be patented, rather they establish the concepts of WHY a patent should or should not be issued. On Slashdot, people like to rant and rave about something being "obvious" - fact is, that doesn't mean anything. Hell, there is case law that declares "If prior art could have performed the claimed function, even though the claimed function is not disclosed, the difference is a naming convention and the claimed invention is not patentable." Proof positive that any tangible embodiment of a Turing machine teaches all software claims - a Turing machine could be configured to compute anything that is computable. However, that stance would conflict with the spirit and intention of 35 USC 101 which is intended to advance technology for the nation - surely we can agree that SOME things using software are novel and non-obvious. Finite element simulation was impossible before computers, as was nuclear simulation, flight control for the F-117A, and processing SETI data.

How does this get resolved? Case law. As it currently stands, software is non-statutory under 35 USC 101 for being an abstract algorithm. However, the flight control for the F-117A is truly a complicated invention that advanced technology. Current case law has established that a software process must be claimed in conjunction with a tangible embodiment, cannot be claimed without function (meaning it cannot be claimed as merely data

Please show me where this is stated in patent law.

35 USC 102 forms the legal basis for the concept of "novelty". While many dictionaries may state "novel" and "unique" are synonyms - and they certainly are in everyday language - the Patent system lives in a parallel universe of legal speak. For example, you might read 35 USC 102 regarding novelty and draw some conclusions about whether or not a patent should be issued - but you will very likely be incorrect.

While 35 USC 102 is short and written in rather plain language for a Federal law, unfortunately knowledge of the law is insufficient to apply the law. That's why we have judges; their job is to interpret 35 USC 102 and produce case law. This case law is what defines the concepts of "novelty". Believe you me, you would be surprised by how specifically this concept is defined by case law, and also surprised by how different this concept is from the standard dictionary definition.

35 USC 103 forms the basis for rejecting an "obvious" patent. Again, reading and understanding this law is insufficient to form an opinion about a particular situation. There is a good amount of 102 case law, there are mountains of 103 case law. Once again, the concept of "non-obvious" is NOT what you will find in the dictionary, rather it is defined by decades of case law. While the USPTO often uses the language "a person of ordinary skill in the art", again there are piles of case law defining what this means. According to the examiners at the USPTO, a person of ordinary skill in the art has common sense and is reasonably intelligent. To the attorneys, it's debatable whether a person of ordinary skill can tie his own shoes. This conflict comes to a head in the language of 35 USC 102, which declares that "a person shall be entitled to a patent unless..." meaning that a person cannot be denied a patent unless they willfully give up (abandon the application) or a judge affirms that the USPTO's rejection is lawful.

What many people do not understand is that these laws, 35 USC 102 and 103, do NOT tell you WHAT can or cannot be patented, rather they establish the concepts of WHY a patent should or should not be issued. On Slashdot, people like to rant and rave about something being "obvious" - fact is, that doesn't mean anything. Hell, there is case law that declares "If prior art could have performed the claimed function, even though the claimed function is not disclosed, the difference is a naming convention and the claimed invention is not patentable." Proof positive that any tangible embodiment of a Turing machine teaches all software claims - a Turing machine could be configured to compute anything that is computable. However, that stance would conflict with the spirit and intention of 35 USC 101 which is intended to advance technology for the nation - surely we can agree that SOME things using software are novel and non-obvious. Finite element simulation was impossible before computers, as was nuclear simulation, flight control for the F-117A, and processing SETI data.

How does this get resolved? Case law. As it currently stands, software is non-statutory under 35 USC 101 for being an abstract algorithm. However, the flight control for the F-117A is truly a complicated invention that advanced technology. Current case law has established that a software process must be claimed in conjunction with a tangible embodiment, cannot be claimed without function (meaning it cannot be claimed as merely data

Please show me where this is stated in patent law.

35 USC 102 forms the legal basis for the concept of "novelty". While many dictionaries may state "novel" and "unique" are synonyms - and they certainly are in everyday language - the Patent system lives in a parallel universe of legal speak. For example, you might read 35 USC 102 regarding novelty and draw some conclusions about whether or not a patent should be issued - but you will very likely be incorrect.

While 35 USC 102 is short and written in rather plain language for a Federal law, unfortunately knowledge of the law is insufficient to apply the law. That's why we have judges; their job is to interpret 35 USC 102 and produce case law. This case law is what defines the concepts of "novelty". Believe you me, you would be surprised by how specifically this concept is defined by case law, and also surprised by how different this concept is from the standard dictionary definition.

35 USC 103 forms the basis for rejecting an "obvious" patent. Again, reading and understanding this law is insufficient to form an opinion about a particular situation. There is a good amount of 102 case law, there are mountains of 103 case law. Once again, the concept of "non-obvious" is NOT what you will find in the dictionary, rather it is defined by decades of case law. While the USPTO often uses the language "a person of ordinary skill in the art", again there are piles of case law defining what this means. According to the examiners at the USPTO, a person of ordinary skill in the art has common sense and is reasonably intelligent. To the attorneys, it's debatable whether a person of ordinary skill can tie his own shoes. This conflict comes to a head in the language of 35 USC 102, which declares that "a person shall be entitled to a patent unless..." meaning that a person cannot be denied a patent unless they willfully give up (abandon the application) or a judge affirms that the USPTO's rejection is lawful.

What many people do not understand is that these laws, 35 USC 102 and 103, do NOT tell you WHAT can or cannot be patented, rather they establish the concepts of WHY a patent should or should not be issued. On Slashdot, people like to rant and rave about something being "obvious" - fact is, that doesn't mean anything. Hell, there is case law that declares "If prior art could have performed the claimed function, even though the claimed function is not disclosed, the difference is a naming convention and the claimed invention is not patentable." Proof positive that any tangible embodiment of a Turing machine teaches all software claims - a Turing machine could be configured to compute anything that is computable. However, that stance would conflict with the spirit and intention of 35 USC 101 which is intended to advance technology for the nation - surely we can agree that SOME things using software are novel and non-obvious. Finite element simulation was impossible before computers, as was nuclear simulation, flight control for the F-117A, and processing SETI data.

How does this get resolved? Case law. As it currently stands, software is non-statutory under 35 USC 101 for being an abstract algorithm. However, the flight control for the F-117A is truly a complicated invention that advanced technology. Current case law has established that a software process must be claimed in conjunction with a tangible embodiment, cannot be claimed without function (meaning it cannot be claimed as merely data

http://www.bitlaw.com/software-patent/history.html
supporting the need for software patents

Buahahaha. I don't think there is anything in there supporting software patents. It merely documents how the 5 member majority on the Supreme Court screwed up in Diamond v Diehr when they ordered the US patent office to issue an invalid patent. The entire case was about the patent office rejecting it as invalid.

If you actually read Diamond v Diehr, the 5 member majority supporting such a patent discussed at great length that they did *NOT* intend the ruling to lead to the patentability of software. The other four members wrote a dissent explaining exactly how the majority screwed up. The majority essentially ruled that 2+2=5 and claimed they had absolutely no intention of allowing 2=1. However once you allow 2+2=5 it is impossible to aviod a sequence of valid steps reaching 2=1. Our current software patent system is exactly what the 5 member majority stated they did not intend to permit.

There is no "need" for software patents. Software is protected by copyright. Why the heck should software be the only thing on earth with broken double coverage and broken double restrictions of both copyright and patents?

-

copyrights are not about removing rights of consumers

Despite doing precisely that.

Sort of like land ownership rights removing your right to walk on it?

To this, I must ask, why the fuck should I tolerate this? Should I let you come over to my house and eat my food just because you're an artist? You're already deciding for me what I can and cannot say or write.

1) Using profanity is a common tactic to strengthen one's words. In a debate, profanity seldom has an effect other than to make the user look foolish and stupid. Best to refrain from using them!

2) As an artist (note that I never claimed to be one) how has copyright allowed me to forcibly eat dinner at your house? If you listen to MY music, or use MY software, or wish to benefit from MY database, I have a right to demand MY dinner, or don't use my stuff. Simple, no? This way, we let the laws of economics determine the viability of my products, as with any other business or industry. It's amazingly fair and has withstood the test of hundreds of years of time...

3) How would such an artist decide what you can/cannot say or write? What, you can't COPY what I said or wrote? (Oh, but wait, that's not YOU saying it, that's you quoting ME.... a VERY different matter.) Note that the IDEA is not copyrighted, just my specific representation of it! If I wrote a book on, say, biodiesel, and you liked it, you could write your own book, and include the exact same facts and ideas as in my book. You can even cite and quote references from my work!

In all, I have to say, yours is a very poorly thought out argument. Come back when you've thought this through...

Publish your ideas in a reputable academic journal - one that somebody working in your field would be expected to read. You need to be able to prove, maybe years later, that your ideas were available to the public on a certain date.

If someone later manages to get a patent on your idea(s), you can file a request with the USPTO to ask them to strike it down or narrow its scope. You can cite your publication as prior art that the PTO should have considered. The Microsoft FAT patent was invalidated in just this way.

The relevant section of the law is 35 USC 301. You have to pay a fee to file the form, but it's pretty small. For added poetic justice, go to the small claims court and sue the bastard who patented your idea to get the fee back.

(A) The claimed invention must be considered as a whole;

(B) The references must be considered as a whole and must suggest the desirability and thus the obviousness of making the combination;

(C) The references must be viewed without the benefit of impermissible hindsight vision afforded by the claimed invention and

(D) Reasonable expectation of success is the standard with which obviousness is determined.

If you'd like to explain to me the basis for the quoted statement,

See for example the non-obvious section described here.

Note that I am not a lawyer and sometimes argue from ethical as well as legal considerations.

as well as the assertion that a givern patent examiner is incompetent and can't understand a change in vocabulary, I'd love to reply to that.

Sorry if I've caused offence, I may have expressed that badly.

What I meant to say, and this is a problem for all software engineering and research, not just software patents, is that software and marketing people are continuously "inventing" software structures which are just rehashes of old ideas with new terminology. Simple keyword-type examples include "metadata" (that's just data), "write-once, run-anywhere" (=portable), "thin client" (=dumb client), "client server" (=remote procedure call=distributed objects=remote services=network services=backend/frontend=...), "index" (=hash table), "database query" (=structured search=data extraction=data retrieval). The list goes on forever. Sometimes it is obvious only to a specialist that two "concepts" are the same or overlapping.

The problem with software is that it is almost purely a creation of the mind with insufficient physical reality to ground it. It is just too easy to create castles in the air.

In the context of bad patents an example is the todo list. It should be called "keyword search and list" and have been rejected immediately. Most programmers do this every day with general purpose search programs and text editors. The patent is merely a specific example of the general application.

---

It's wrong that an intellectual property creator should not be rewarded for their work.
It's equally wrong that an IP creator should be rewarded too many times for the one piece of work, for exactly the same reasons.
Reform IP law and stop the M$/RIAA abuse.

All this talk about software patents made me do a little digging, and I found a (pretty good) site relating to them:
http://www.bitlaw.com/software-patent/

They didn't copy the jokes, routines, or characters; they have different kinds of movies and different themes and so forth. They are not doing the same thing.

They're not doing the exact same thing, word for word--which would be protected by copyright--they're doing the same KIND of thing--protected by trademark.

View Bitlaw's Eight factors for likelihood of confusion to indicate possible trademark infringement. Here are the ones that appear appropriate:

1. Phonetic similarities. "Mister Sinus" versus "Mystery Science". The SOUNDEX values for these are exactly the same. A reasonable person would agree that the former was styled after the latter.

2. Similaries in goods and services. They're providing the same service, humorous commentary during a movie intended to parody the movie while being viewed. They may use more adult-oriented humor, but it's the same service.

3. The strength of the plaintiff's mark. MST3K pioneered the idea and would be the top of anyone's list for this kind of activity.

5. The intent of the defendent in adopting the mark. They were clearly trying to do something similar to MST3K, and even approached them to license the trademark. They were turned away, and created a similar mark for a similar product. The intent appears pretty clear.

Four of the five first items, which this site claims are the most important, seem to indicate that there's a high likelihood of confusion between the two trademarks.

IANAL (and clearly neither are you) but this sounds slam-dunkish.

"However, he has to justify that opinion in his findings, or an appeals court will throw it out."
This requirement does not apply to the Supreme Court, however.

In the long run, another Supreme Court may overturn an older Supreme Court's bad decision (e.g. Brown vs. Board of Education of Topeka) but this often takes decades. With respect to software patents , the courts created their own law:
"In the 1980s, the Supreme Court forced the P.T.O. to change its position. The 1981 case of Diamond v. Diehr provided the first instance in which the U.S. Supreme Court ordered the P.T.O. to grant a patent on an invention even though computer software was utilized. In that case, the invention related to a method for determining how rubber should be heated in order to be best "cured." The invention utilized a computer to calculate and control the heating times for the rubber. However, the invention (as defined by the claims) included not only the computer program, but also included steps relating to heating rubber, and removing the rubber from the heat. The Supreme Court stated that in this case, the invention was not merely a mathematical algorithm, but was a process for molding rubber, and hence was patentable. This was true even though the only "novel" feature of this invention was the timing process controlled by the computer."

The History of Software Patents.
Can't patent Mathematical Algorithms.
Software isn't THE process. Software simply executes a process by means of mathematical expressions/algorithms.

Trademarks don't necessarily need to be registered. See http://www.bitlaw.com/trademark/common.html for a brief summary of common law trademark rights, but also do a google search http://www.google.com/search?hl=en&lr=&ie=UTF-8&q= common+law+trademark+and+internet&btnG=Search What you'll find is that trademark law is actually a lot more complex--and often contradictory--than you think.

But it was, to the limit of patentability that was available at the time. This was before Diamond v. Diehrand the US patent office deemed software as "pure mathamatics" and unpatentable. The patent that was developed from Unix, the setuid patent was written in terms of the gates in memory that got flipped and read to check access control.

If Bell Labs hadn't assigned the patent to the public domain (supposedly over the cost of collecting license fees) Then development on Unix clones would have started much later.

*snip*

IIRC, the basic difference between the two is in the penalties for failing to comply with the license or contract. If you fail to comply with a license the only real penalty is loss of the privleges granted by the license. If you fail to comply with a contract, there are various penalties (usually defined within the contract itself.)

ProCD, taught in every first year Contracts course in law school. From the decision (first sentence under II):

"Following the district court, we treat the licenses as ordinary contracts accompanying the sale of products, and therefore as governed by the common law of contracts and the Uniform Commercial Code"

The next sentence, "Whether there are legal differences between "contracts" and "licenses" (which may matter under the copyright doctrine of first sale) is a subject for another day," has yet to be tried, and therefor this case is still authority.

So, to put it simply, you're not the truth.

So, put simply, I am and you're wrong.

-truth

I am pretty sure that his patent would have run out by now. Term on patents in the US is 20 years with a possible extension of 5 years if there was "Interference delay or secrecy orders [or] Extension for appellate review.1"

Also interesting to note that he just missed the first patent laws in the US. He died in 1790 and "George Washington signed the First United States Patent Grant on July 31, 1790, and the patent examiner was Thomas Jefferson.2"

Finally, as someone else mentioned, he was a British subject in 1752 when he invented the lightning rod and the earliest known British patent "was granted by Henry VI to Flemish-born John of Utynam in 1449. The patent gave John a 20-year monopoly for a method of making stained glass, required for the windows of Eton College, that had not been previously known in England.3"

1 - USC 35
2 - about.com
3 - UK Patent Office

Show that the patent does not describe the best method ("the preferred embodiment") for solving the given problem (many Japanese companies have trouble with this one in the American patent system).
Virtually no U.S. domestic patent applications run into this pitfall. All that is required is a brief explanation of the 'best mode' for making and using the invention at the time the application was filed. Patent applications generally do indicate how the invention is best implemented and for what purpose.

Prior art
The term 'prior art' is bandied about (often mistakenly). The term refers to the art as defined by 35 USC 102. While section 102 defines 'novelty', it also defines what is available under the umbrella of 'prior art' for the 'obviousness' standard of 35 USC 103. The surest way to invalidate a patent is good 'prior art' under secion 102 (e.g., it was done more than one year prior to filing of the patent application).

Issues regarding obviousness (hard to argue that one), or being implementable by someone of ordinary skill in the art within one year
Patent validity has nothing to do with the subject matter 'being implementable' within one year. In fact, it's just the opposite. The patent is supposed to describe the invention in sufficient detail so that one of ordinary skill could practice it immediately. The one-year statutory bar is where one has practiced the invention (or an 'obvious' variant), sold it, offered to sell it, etc., more that one year prior to the application for patent. 'Obviousness' is a weak (though often used) way to attack the validity of a patent. What is commonly referred to as 'obvious' (i.e., anyone could have done that) is not the same as the legal standard of 'obvious.' The question of patentability/validity under the 'obviousness' standard is not whether someone could do what the invention describes, but rather whether someone (or combination of prior art) previously did make or suggest making the invention.

That's a common RIAA/MPAA lie that appears to be sticking. Fair Use is stated legally in 2 places that I know of.

1) Section 107 and of the US Copyright Act. This act defines US copyright law and discusses derivative works, transformed works, etc. This law determines what is and is not a copyright violation, and mentions backups, copies for educational use, etc.

2) It is clarified in several supreme court cases. These rulings were later made into laws after they were upheld several times.

Some links:
Fair Use at the US Copyright Office's web site
Fair use explained by BitLaw
Stanford Copyright & Fair Use

"Incidentally, with a few exceptions like the compiler, the open-source code in SFU is BSD-licensed, not the GPL-licensed."

RTFA, it specifically states that Microsoft is replacing the gpl'd code in SFU with SCO Licensed code.

No, it says Microsoft is replacing the 'open-source' software. That includes some GPL'd software too, mainly GCC, which is exactly what I said. Have you even used SFU? Most of the open-source code is from OpenBSD, with, again, the GNU compiler toolchain being the most prominent GNU software.

And uses the excuse that commercial code can't be shipped alongside gpl'd code as the reason it's not included with windows (which is ridiculous of course).

The GPL is vague enough with respect to 'a work based on the Program' that I wouldn't bet my business on it. Given Stallman's admission that the LGPL was designed to ensnare developers, so that a later conversion from LGPL to GPL would force them to GPL their own code, I wouldn't put anything past him. If he thought it would help his 'Free Software' cult, he'd be happy to sue Microsoft over GCC in Interix.

Yes there is a registered trademark, yes it's meaningless. Yes there is a generic term unix that has been in use as a generic term to refer to any unix-like system for over a decade.

If and when a court rules that UNIX is no longer a registered trademark of The Open Group, you'll have a point. 'UNIX' is arguably a 'famous' mark as well, like 'Xerox', for example, which adds further protection under American law. Note that all of this applies to commercial use, not common use, e.g. Xerox could sue Canon if the latter called its copiers 'xerox machines', but obviously can't sue someone who uses 'xerox' to mean 'copy' (which apparently some people do).

If Unix were merely a trademark, then you'd have no point. If Unix is the generic term then you have no case.

So what exactly is it your trying to prove in all this?

I'm simply stating the facts, in response to an erroneous claim in your post. The facts are:

* UNIX is a registered trademark of The Open Group
* Interix is UNIX (so are Solaris, AIX, Tru64 UNIX, SCO UnixWare, etc.)
* Mac OS X is not UNIX
* BSD is not UNIX
* Linux is not UNIX (nor is GNU)

You don't have to take my word for it either. The Open Group has already taken Apple to court over the latter's alleged violation of the UNIX trademark rights. See the following news.com article from last year.

NM, I've been baited by a troll, it's time to accept it.

Always an easy escape route for someone who's wrong, and afraid to admit it.

No.. because EULAs and Privacy policies in general are non-binding.

I am a broken record that repeats the words ProCD Inc. v. Zeidenberg whenever someone claims that EULA's have never been upheld in court. Unfortunately they have.