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This page gives the best side by side comparison I can find.

it's got a picture of one of the BBs, the patent they filed, and the Typo keyboard.

The '964 patent, entitled "HAND-HELD ELECTRONIC DEVICE WITH A KEYBOARD OPTIMIZED FOR USE WITH THE THUMBS", was granted on December 8, 2009, and among its multiple independent claims, of particular note is independent claim 19 which claims "[a] keyboard for use with a mobile communication device". Claim 19 includes the limitations of "twenty-six letter keys and at least one other key" distributed in three rows, that are symmetrically distributed along the face of the electronic device. Furthermore, claim 19 includes the limitation of:
"five letter keys in the upper row being disposed on each side of the vertical reference, five letter keys in the middle row being disposed on one side of the vertical reference and four letter keys in the middle row being disposed on the other side of the vertical reference, and four letter keys in the lower row being disposed on the one side of the vertical reference line and three letter keys in the lower row being disposed on the other side of the vertical reference line..."

So, the extent to which the keys skew away from being flat for ergonomic reasons seems to be enumerated in the patent.

Now, as to the validity of the patent, I can't say.

But I will agree that specific design details for ergonomics are pretty much exactly copied in the Typo .. so if they said "give me a keyboard just like the BlackBerry", I can see why they'd have settled.

But there are specific things and details in there. And it's at least slightly more specific than a small, black QWERTY keyboard. Down to quite specific curvatures.

Actually, that's exactly how it works. When you have an exclusive right to do something and someone else does it without your permission, then that's infringement. A copyright owner does not need to prove anything further; your modification, reproduction, or distribution without their permission is prima facie infringement. If you as the defendant want to turn around and claim an affirmative defense, like Fair Use, then you need to prove that.

Sigh. Unless it is clearly codified that it is not an infringement. USC 107 lists several examples of Fair Use and declares them to be not an infringement which contradicts your statement that it isn't Fair Use. Please read carefully again.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work . . . is not an infringement of copyright.

In USC 107 it does not say only these examples or "limited to". Second, when you file a lawsuit you have to have standing. Suing over copyright without considering Fair Use first will likely get you into trouble. Oh you can sue for any reason, but the court will not be happy. Specifically in the DMCA, suing without considering Fair Use has been ruled against the copyright holder. See Lenz v Universal.

There may well be, but that's not what you said.

Sigh. Please read above. I said building a hackintosh is neither easy nor trouble free. Someone said it wasn't legal. I said Fair Use allows for it. Fair Use is not an infringement of copyrights even by your definition.

No, it's an application of the law. Until a court rules that your conduct is "Fair Use", then your use is automatically infringing because by definition you wouldn't need to claim fair use in the first place if it would otherwise be noninfringing.

Again a lack of logic: USC 107 already says Fair Use is noninfringing. And a lack of knowledge. Courts have already ruled it is a computer program is not an infringement given :

(1) that such new a copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

Installing a hackintosh on hardware that it is not supposed to run on covers (1).

You've yet to say anything that would qualify your examples as Fair Use. No omnipotence is needed to say that you've failed to meet your burden.

No you clearly claim to know something about something you can't possibly know. That is claiming omnipotence which is exactly the nature of my rewrite. Courts have ruled parody is Fair Use but since you can't bother looking it up: Wind Done Gone.

Testing hardware compatibilities that Apple does not offer is not helpful to your argument--if your OS X-driven product requires something other than what's available on a Mac, then you've got no legal market for it. I'd strongly suggest reading up on the kinds of activities that fall under the research exception before continuing to cram your foot down your throat.

What are you smoking? By that argument no one could create any peripheral or software ever for any machine beyond what the manufacturer intends? I suggest you read your own arguments carefully and think them through.

Sigh. Laches is an remedy for delay against a defendant. What you're talking about is equitable estoppel

Again what are you smoking? Did

If the computer screen is an essential element, then I don't need a patent license for my free software that draws lines using Bresenham's algorithm, because I'm not using Bresenham's patented computer screen!

The patent doesn't claim that the screen is itself new or patented. The patent claims the method of displaying a line on any computer screen. It's no different than a patent on, say, a method of catching mice using a bucket of water, a ramp, and a piece of bait dangled above the bucket. It doesn't matter where you get the bucket, the ramp, or the bait. The patent covers the method of using these pre-existing objects together to catch mice.

You can't have it both ways. If a physical object that I'm not selling or giving away is essential to the patent, then my free software is not covered by the patent.

I'm not trying to have it both ways. This is a long-settled area of the law, codified in the statute. The end users would be directly infringing the patent, and you would likely be liable for indirect infringement. Imagine a patented mechanical device that is held together with screws. If someone sells all of the parts, minus the screws, plus instructions on how to put it together and where to buy the screws, that's indirect infringement. In this hypothetical you're distributing the software knowing that end users will use it in an infringing manner with their computer screens (which, again, could be any kind of computer screen).

That isn't pulling good results, I've only skimmed this article so far but it looks like a decent starting point.

http://www.ladas.com/Patents/USPatentHistory.html

1. break down the plaintiff’s program into its constituent structural parts (“abstraction”);

2. examine each part for incorporated “ideas,” elements taken from the public domain, methods of operation, processes or procedures, or otherwise unprotected material (“filtration”); and

3. compare the remaining kernel of creative expression, if any, to the work alleged to infringe at each level of abstraction (“comparison”).

They further explain:

The scenes à faire doctrine is often applied in software cases because it is frequently impossible to write a program in a particular computing environment without employing certain standard programming techniques and design elements. This is because certain functions, data elements, and the order of operation of a program can be dictated by such things as the type of computer on which the program will run, the programming language used, the operating system environment, governmental requirements, industry demands and standards, and widely accepted programming practices.

I suspect the reason SCO didn't filter this code is because if they did, there would be nothing at all left to present to the court as their fig leaf to avoid being charged with perpetrating a fraud on the court.

Sorry, Here's the link.

Typo in my HTML again...

While I'm on the subject (and waiting for the timer to allow me to post again :) -- here are the two books in my library relating to patents:

The English Patents of Monopoly: A History by William Hyde Price (heavy economics bent)
Inventing the Industrial Revolution: The English Patent System, 1660-1800

There is plenty of material online about both the English patent system and the American patent system... but the foundations of the American system lie in England and in France.

You are still incorrect. Liability does not turn on commercial activity. The patent holder could seek an injunction, which is often just as bad as financial damages. Apple could easily file an infringement suit against Palm to stop them from releasing the phone. Read the case Madey v. Duke. What you are claiming is common and incorrect belief.

Thank you. This is also why universities are liable for infringement when they simply use a patented invention in research. Example

But it seems like such a short jump from there to Coca Cola declaring all rights over 'red'.

Too late. In Qualitex Co. v. Jacobson Products Co., SCOTUS held that, "sometimes, a color will meet ordinary legal trademark requirements. And, when it does so, no special legal rule prevents color alone from serving as a trademark." They awarded trademark rights to "green-gold" to Qualitex.

But of course, the issues are very different. Even at the physical level - most matter is opaque to the visible spectrum but transparent to radio.

Lick my stick you twit:

http://www.ladas.com/BULLETINS/1995/1195Bulletin/US_FirstsaleCollectMark.html

Sure, they do *now*, but who knows?

http://www.ladas.com/Patents/Biotechnology/USPharm PatentLaw/USPhar32.html

I'd hire a particularly expensive lawyer just to make sure the legal fees being sent to Mr. Goldman's office are as high as they can possibly be.

http://www.m-cam.com/~watsonj/usptohistory.html
http://www.ladas.com/Patents/USPatentHistory.html
http://www.law.cornell.edu/uscode/html/uscode35/us c_sup_01_35.html

i could go on, but I think you get the idea.

He will be OK I think.

According to this link diagnostic, surgical and therapeutic methods for the treatment of humans or animals are not patentable in Vietnam.

Moreover, Vietnamese patents expire after 20 years, and according to that link the endoscope was invented in 1806!

In certain countries, including the United States, it is also possible to deposit a local trademark registration with the local customs authorities, who will conduct spot checks of imported goods to make sure that the imported goods bearing the trademark are authorized. If unauthorized uses of a registered trademark are discovered, the products will be confiscated and the trademark owner will be notified, following which, within a short period of time, the trademark owner may bring action against the infringing goods.

That said, it's taken 100 years for colors to be brought into the international trademark framework, and very few sounds. I doubt smells will be included in our lifetime.

But the changes are very recent, and there's every indication that "IP Rights" will continue to be rapidly expanded in the near future.

From Ladas & Parry LLP an IP law firm.

However, until recently, United States courts were still divided over the issue of single color marks.[8] Finally, on March 28, 1995 the United States Supreme Court resolved unanimously that, "sometimes, a color will meet ordinary legal trademark requirements. And, when it does so, no special rule prevents color alone from serving as a trademark."[9] However, the Court held implicitly that single colors may not be inherently distinctive, but like descriptive marks or words, may only be protected when they have acquired a secondary meaning through use. The Court also found that the green-gold color at issue served no function other than as an identifier and the Court dismissed the "color depletion" problem raised by the plaintiffs.

...

Marks consisting of scents are the most problematic. In addition to the practical difficulties of describing such marks sufficiently to determine where conflicts may exist, there is little legislation or jurisprudence on the subject. A scent mark was first recognized in 1990 in the United States, where a scent, described as a high impact, fresh, floral fragrance reminiscent of plumeria blossoms, applied to sewing thread, was deemed a registrable trademark.

So it seems that we already have smells incorporated into trademarks in the US. The original assertion that a precise system of describing smell may cause the doors to swing wide open.

You mean similar to the whole "Walkman" thing?
Did you ever notice that only Sony is allowed to call their walkman's a walkman?

>Sony still patented the rest of the console, and the claims for, say, the graphics synthesizer still apply to a modded PS2.

Yeah. Exactly. That's why we don't have pirate consoles. We have modchips. A modchip doesn't replace _anything_ on a PS2, it simply adds to it. In the case of an XBOX, it's a little more complicated, since it *does* replace the BIOS chip, but let's stick to the PS2.

I can honestly say there's not a single Ubicom SX28 chip on a PS2 (because I've opened them). And, I know for a fact there's not a single line of Sony code in a modchip. If you don't believe me, you can download the source from team ICE yourself (I'll give you a link if you'd like).

>Did I say it was an oral contract? What's that written receipt that the store gave you?

You mean the one that says "All Sales Final" and doesn't mention anything about how I use the device at all?

Sure, I totally agreed to those terms. Heck, I'll even admit it: I ASKED FOR THEM!

>Did you see the high-speed Internet access demonstration table?

You have better best buys than us. I wish we had that at the Best Buy here. Oh well. It's new. Perhaps in the future...

As for the USC, glad you looked it up for me.

(c) TERRIBLY misquoted.

(b) Yay, cohersion law. Nothing new or interesting here.

(a) Uhhh, you realise that if read at face value this makes a regular person using a PS2 without a modchip liable, too, right? I *highly* doubt the simplified text there means what it says. *highly* doubt it.

But, hey, I'm not a lawyer. Let's see what a real one says, shall we?

In order to be held as a direct infringer of a United States patent under 35 USC 271(a), it is necessary during the life of the patent to have made, used, offered to sell [182] or sold what is claimed in the patent within the United States or to have imported the patented invention into the United States.

*what is claimed in the patent*. IE: You must either:

- Make a PS2 from scratch using the patent documents as your guide (fat chance)
- Use the patent document to help you make the modchip (wasn't done, since the patent documents weren't even CLOSE to detailed enough)
- Tried to sell the patent to someone
- Imported a PS2 to the US

They are *not* talking about the end product in any way, shape, or form. It's all about the patent itself. I suppose if I were to send a PS2 to the US, I'd be breaking the law. That's silly, but not a problem.

Here's case law on the matter.

ACRA assumed the court would conclude Lexmark
customers have that right due to what is called the "doctrine of
exhaustion." Roughly the patent law equivalent of the first sale
doctrine in copyright law, the doctrine of exhaustion says the patent
holder's rights cease - are "exhausted" -- once the product is actually
sold. Buyers have an implied license to use the patented product as they
see fit, including reselling it or fixing it.

Doctine of exhaustion:

Doctrine that holds that, once a copy of a copyrighted work is in circulation, the author has no further right to control its distribution.

Here's a document from a department of law, albeit from another country, upholding that the doctrine of exhaustion applies to patented items.

The doctrine of exhaustion of rights applies to patents. Thus, the specific object of a patent is the exclusive right to utilise an invention with a view to the manufacture and first putting into circulation of i

"Do You Have A License For Those Facts?" (my debunking and I'm a certified IP wonk).

And how, pray tell, does one get "certified" as an "IP wonk"? That article was not wrong, and in fact it was relatively on the money.

While IANAL, I have taken a class in copyright law at Duke Law School and have followed CS IP issues for about eight years now.

You're completely overlooking a few provisions of the bill. Mainly Sections 5(A) and 5(C)

(A) IN GENERAL- Subject to subparagraph (B), the term `database' means a collection of a large number of discrete items of information produced for the purpose of bringing such discrete items of information together in one place or through one source so that persons may access them.

[...]

(C) DISCRETE SECTIONS- The fact that a database is a subset of a database shall not preclude such subset from treatment as a database under this Act.

For an example of how rules this like this have already gone awry, read about this case over in the UK. In short, a horseracing agency licensed its database of races, start times, horses involved, etc, for use in casino-type betting agencies. William Hill, Ltd, the gambling company, also placed race times, horses, and odds on its website. The EU court ruled that placing even this amount of information on the web was an "unlicensed" use of a subsection of the database.

So, Mr. "IP Wonk", please explain why that won't happen here, given the two clauses above. There are a lot of horse races -- one might even say a "large" number of races -- and the "database" of race times and horses involved is a subset of the larger database of all horse-racing data.

"Your Honor, we conceed that the defendants might have looked /somewhere/ else to get race times, but they had access to race times from us through our database license, which did not allow them to post those facts^W^Wthat database on their website. They /stole/ our property."

And given this country's tendency to "litigate first, and let the court sort it out", plus the courts' willingness to bend over backwards to punish those "pirates", how long before another SCO shows up claiming that the database of error names, numbers, and description strings is theirs? Even Nimmer and Jane Ginsburg, both staunch pro-IP, pro-DMCA lawyers have stated that a database protection bill is unnecessary [pdf].

Of course, I might be wrong. I don't have my "IP wonk" degree yet.

-jdm

I think that they could get them for inducement to infringe.

I remember it being more difficult to enforce inducement because direct infringement (no doctrine of equivalents) must be proved:

("Liability for either active inducement of infringement or for contributoryinfringement is dependent upon the existence of direct infringement."); C.R. Bard, Inc. v. AdvancedCardiovascular Sys., Inc., 911 F.2d 670, 673 (Fed.Cir.1990) ("Of course, a finding of induced or contributoryinfringement must be predicated on a direct infringement...."); Moleculon Research Corp. v. CBS, Inc., 872F.2d 407, 410 (Fed.Cir.1989) ("In the absence of direct infringement, [defendant] cannot be held liable forinducing infringement under section 271(b)."); Met-Coil Sys. Corp. v. Korners Unlimited, Inc., 803 F.2d 684,687 (Fed.Cir.1986) ("Absent direct infringement of the patent claims, there can be neither contributoryinfringement ... nor inducement of infringement...." (citations omitted)); Blackman v. Hadron, Inc., 450 F.2d781, 782 (2d Cir.1971) ("[A]bsent direct infringement, no action for contributory infringement can bemaintained.").For a good discussion of both inducement and contributory infringement see Curtis Manufacturing Co., Inc.v. Plasti-Clip Corp., 888 F.Supp. 1212

The application of the provision of the United States Patent law that subject to certain limitations a patent should be awarded, to the first to invent rather than the first to file a patent application is most frequently encountered in interferences. The case of Mycogen Plant Science Inc. v. Monsanto Co. provides a reminder that the rule is of broader application. 35 USC 102(g), the provision enacting the first to invent rule, provides that a patent cannot be validly granted if,

Before the applicant's invention thereof the invention was made in this country by another who has not abandoned, suppressed or concealed it. Mycogen sued Monsanto for patent infringement. Monsanto defended on the ground that the patents in question were invalid because Monsanto employees had made the inventions in question before Mcogen's. The patents related to synthetic genes that were to be used in plants. It was conceded that Monsanto had produced the genes in question prior to Mycogen. However, Mycogen argued that Monsanto had "no appreciation of the claimed methods ... with improved expression, or contemporaneous understanding that they had synthesized their gene using any of the processes claimed in the patents". They therefore argued that Monsanto's prior activities were "accidental" and so could not be accepted as being a prior reduction to practice of the invention by Monsanto. While accepting the theory of Mycogen's case, the Court found that the evidence in the present case showed that Monsanto's activities were not accidental and so the defense succeeded.

It should be noted that a defense to an infringement action on the ground of prior invention by another is still only possible in cases where the prior invention was in the United States. The 1999 change in the law permitting reliance on inventions made abroad is confined to situations where both parties have U.S. patents or patent applications and do not apply to a simple plea of invalidity in an infringement case where the defendant has no patent or application itself.

I'm pretty sure that Nike would be considered a "famous" mark, meaning that it would fall under the fairly new Trademark Dilution statute.

You may be right (IANAL either though I will link to some seemingly authorative sources), but I was under the impression that as the creator of a work (or holder of the copyright, should the author have assigned it to you), you gain certain exclusive rights, meaning others are excluded from having those rights unless you grant them permission.

If you follow that link, "how it is used" is not listed among the 5 exclusive rights (3 if the work is art). There are other similar lists publiched, such as this similar one with 6 instead of 5 exclusive rights, though they are very similar.

Now, while having the exclusive right to create and distribute copies might seem to imply that you could, in theory, control who can receive a copy, in practice there is the First Sale Doctrine which allows anyone in possession of a copy to sell or give that copy to anyone else.

Now, some might argue that political climate of the late 90's (that brought the DMCA with zero resistance) and the recent lobbying of the RIAA and MPAA (which is meeting considerable resistance) has allows copyright owners to introduce technological restrictions that effectively restrict how their works are used and who can possess copies. But that sort of analysis is far beyond me.

Trademark law does not have a "fair use" doctrine.

That's not true. It does. Here's a quick link from google for example. Or another.

If you think about it, a trademark would have no value whatsoever if Joe Gucci can sell watches down at the corner and call them "Gucci", and the Gucci company couldn't do anything to stop it.

If they are Gucci watches, the Gucci Company indeed can't do anything to stop it. Likewise, SCO can keep calling Linux "Linux". It feels bizarre to be defending SCO here, but c'mon.

Example 1, Quebec.

Example 2, France

Everyone in France/Quebec can speak whatever word they want, but if they put it into print they might have the language police after them.

Spam means, when talking about email, unsolicited bulk email. Enlarge your penis, debt-free now, viagra online - you know the drill.

I believe the Spam Co. will loose this case, due to the fact that "spam" now has become a generic term in the e-mail world, like Sony did over the "walkman" trademark.

Here's a good story, in case you want to read more about earlier trademark disputes.

If they weren't the ones to insert it into the kernel, then the GPL on their code is void.

Well, YES. That is the whole point. They are distributing unlicenced code, a large chunk of which is derived from GPL code written by Linus and friends.

The fact that they distribute it is irrellevant.

Alas, you lose during the bonus round. Read your previous statement until you understand. Their licence is VOID. So what gives them the right to distribute something they don't have a license to? Or to make the additional copies in the first place? How would Jack Valenti respond if you operated a business to sell copies of the Matrix that were unlicensed? That is how Linus should respond to SCO. Jack wouldn't care if you could show that what you were distributing was actually some third party mix of the Matrix plus some parts that were copyrighted by you. Why should Linus?

Here, I'll help you:

Q: True or False -- Under standard copyright laws of most nations, such as those in the US, in order to distribute a derivitive work, you must have a valid licence from all of the copyright owners for all of the works from which the work in question is derived.

A: True. For more information, including citations to caselaw start here in section c.

Please answer this: by what authority does SCO distribute code which includes among it code authored by Linux Torvalds? If you get confused, go back an read your first sentence.

I'm "anti-bono"

Have you written your legislature in support of legislation like the Eldred Act? The Eldred Act seeks to apply only the bare Berne minimum copyright term (life + 50) to works whose copyright has not been registered, as a starting point for future reductions.

In some cases the testing period eats up almost the entire patent period. Rather than a global extention on patent durations they should "stop the clock" during any government mandated testing procedures.

They already do in the USA. A patent holder can apply for a term extension of up to five years to account for time spent waiting for regulatory approval.

This is true, but the US would itself be breaching TRIPs and would thus be subject to action through the WTO's dispute resolution process, which has, amongst other things, the power to authorise countries to impose sanctions against "independently minded countries".

The dispute resolution process has already been used to prevent the US from creating exceptions to its copyright laws.

... but what EXACT copyright is bein violated and how?

The television broadcast, shows and commercials are certainly copyrighted. Since the early 90s, all works of authorship are automatically copyrighted unless the author declares the work to be in the public domain. The aggreate of the show with commercials inserted is also probably a subject of copyright. That is exactly what is copyright might be violated (wether it is a voilation of not is up to the courts, not mere mortals like you and me, regardless of how strong our opinions may be, expressed here on slashdot or elsewhere).

According to copyright law, the copyright holder has several exclusive rights. The ones that might be violated here are:

1. Right to prepare derivative works
2. Right to distribute copies

#1, the exclusive right to prepare derivative works is quite a gray area. The Replay4000 apparantly has the ability to automatically detect commercials and prevent them from being recorded. Personally, I think that's a great feature (which I would certain use, except that I don't watch TV).

In the case of a VCR, the broadcast is recorded to the videotape without any modification. Commercial skipping happens during playback, but the copy (which was fair use) is an exact copy of the original. But if the recorder analyzes the picture in real time and automatically alters it, maybe that's enough to be considered a "derivative work".

#2, the exclusive right to distribute copies of the work is also a point of contention. The Replay4000 has a file sharing feature, where copies of the broadcast (presumably originals OR modified copies that might be derivitive works) can be transfered to 15 other Replay4000 owners via broadband internet connections. This file sharing certainly is distributing copies, so the only hope for it to be legal is if it's a fair use

There are four factors for fair-use (decided on a case by case basis by courts):

1. purpose and character of use (educational, non-profit, commercial)
2. nature of the copyrighted material (artisitic vs informational)
3. amount of the work copied
4. effect on value and potential market for the author

In terms of the fair use criteria, #1 and #4 are a mixed blessing for Replay4000 users. Sharing is almost always non-profit, but usually for entertainment rather than eductional purposes (yeah, some shows are eductional, but to really be for educational purposes you'd be talking about copies for students at a school). #4 is also middle ground... a small number of copies to friends has a small impact on the market (though the studios will argue that the derivitive works worsens the market for royalties) and the broadcasters will claim the market for "premium" channels is dimished if users distribute certain key shows to their friends who don't susscribe to those channels.

#2 and #3 really work against the Replay4000. The material is "artisitic" (neglecting the overall lack of substance and quality of TV... at least when my girlfriend made me sit through a "survivor" episode a couple months ago). The copies are the whole thing (#3).

One final thing to keep in mind, which seems to be easy to forget while reading all these "ought to be" slashdot comments, is that fair use is decided on a case-by-case basis by courts. The famous Sony vs Universal case (VCR is fair-use) was decided by a 5/4 vote. Very close, and the VCR of the mid 80's required the user to press FF to "skip" a commercial, instead of making a modified recoding (derivative work) automatically. That 80's VCR allowed "swapping", but by physically transporting tapes instead of just pressing a couple buttons (think "subjective opinion of a judge on the impact for the market for or upon the value of the copyrighted work).

I personally hope the Replay4000 and similar devices are ruled to a legal fair use. But saying "it's exactly like a VCR" is a stretch... and the VCR case from the 80's was a 5/4 split of the high court!

I'm not a lawyer, so don't use this as legal advice. Instead, you (the author of this slashdot article) may want to show it to your company's lawyer and suggest that he track this down.

According to this link, there is a case called "Whelan" that established that duplicating the detailed structure of a program was copying of expression rather than ideas, and therefore copyright infringement.

Also, I remember reading a very good article about ten years ago by law professor Pamela Samuelson, I think in Communications of the ACM or some other ACM publication, that talked about this decision and mentioned "detailed structure and flow", which would make the case for infringement even stronger.

Finally, I recall reading somewhere, perhaps in that same article, that there is some common law rule that the standard of similarity by which copyright infringement should be determined is supposed to correspond to how much access the alleged infringer had to the original work. In other words, if the alleged infringer had easy access to the original work (e.g., had carefully read the original GPL'ed source), then the standard for proving infringement is supposed to be easier.

Again, I'm just a layman. Don't use this as real legal advice.

Correct me if I'm wrong, but by improving on a patent to get a new patent you don't just get to distribute the diff, you get the rights to the whole.

<correction_because_you're_wrong>
From Title 35, section 271, paragraph a of the US Code (emphasis added):

Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.

Just how many companies are there called Acme? Several...and they're all in different types of businesses. I don't know how the laws work in Germany, but in the U.S., trademark dilution applies to disputes within the same industry.

I don't know Germany either, but:

The Federal Trademark Dilution Act of 1995, which protects famous marks from uses that dilute their distinctiveness, even in the absence of any likelihood of confusion or competition, became effective on January 16, 1996. - LADAS & PARRY

If you recall the whole Diablo game dispute, Blizzard had to register the trademark for not only the game but for the movie as well.

You're talking about a different trademark law. Perhaps the mark used by Blizzard was not "famous", or perhaps the lawyers just screwed them over by giving them bad advice to make more money. Under the FTDA of 1995, you don't even have to register your trademark at all.

Actually, as fare as I know, Apple Corp (that was founded by the Beatles in 1968) sued Apple Computer.

I'm almost positive that Apple Records was fully owned by Apple Corps, Ltd. See here for more information. But yeah, it would be the Corp which did the actual suing.

The case ended in a settlement where Apple Computer payed something between $25 million - $30 million and had to agree to stay out of the music business.

According to a number of sites I've read, including this one, the original settlement, for "an undisclosed amount" (probably very small), had the stipulation that Apple Computer could not be used for music purposes. In 1989 Apple Corps sued Apple Computer for breaching that contract. That was settled for somewhere in the $30 million range. If the Federal Trademark Dilution Act had been in effect in 1981 (sorry, not 1984), Apple Computer would have been in a much more precarious legal situation, and would likely not have been able to reach a settlement (I doubt they had $30 million at that time).

AFAIK, Apple Computer is no longer barred from going into the music industry. They certainly breached their original settlement by this point, it's quite easy to use the Macintosh as a low budget recording studio, probably with about as much quality as the Beatles had back in 1981.

Used to be true, but it's not true any more. Like I said, the Federal Trademark Dilution Act, which was passed in 1996, changed all that.

Nope, I don't think that they should have a right to sue in that case, because it's the same thing. AIM is a strong trademark, given the installed base. Does that mean AOL should have the right to sue the Aim Recording Company

No. AIM isn't that strong. Such strengths are generally reserved for trademarks such as AMERICA ONLINE®, WARNER BROS.®, NINTENDO®, POKEMON®, MICROSOFT®, DISNEY®, STAR WARS®, and other marks along those lines where use of a trademark by a company in a related field would be considered endorsement of the new business by the existing TM owner. For example, Israel's Supreme Court overturned a registration for "BAKARDI" brand jeans because it was too similar to BACARDI® brand liquor. The Republic of China, based on the island Taiwan, also has a law about famous trademarks. And here's some information about the Federal Trademark Dilution Act of 1995, which sets guidelines for protection of famous trademarks in the U.S.

But remember Tetrisgate? The Tetris Company was found not to have a copyright or patent on the game of falling tetraminoes but merely a trademark on TETRIS®; the cloners simply changed the names of their games, all of which had been clean-room from the start. Nevertheless, the findings didn't stop a quality control consulting firm based out of Edmonton, Alberta, from calling itself Tetris Management Group. Guess the TETRIS trademark isn't that strong in Canada.

Government-granted monopolies[?] are easiest to deal with when problems are solved before they escalate; that's why trademark law (unlike US copyright and patent law) requires TM owners to react in a speedy manner, that is, either license or sue would-be infringers.

Oh, and by the way, according to Lego^H^H^H^H Elgo Irrigation's web site, there was a recent name change.

I don't think the drafters of trademark law ever thought someone would give something away over a long enough period of time to be a problem. Good to see that the outdatedness of these laws cuts both ways.

[in addition to SSH, I] also have a registration pending on the Secure Shell mark. ... I want to be able to continue using the SSH and Secure Shell names as identifying my ... products and technologies,

Well then, Mr. Secure Shell, what should we call it? Trademark law essentially prohibits trademarking nouns (and, in fact, you can lose the trademark if it's commonly used as a noun). Thus you have Tylenol-brand pain reliever, Rollerblade-brand inline skates, and so on. If there's no common noun to describe your product other than its trade name, then you don't get to keep the trademark. A quick search will turn up lots of tidbits like this:

it is imperative that trademarks be used in advertising copy as adjectives, never as nouns or verbs

It seems to me this guy wants to erase, or at least obscure, the excellent free replacement that's made his product irrelevant.

Going forward, and in the interests of bringing closure to this pressing issue, I'd suggest Mr. Ylonen piss up a Rope(TM)-brand rope.

cheers,
mike

Oops I forgot to add the ACUTAL quote from the Constitution (Article 1 Section 8 Paragraph 8)

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

FYI the actual Patent Act is MUCH longer and was enacted in 1790.

Also,
here is a good short history of Patent Law in the US.

The new act defines the term "dilution" as "the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of

Courts have previously found that dilution can occur as a result of either "blurring" or "tarnishment". "Blurring" typically refers to the "whittling away" of distinctiveness caused by the unauthorized use of a mark on dissimilar products; while "tarnishment" involves an unauthorized use of a mark which links it to products that are of poor quality or which is portrayed in an unwholesome or unsavory context that is likely to reflect adversely upon the owner's product. The legislative history suggests that both of these concepts are encompassed within the new law. In addition, the legislative history cites, as examples of the uses which would fall within the new law, the mark DUPONT for shoes, BUICK for aspirin and KODAK for pianos.

If anybody is interested there's a dec ent write up on IP law</a>. Venice, 1474 - inventors were provided exclusive rights to their inventions for a limited time.

Sorry to interject facts into Goalias' 'sarcasm'.

Ladas & Parry

World Intellectual Property Organization

SUMMARY OF INTELLECTUAL PROPERTY & LICENSING LAWS

Copyright Law FAQ

/peter

The European test is still close to this: a computer program "as such" is considered just to be a method for performing a "mental act", and is therefore specifically excluded from patentability. However, under guidelines the EPO brought in in 1985, computer programs are patentable if they have a "technical effect".

For more information, see:
http://www.ladas.com/GUIDE S/COMPUTER/Computer.EPOJP.html
and
http://www.jurisdiction.com/epc.htm
which includes the text of the section of the law in question.

This had led to some truly classic decisions, a real must for connoisseurs of the mind-numbingly pedantic and the bizarre:

• A claim for an image processing system was disallowed because the wording, "A method of digitally filtering data including scanning a data array with masks...", specified no physical entity that the data represented, so was held to be a purely mental act; an amended version, "A method of digitally processing images in the form of a 2D array..." would have been okay, except they then discovered it wasn't novel.

• Word processing, according to the Board, is just a series of mental acts. This lacks technical significance and is therefore not patentable. Since there is no technical effect, this also rules out any methods for spell-checking, or for contextually identifying incorrect homophones ('there' instead of 'their')

• But an IBM invention, to translate printer control codes into different control codes for a different system, was patentable, because it related to the control of machinery (a clear technical effect).

I also found a one-day seminar with most of the main players, held a couple of years ago:
http://www.patent.gov.uk/softpat/en /frmain.html
but the couple of speakers I read seemed mostly to be congratulating themselves on how sensible they were.

Strange world, patent law...

On the other hand, I think the European Union would have something to say about this. I found this link:

Which basically says that trademarks acquired in one EU state can't be diluted in other EU mamber states

I seem to remember that Linux is a [tm] in Austria, and guess that it might be one in Finland, which would mean bad news for Mr. Brodt.

More generally, a trademark isn't something like a patent or a copyright which you can just have on the shelf. Trademark law exists to protect companies against unscrupulous imitators cashing in on their goodwill. Which means that you typically have to be actually trading to keep your trademark. Unless the German guys start producing a proprietary product fairly similar to Linux (good luck guys), they won't get the [tm].

On the other hand, German [tm] law is widely known to suck, so there may be more to it than this.

jsm