Eminent Domain Applied to IP Due To State Secrets

NormalVisual writes "Wired recently ran a story about a group of inventors that found themselves unable to sue Lucent Technologies for infringement of a patent they held on a novel design for a pipe/cable connector. They had been working with Lucent on an underwater application for this connector, but unfortunately for the inventors, Lucent's application was being developed for an as-yet-unnamed branch of the U.S. government. The government is now claiming a state-secret privilege, and is refusing to let the inventors sue Lucent for patent infringement, citing national security concerns. In the meantime, Lucent continues to directly profit from their invention without paying any royalties or other compensation. The patent in question can be found online. It's doubly a shame because, unlike so many other patents that we've seen here, this one is actually creative and non-obvious." We've touched on this topic before.

Comments

Sweeeeet!

[denissmith]

So we want Chinese peasants to pay to watch "Steamboat Willie", but real, live inventors are SOL. God, what a country!

It's not eminent domain without fair compensation

[Anonymous Coward]

Sounds more like theft than eminent domain. With eminent domain, the government takes your stuff but has to give you market value for it. Here, they're just taking patents away from the inventor. OK, maybe not taking away, but denying the holders of that patent the right to use it in this specific case, which is just as good as taking it away.

Ridiculous.

[reality-bytes]

If its a foregone conclusion that the 'Government Agency' are using this tech as provided by Lucent then I don't see how 'state secret' can be a problem (or excuse).

If the 'Government Agency' is allowed this holier-than-thou stance then the plaintiff should just be able to ask: Are you using our tech as provided by Lucent? The agency can then just say yay or nay.

I'm pretty sure the value of the defence contract for Lucent isn't any kind of secret so the courts should award a *fair* share of that ammount to the plaintiff if it is found that Lucent infringed their IP.

state sanctioned theft..

[MrLint]

So can someone tell me which criteria of fascism we haven't had happen yet.

Re:state sanctioned theft..

[Auraiken]

Dunno... place a checkmark beside all that apply.

Re:state sanctioned theft..

[The Angry Mick]

From the Wikipedia:

The term fascism has come to mean any system of government resembling Mussolini's, that in various combinations:

• exalts the nation and party above the individual, with the state apparatus being supreme.
• stresses loyalty to a single leader, and submission to a single culture.
• engages in economic totalitarianism through the creation of a Corporatist State, where the divergent economic and social interests of different races and classes are combined with the interests of the State.

Um...pretty much all of them?

Re:state sanctioned theft..

[Anonymous Coward]

1. Powerful and continuing expressions of nationalism. From the prominent displays of flags and bunting to the ubiquitous lapel pins, the fervor to show patriotic nationalism, both on the part of the regime itself and of citizens caught up in its frenzy, was always obvious. Catchy slogans, pride in the military, and demands for unity were common themes in expressing this nationalism. It was usually coupled with a suspicion of things foreign that often bordered on xenophobia.

2. Disdain for the importance of human rights. The regimes themselves viewed human rights as of little value and a hindrance to realizing the objectives of the ruling elite. Through clever use of propaganda, the population was brought to accept these human rights abuses by marginalizing, even demonizing, those being targeted. When abuse was egregious, the tactic was to use secrecy, denial, and disinformation.

3. Identification of enemies/scapegoats as a unifying cause. The most significant common thread among these regimes was the use of scapegoating as a means to divert the people's attention from other problems, to shift blame forfailures, and to channel frustration in controlled directions. The methods of choice--relentless propaganda and disinformation--were usually effective. Often the regimes would incite "spontaneous" acts against the target scapegoats, usually communists, socialists, liberals, Jews, ethnic and racial minorities, traditional national enemies, members of other religions, secularists, homosexuals, and"terrorists." Active opponents of these regimes were inevitably labeled as terrorists and dealt with accordingly.

4. The supremacy of the military/avid militarism. Ruling elites always identified closely with the military and the industrial infrastructure that supported it. A disproportionate share of national resources was allocated to the military, even when domestic needs were acute. The military was seen as an expression of nationalism, and was used whenever possible to assert national goals, intimidate other nations, and increase the power and prestige of the ruling elite.

5. Rampant sexism. Beyond the simple fact that the political elite and the national culture were male-dominated, these regimes inevitably viewed women as second-class citizens. They were adamantly anti-abortion and also homophobic. These attitudes were usually codified in Draconian laws that enjoyed strong support by the orthodox religion of the country, thus lending the regime cover for its abuses.

6. A controlled mass media. Under some of the regimes, the mass media were under strict direct control and could be relied upon never to stray from the party line. Other regimes exercised more subtle power to ensure media orthodoxy. Methods included the control of licensing and access to resources, economic pressure, appeals to patriotism, and implied threats. The leaders of the mass media were often politically compatible with the power elite. The result was usually success in keeping the general public unaware of the regimes' excesses.

7. Obsession with national security. Inevitably, a national security apparatus was under direct control of the ruling elite. It was usually an instrument of oppression, operating in secret and beyond any constraints. Its actions were justified under the rubric of protecting "national security," and questioning its activities was portrayed as unpatriotic or even treasonous.

8. Religion and ruling elite tied together. Unlike communist regimes, the fascist and protofascist regimes were never proclaimed as godless by their opponents. In fact, most of the regimes attached themselves to the predominant religion of the country and chose to portray themselves as militant defenders of that religion. The fact that the ruling elite's behavior was incompatible wi

Re:state sanctioned theft..

[Keybounce]

This really isn't trolling. It may be off topic, but it isn't trolling.

1. exalts the nation and party above the individual, with the state apparatus being supreme.

Nation above the individual: Patriot act, Bush's "You're either with us or with the enemy" speeches, etc.

Party above the individual: Republican's "No abortion" policy.

State supreme: Pushing judges that want to expand the interstate commerce clause to regulate EVERYTHING, including california only medical marijuana.

2. stresses loyalty to a single leader, and submission to a single culture.

More of "You're with us or against us". The whole "We have 55%, so we'll push our agenda into law for everyone".

(Remember: Democracy is two wolves and a sheep voting what to have for lunch. Freedom is a well armed sheep contesting that vote.)

3. engages in economic totalitarianism through the creation of a Corporatist State, where the divergent economic and social interests of different races and classes are combined with the interests of the State.

Hmm... well, this will probably get me modded down for something, but:

a. Corporations get large tax breaks, incentives, etc., and
b. More and more corporations get control over individuals, by a society that requires you to do business with them, and those corporations requiring that you sign contracts giving up rights. Said "You give up your rights in order to do business with us" upheld by courts.

See: Any music/software "shrinkwrap" license. Any credit card company. Any software system/Windows OS/modern computer (excluding Linux). Probably more. See: General need for insurance, and the general impossibility of self insurance. See: More and more people being able to use your credit score to decide any/every thing of their business with you.

"Combined with the interest of the state". Well, we're looking at high unemployment, lots of foreigners being imported to work, more and more people getting into financial binds, new bankrupcy laws that basically make your finances all government business for 3-5 years, etc.

I won't go as far as to say "Everyone is a criminal, we can arrest anyone at any time", but some states are making criminals work for the state, right?

Bottom Line: Can't sue Feds and their contractors

[metoc]

Essentially this means that the Federal Government and the contractor working for them can't be sued. All they have to do is invoke the states secret privilege and the suit disappears. Anything can become a secret if the government decides that it is important for the safety and security of the country. Since terrorists and hurricanes can strike anywhere, and at anything or anyone, it is all up for grabs.

Misleading topic

[davidwr]

1) the company didn't get any cash, like they would in an eminent domain case

2) the company still has patent rights for other uses. Lucent can't license the patent to others for any non-secret projects.

It's more like Lucent is engaging in software or music piracy and thanks to "Kings-X" getting away with it.

Now, if the patent holders refused to license the patent at all, or put onerous restrictions on it, and the government siezed the patent in toto so industry could license it, and paid off the patent owner, that would be eminent domain.

Funny how things work.

[MindStalker]

Funny how they rejected this court case stating that going forward would provide more information on this patent to the public, thus causing a "national security" concern due to its secret use. Of course doing so causes it to be national news.. Yep good way to keep it secret.

On Government

[cnerd2025]

"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Hmmmm. IFF the Declaration held the power of law...

In all fairness ...

[argoff]

Petents don't help innovation, and they especially do not help the little guy. They are also not pro-business (contrary to popular belief)

I think it is in human nature, then when a system doesn't work, that we try to force it and tweek it to work even if it's premise isn't sound. If people would stop thinking about the "theory" of patents, and stop thinking about the "business" of patnets, and start thinking about the nature of patents - that is to coerce, threaten, and nickel and dime others who use shared ideas by imposing on them the full force of government. I think the debate about patnet problems would take on a whole new meaning.

Re:I'm SO confused!

[99BottlesOfBeerInMyF]

Are patents evil, or are they good?

...because you know everything has to be one or the other. It's not like some things could be beneficial when applied in certain ways (like traditional patents on non-obvious inventions) and yet be detrimental when used in other ways (patenting business ideas, existing inventions, existing common practices or ideas with "on the internet" appended, software patents, etc.). Can't someone please come up with simple absolute rules for everything so we don't have to think?

It's hard to let Slashdot tell me what to think when they post stories on _both_ sides of an argument!

Yeah we all hate it when a discussion site posts both good and bad things done by a person, organization, or process. That might foster, well discussion.

Man I hope you're trying to be funny, because some days I really can't tell on Slashdot anymore.

Funny ..

[macaulay805]

Funny the US wants a global IP plan, but yet they screw the IP holders in their own domain. Makes one wonder the fun times of the future in a global sense.

Let me explain this...

[benjamindees]

No power gives the government the ability to take property from you and give it to someone else without compensation. Yet, in this case, that is the result. Why? It's a loophole, and Lucent has exploited it marvelously.

Consider: The executive priviledge in question (and the court case cited) gives the government the ability to restrict the release of information deemed important to national security. That's all.

How did Lucent exploit this to their advantage? They promised to pay for the technology, signed contracts and everything. Then they simply didn't pay. Now, it's up to the screwed party in this case, the plaintiff, to sue for recompense. The plaintiff brings suit. And, in the course of the trial, the plaintiff requests discovery from Lucent to verify it's claims and help make it's case.

Uh-oh. Here's where Big Brother steps in. The government says "you can't talk about that" to the courts, and to both parties. Now what is the plaintiff supposed to do? What evidence can he use? There's probably a contract that details specific technology that they now can't disclose. If they blot out the parts that are sensitive, Lucent can use that to claim reasonable doubt. They can't investigate Lucent to find out that they actually took and used said technology, because Lucent can't reveal that information to the court. The plaintiff is completely screwed, against all logic and reason.

I especially love the quote from the Lucent representative: "You can't try this case in your publication". They understand the issues well enough to know how to screw people; and they did it intentionally.

This is becoming more and more common. I have high voltage power lines, 100 ft tall, in my back yard. Yet, I never gave permission to the power company to put them there. I rejected their low offer when they called to try to purchase an easement, and they said "fine". They never filed condemnation proceedings to take the land. They simply built the power lines illegally, over my objections. They can do this because, in Oklahoma, the constitution provides that the maximum damages for them doing so are the same as the cost of the easement. The most it will cost them is what a judge decides the easement is worth. But, now, it's up to me to file suit to get those damages, which means I'll probably just end up with their low offer minus attorney fees.

And they do this as a matter of course, to everyone. It's fascism by definition.

Emminent domain would be a FAIRER solution

[abb3w]

Goverment declares that the patent has state secrecy implications. Government exercises emminent domain over the patent, and pays them a "fair" (well, laughable) sum. Patent spends the rest of its natural(?) life on a shelf, military applications aside. Lucent and the Government are happy, and the inventor at least is resigned to a clear foundation for the decision in the letter of the constitution (5th amendment).

Of course, doing this would make major patent holders a little more nervous, but it's still a more equitable resultion under the rule of law than "no, you can't sue him, even though you're getting screwed." In the meanwhile, all these guys can do under the current mess is fall back on "peacable petition for redress of grievances"... which is not likely to be effective in this political climate.

"Takings" require compensation

[billstewart]

The Constitution forbids taking private property for public use without just compensation. If the Feds want to take the "intellectual property" for "National Security" or whatever reasons, they are required to compensate them - assuming the patent owner files a lawsuit in the right form asking the right questions. Doesn't sound like they've done that yet.

It's not eminent domain at all

[jfengel]

They're not claiming eminent domain, and the original article doesn't mention it; that's from the summary written by the submitter.

They're claiming instead something called the state secrets privilege, which has nothing to do with property (intellectual or otherwise) but rather with quashing the lawsuit. Eminent domain has to do with real, not intellectual, property, since it is a "taking", and as is incessantly pointed out on Slashdot you can't "take" intellectual property.

What that big state secret is, of course, I can't say, since most of the filings in the case are (duh) secret.

In other words, the government isn't claiming that it has any rights to the patent; it's just claiming that the guy isn't allowed to sue, because that would violate some big state secret.

So they get to use the patent, with no legal right to it, but what kind of right is it that you can't enforce under the law? No right at all. Sound like a totalitarian regime to you? Gold star!

Re:It's not eminent domain without fair compensati

[john82]

The difference here is that Lucent is PROFITING from IP they stole from the inventors. There's nothing they can do while Lucent will continue to commit theft in (likely) an ongoing sole-source contract to provide connectors.

Perhaps the inventors should talk to someone from the Global Intellectual Property Rights Academy?

Crap submission

[hey!]

Ye gads, aren't people confused enough about intellectual property? Put down your ideological axe long enough to get it right.

This has absolutely nothing to do with eminent domain. It would be better for the inventor if it was eminent domain, becuase under that doctrine he'd have to be paid a fair market value for his property. Under this, a more favored vendor is allowed to steal is property, and the government is taking away his right to defend his property in the name of national security. It has nothign to do with the government taking the property itself.

This is the state secrecy doctrine. It says to right in the friggen linked article, with a highly informative blurb in the third paraqraph:

In a little-noticed opinion this month, a federal appeals court ruled against the Crater Coupler patent holders and upheld a sweeping interpretation of the controversial "state secrets privilege" -- an executive power handed down from the English throne under common law that lets the government effectively kill civil lawsuits deemed a threat to national security, even if the state is not a party to the suit.

I refer you to http://en.wikipedia.org/wiki/Eminent_Domain for more information on Emininent Domain and http://en.wikipedia.org/wiki/State_Secrets_Privile ge for the states secret privilege.

The linked article would have been more informative if they had mentioned "US vs. Reynolds", the 1953 case in which the US Supreme Court which actually established the privilege in the US . In that case, the widows of three crew members of a B-29 sued the US government for information relating to a crash that killed their husbands. The US government claimed that since they were working on a classified project, divulging the accident report would undermine national security.

As it turned out, they lied. There was nothing sensitive at all in the accident report. There was embarassing information about incompetence and negligence in the maintenance of the aircraft. Which goes to show what Ben Franklin said, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." There is nothing more dangerous to liberty than allowing the government to act without accountability, purely on its say so.

Re:I'm SO confused!

[91degrees]

Evil when they're owned by big companies. Good when they're owned by little people and infringed by big companies:)

Clearing up the issues

[Frank T. Lofaro Jr.]

The patent infringment part of the suit was dropped, not due to state secrets, but because there is a Federal law that states use by the government is not an actionable infringement.

They have most of their evidence eexcluded for the remainder of their case (trade secret and breach of contract) because it is claimed it endangers national security. It may be false, in which case it is an injustice, or true, in which case disclosure would harm national security - many people can be dead - if we can't intercept when and where Al Qaeda plans to nuke us (look up "Americam Hiroshima"), it could be millions. Since this possibly deals indirectly with tapping undersea fiber cables, that isn't far fetched. I live in Las Vegas, one of the cities Al Qaeda has its eyes on - I believe in freedom - but we need to protect Americans. Again, the gov't can be lying, or telling the truth, I, and you all, don't know which.

A public trial, even with the evidence already made public, could help the enemy piece things together in a coherent whole. Much of intelligence isn't just the pieces of the puzzle, but how they fit. A trial may provide that and make the puzzle "come together" and be much more useful to the enemy.

I'm afraid that even this Slashdot story might help those we don't want helped.

As for the inventors, they have not had the trade secret and breach of contract dismissed. Judges might allow them to recover if they have other evidence and they might be willing to give them leeway because they had evidence they can't use.

As far as I can tell, they are free to license the patent to others and sue them if they infringe. The application must have other uses and it appears they still have full rights in that area. Eminent domain is wrong, they still have their patent - they just have a compulsory license (which most of us like when it comes to music, etc and the public) to the government and their trade secret and breach of contract suits are impeded. Not good, and Lucent should honor contracts (if they are or they aren't I don't know) in any event.

If you wrote software, and one client got to use it without paying you and you had no recourse it would be bad, but if you have full rights in regards to other clients you'd likely be OK.

Why did the inventors only deal with Lucent?

The patented invention wasn't made secret, the patent is still available on the gov't own site!

/. Rules

[servognome]

Can't someone please come up with simple absolute rules for everything so we don't have to think?

1 - Microsoft, SCO, MPAA, RIAA, & all corporations unless noted in rule 2 = Bad
2 - Linux, Google, Apple, AMD = Good
3 - DRM, outsourcing = Bad
4 - Open source, P2P = Good
5 - Patents, Copyright = Bad, unless being used against a big corp
6 - Goverment = Bad unless they are installing WiFi in your town
7 - NASA = Good, unless they say they will not keep Hubble in space
8 - USA = Arrogant
9 - Religion = only post flames, any intelligent conversation for or against religion will be ignored
10 - In Soviet Russia, Does it run Linux, Beowulf Cluster, I for one welcome, etc = overused, but still must be modded +5 funny

We need jury nullification.

[Lord Kano]

In a situation like this where the courts are REFUSING to provide justice, people should be able to go out and get it themselves.

LK

We use the Fascists' symbol, too

[Savantissimo]

The Roman fasces (root of the word fascist) consists of an axe within a bundle of rods, bound by a red strap. As a symbol of state power, the rods were for beating prisoners, the axe for decapitating them.

This emblem on Mussolini's flag of office, the symbol of his Partito Nazionale Fascista, and the the present Guardia Civil (Franco's jackbooted thugs) can also be found on the the 1916-1945 US dimes, the Lincoln memorial chair; all over the US Capitol, including multiple copies on the Speaker's rostrum, the National Guard insignia, etc, etc,

Re:With drugs, we've already paid for the research

[falconwolf]

with the pharmaceutical industry getting a lot of their basic research performed in public institutions with government grants, and then getting to patent the drug, we're the one's getting screwed. Twice!!

Yeap! BMS, Bristol-Myers Squibb, using Taxol is an excellent example. The NCI, National Cancer Institute, part of the fed's National Health Institute spent $183 million doing the research into developing Taxol from the Pacific Yew tree. Yet they practically gave away to BMS, who makes more than a billion dollars a year on the sale of Taxol, the "rights" to use all of the data from the clinical trials. The US tax payer got ripped off!!! And cancer patients who need Taxol are getting ripped off as well.

Falcon