Appeals Court: You Can Infringe a Patent Even If You Didn't Do All the Steps

← Back to Stories (view on slashdot.org)

Appeals Court: You Can Infringe a Patent Even If You Didn't Do All the Steps

Posted by timothy on Saturday September 1, 2012 @07:10AM from the but-my-cousin-did-the-actual-assaultin'-yer-honor dept.

reebmmm writes "In a much anticipated patent law case, an en banc panel of the Federal Circuit overturned existing law and came out in favor a new rule for indirect infringement: you can still be liable for infringing even if no single person does all the infringement. This case consolidated two different cases involving internet patents. In McKesson v. Epic, a lower court found that Epic did not infringe a patent about a patient portal because one of the steps was performed by the patient accessing the portal. In Akamai v. Limelight, the lower court found that Limelight did not infringe because its customers, not the company itself, tagged content. This is likely headed for the Supreme Court."

88 of 126 comments (clear)

Min score:

Reason:

Sort:

Infringe all the patents! by Anonymous Coward · 2012-09-01 07:17 · Score: 5, Funny

Doesn't this mean that any software system with an API could be potentially infringing on every software patent ever filed?
1. Re:Infringe all the patents! by docmordin · 2012-09-01 07:26 · Score: 4, Interesting
  
  Although not entirely pertinent, a cursory reading of the the dissenting opinion by Circuit Judge Newman, a brief excerpt of which is given below, sheds some light on this:
  
  According to the court’s new ruling, it appears that the patentee cannot sue the direct infringers of the patent, when more than one entity participates in the infringement. The only remedial path is by way of “inducement.” We are not told how compensation is measured. The only thing that is clear, is that remedy is subject to new uncertainties. Since the direct infringers cannot be liable for infringement, they do not appear to be subject to the court’s jurisdiction. Perhaps the inducer can be enjoined—but will that affect the direct infringers? Since the inducer is liable when he breaches the “duty” not to induce, is the inducer subject to multiplication of damages? This return to the “duty to exercise due care to determine whether or not he is infringing” of Underwater Devices Inc. v. Morrison–Knudsen Co., Inc., 717 F.2d 1380, 1389 (Fed. Cir. 1983) raises tension with the ruling of the en banc court in In re Seagate Technology LLC, 497 F.3d 1360 (Fed. Cir. 2007) that overruled the standard of Underwater Devices.
2. Re:Infringe all the patents! by BSAtHome · 2012-09-01 07:43 · Score: 5, Interesting
  
  Basically, if you work around a patent's claim by ommiting step(s), but the user(s) are able to perform these ommitted steps, then you are liable.
  This means that a whole new area of induced infringement opens and I'm sure some companies are taking note how to extract more protection money from this.
  The bar is now lowered to a level where a chain of events can make you liable whether intended or not. It monopelizes not only the patented claims but the whole field of operation.
  Just wow...
3. Re:Infringe all the patents! by Jane+Q.+Public · 2012-09-01 08:19 · Score: 3, Insightful
  
  "Basically, if you work around a patent's claim by ommiting step(s), but the user(s) are able to perform these ommitted steps, then you are liable."
  Right. By analogy: now I can be liable for murder because I sold someone a gun legally, and he used it to kill somebody. He's not liable, but I am!
  
  That's just loony.
4. Re:Infringe all the patents! by Anonymous Coward · 2012-09-01 08:34 · Score: 1
  
  hmmm - judging from the two cases linked in the summary, it would be more like you choosing the gun, buying it, asking the seller to load it, and then killing someone with it - and claiming that you can't be done for murder because someone else performed one of the 'steps' (loading the gun)
5. Re:Infringe all the patents! by Jane+Q.+Public · 2012-09-01 08:49 · Score: 4, Insightful
  
  "hmmm - judging from the two cases linked in the summary, it would be more like you choosing the gun, buying it, asking the seller to load it, and then killing someone with it - and claiming that you can't be done for murder because someone else performed one of the 'steps' (loading the gun)"
  No, if you want to get particular: in the Akamai case, it is as though you sold someone a loaded gun, with the knowledge that he was going to kill someone with it, and then he did. That might in fact be actionable... you might be considered an accessory or even an accomplice.
  
  In the other case, it is as though you talked Joe into loading the gun, and selling it to Sam, then talked Sam into going to meet Bob and kill him. It that case, you did not actually perform any of the actions. And if you did not hold some kind of unusual persuasive power over them (e.g., they were "brainwashed" in some sort of highly unlikely manner) or hold some kind of coercive power over them (you kidnapped their children), then you probably did not break the law. You simply made suggestions, and the other guys should have known better.
6. Re:Infringe all the patents! by Yvanhoe · 2012-09-01 09:27 · Score: 2
  
  That sounds strange. Does it mean that an author of a C++ compiler can be held liable of any patent that his compiler allows to infringe? That the ability to add codecs to a video player makes the authors of the player liable for any infringing codec?
  
  --
  The Wise adapts himself to the world. The Fool adapts the world to himself. Therefore, all progress depends on the Fool.
7. Re:Infringe all the patents! by gmhowell · 2012-09-01 10:37 · Score: 1
  
  Several lawsuits of this exact type have been filed.
  
  --
  Jesus was all right but his disciples were thick and ordinary. -John Lennon
8. Re:Infringe all the patents! by shentino · 2012-09-01 10:57 · Score: 1
  
  You are only held liable if the elite don't like you.
  Companies in bed with each other are going to give each other a pass, as always.
9. Re:Infringe all the patents! by rohan972 · 2012-09-01 11:22 · Score: 1
  
  In the other case, it is as though you talked Joe into loading the gun, and selling it to Sam, then talked Sam into going to meet Bob and kill him. It that case, you did not actually perform any of the actions. And if you did not hold some kind of unusual persuasive power over them (e.g., they were "brainwashed" in some sort of highly unlikely manner) or hold some kind of coercive power over them (you kidnapped their children), then you probably did not break the law. You simply made suggestions, and the other guys should have known better.
  That could probably still result in conspiracy charges. http://en.wikipedia.org/wiki/Conspiracy_(crime)
  
  --
  http://marriedmansexlife.com/
10. Re:Infringe all the patents! by fustakrakich · 2012-09-01 12:56 · Score: 1
  
  "Induce infringement" and "Incite a riot" Two phrases that completely ignore the concept of free will. Apparently, under the law, we really don't have a free will. Maybe we're not as sentient as we make ourselves out to be. Under the law, we are talking chimps.
  
  --
  “He’s not deformed, he’s just drunk!”
11. Re:Infringe all the patents! by slick7 · 2012-09-01 13:48 · Score: 2
  
  "Basically, if you work around a patent's claim by ommiting step(s), but the user(s) are able to perform these ommitted steps, then you are liable."
  Right. By analogy: now I can be liable for murder because I sold someone a gun legally, and he used it to kill somebody. He's not liable, but I am! That's just loony.
  It's not the crime you are deemed guilty, it's the intent. "Cognito ergo terrorist"
  
  --
  The mind conceives, the body achieves, the spirit manifests.
12. Re:Infringe all the patents! by Jane+Q.+Public · 2012-09-01 14:04 · Score: 1
  
  "That could probably still result in conspiracy charges."
  That's true. It could be considered conspiracy. But only under certain circumstances. In this case, you aren't making agreements with the other parties, you are only suggesting to them what to do. So it probably isn't conspiracy, but IANAL.
13. Re:Infringe all the patents! by twocows · 2012-09-01 17:53 · Score: 2
  
  I'm still lost. Can you give me a car analogy?
14. Re:Infringe all the patents! by martin-boundary · 2012-09-01 18:16 · Score: 2
  
  You are only held liable if the elite don't like you.
  
  In other words, *everybody* is now liable. Look at how the RIAA makes these blanket accusations and random lawsuits against everybody and their pet hamster. If unrelated individuals can now be considered infringers due to performing a single step of some bullshit patent, this means that any patent troll like Nathan Myrvold's company has now grounds to potentially sue everyone (and extort a settlement fee).
15. Re:Infringe all the patents! by MysteriousPreacher · 2012-09-01 21:12 · Score: 1
  
  "Inducement" is the key word. Arguing that providing a C++ compiler is itself inducement to violate patents is as realistic as suing Xerox for inciting people to photocopy Twilight novels. I don't doubt that there are some cunts in this world who would indeed like to use the law that way, and try. Ideally the bulk of such cases would be dismissed, with the plaintiff's lawyers being disbarred, shot, revived, and shot again.
  
  --
  -- Using the preview button since 2005
16. Re:Infringe all the patents! by AmonTheMetalhead · 2012-09-02 01:10 · Score: 1
  
  In Belgium there is a tax on any machine capable of copying books (wether or not anyone would be insane enough to even try it doesn't matter). Any copier, multifunctional printer & whatnot is taxed on it's speed and the money goes to "authors".
17. Re:Infringe all the patents! by fustakrakich · 2012-09-02 01:17 · Score: 1
  
  No, a person with a free will will disengage from the crowd if it goes 'wrong'. If he joins in the riot, he's not using his free will, unless he does so by choice.
  In other words, they're usually sociopaths.
  AKA: politician, policeman, soldier. All require no small degree of sociopathy to perform their job.
  
  --
  “He’s not deformed, he’s just drunk!”
18. Re:Infringe all the patents! by Cute+Fuzzy+Bunny · 2012-09-02 02:42 · Score: 1
  
  I'm still lost. Can you give me a car analogy?
  Two cars are rolling down the street when one says "Hey, I notice you're painted red, and my company owns a patent on the color red. So lose the paint."
  Of course, this is a silly analogy. Paint color actually makes sense compared to some patent battles over finger movements and "style".
19. Re:Infringe all the patents! by bzipitidoo · 2012-09-02 03:12 · Score: 1
  
  What if you own and operate 2 businesses, a weapons shop, and a people locater service? Maybe they're next door, maybe not. Maybe they have web sites with links to each other, or maybe not. Then, after selling some weapons and locations, some people whose location you sold turn up dead by weapons you sold. We could even toss in a 3rd business of yours, a used car dealership, from which the murderers obtained a cheap ride. Doesn't sound like enough to be a conspiracy on your part. The guilty parties are the ones who did the deeds.
  But I think the court will look at intent. If the records of these businesses are sloppy, so that it is difficult or impossible to trace the weapons and cars, and this is deliberate as the businesses go as far as hinting at this in their advertising, then you might be in some trouble.
  
  --
  Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
20. Re:Infringe all the patents! by lonecrow · 2012-09-02 06:08 · Score: 1
  
  You simply made suggestions, and the other guys should have known better. IANAL but might it be criminal solicitation?
21. Re:Infringe all the patents! by Jane+Q.+Public · 2012-09-02 15:46 · Score: 1
  
  "But I think the court will look at intent."
  Yes, I am sure they will. But I also think there is a huge grey area here, in part because intent can be hard to show, but also because sometimes intent matters a lot, sometimes it does not.
  
  For example: I own an automobile dealership. My prices tend to be high. When I meet people, I tell them "Buy my cars!" I'm not even suggesting; I tell them outright. They (being reasonable people) think about it and check my prices. Then if they buy at all they buy from somebody else.
  
  In common and U.S. law there is something called the "reasonable man" principle. Today they probably call it "reasonable person", and that is not unreasonable. :o) But it means that laws are to be interpreted such that the people to whom they apply are assumed to be reasonable.
  
  So... again, I own an automobile dealership. My prices tend to be high. Without making any kind of "deal" or "agreement", I tell Joe to sell his gun to Sam (a convicted felon), and tell Sam to kill Bob. Would "reasonable people" do either of these things? If there is discernable profit or motive for me, I don't think conspiracy applies here.
  
  But that's probably straying from the point. I think in that court case, there was a demonstrable profit motive for "suggesting" that someone else infringe. But at the same time: would a reasonable, informed person, do it? I don't know, I never visited the web site.
  
  Apologize, I'm rambling a bit, but there is still that other point: sometimes intent can be very hard to establish. That is why many conspiracy laws require that an overt, physical act to carry out the conspiracy must occur before conspiracy can actually be charged. Because: we have freedom of speech. I have a right to speak speculatively about killing some politician if I want. I can even form a club with that (satirical) theme, and have meetings in which we play games related to creative ways to kill that politician, and even publish the minutes of those meetings. There is nothing illegal about that. It is protected under the 1st Amendment.
  
  So how do you distinguish that (a satirical game) from an actual conspiracy? You require that some actual ACT must be made to carry out that conspiracy. That is the only way you can really do it, without trying to legislate "thought crime".
22. Re:Infringe all the patents! by Jane+Q.+Public · 2012-09-02 15:48 · Score: 1
  
  Typo. I meant to write "UNLESS there is discernable profit or motive for me, I don't think conspiracy applies here."
Cory Doctorow FTW! by Anonymous Coward · 2012-09-01 07:23 · Score: 3, Interesting

Cory Doctorow's speeches and essays about the coming war on general purpose computing come to mind. Any Turing-complete computer is infringing. Destroy *all* the computers!
1. Re:Cory Doctorow FTW! by firex726 · 2012-09-01 07:46 · Score: 2
  
  Someone should write up an Apocalypse story about how the word and it's technology was ended though over zealous lawyers and patents.
2. Re:Cory Doctorow FTW! by Anonymous Coward · 2012-09-01 08:12 · Score: 2, Funny
  
  Someone should write up an Apocalypse story about how the word and it's technology was ended though over zealous lawyers and patents.
  Word UP! Done. See Revelations... Stand in line... Take a number... Once everyone gets a number a name will be revealed and He will demonstrate "Prior Art!"
  Watch out for 7 lawyers on horseback,,,
Patent infringement by IamGarageGuy+2 · 2012-09-01 07:26 · Score: 2

What are the exact steps it would take to reform the copyright act in America? Everybody will probably agree that this issue is front and centre for anybody in the tech industry. So the big question is how does the ball start rolling in the first place and I for one would be more than eager to start pushing.

--
Stay tuned for new sig...
1. Re:Patent infringement by Anonymous Coward · 2012-09-01 07:31 · Score: 4, Informative
  
  Maybe you should look into the difference between copyright and patents before you start pushing too hard.
  They don't have much in common except that they both go under the dubious umbrella of "intellectual property".
2. Re:Patent infringement by Anonymous Coward · 2012-09-01 07:34 · Score: 1
  
  Start by learning about the things you hate so much. Namely, the fact that patents and copyrights are unrelated.
3. Re:Patent infringement by davester666 · 2012-09-01 07:35 · Score: 2
  
  That process has been patented, as well as the process to reform the patent act in America.
  You sir, are clearly inducing others to infringe on these patents, and possibly others, and the only known method to ensure you stop doing so [and it also will act as a warning to others] is for you to be executed.
  Report for execution at your local police station on Tuesday, Sept. 4, at 10:00am local time, bringing a printout of this post, for summary execution.
  
  --
  Sleep your way to a whiter smile...date a dentist!
4. Re:Patent infringement by Frosty+Piss · 2012-09-01 07:39 · Score: 1, Insightful
  
  Namely, the fact that patents and copyrights are unrelated.
  Copyrights and patents are not "unrelated", they both deal with "intellectual property".
  
  --
  If you want news from today, you have to come back tomorrow.
5. Re:Patent infringement by docmordin · 2012-09-01 07:45 · Score: 2
  
  What you're asking, as with most difficult topics, is something that's not easy to answer: for every good intention there will be someone waiting to exploit it, for every forced concession on the part of large companies there will be major resistance, and so on.
  Personally, though, I'd prefer to see some sort of short-duration patent infringement immunity clause for new small business start-ups.
  To elaborate, I've come up some pieces of hardware that I'm both publishing about and having patented. Ideally, it'd be nice to spin the design and manufacturing elements of this hardware into a small company, as it not only would bring in a handful of high-paying engineering and development jobs to the state right away, but would also, hopefully, generate enough revenue to allow the pursuit of other endeavors, thus leading to more positions down the road. Unfortunately, however, to actually sell this device, I'll be forced to license an array of patents, which has the potential to eat up a lot of money that could be used for better purposes, e.g., bringing on more talented workers or for handling unforeseen situations. As a result, it would be nice to have a guaranteed, one or two year reprieve from having to negotiate the use of intellectual property from any other source, which would be ample time to get a product out to market and save up enough to license everything after that period, provided everything goes well and the company is still solvent.
6. Re:Patent infringement by Leuf · 2012-09-01 07:48 · Score: 1
  
  A patent will have to interfere with political fundraising in some significant manner. Patent reform will follow in about a week.
7. Re:Patent infringement by king+neckbeard · 2012-09-01 08:01 · Score: 1
  
  They are distinct and have distinct histories, but I wouldn't say they are unrelated. They are both legal monopolies, and the Constitutional purpose of both systems are to promote progress.
  
  --
  This is my signature. There are many like it, but this one is mine.
8. Re:Patent infringement by Jane+Q.+Public · 2012-09-01 08:26 · Score: 5, Insightful
  
  They don't have much in common except that they both go under the dubious umbrella of "intellectual property".
  "Intellectual property" is a term that was entirely made up for use as propaganda by rights-holders. It is actually a contradiction in terms, because there is no "property" at all involved in copyrights and patents, just time-limited privileges granted by government. But they have wanted you to THINK in terms of it being their "property". That makes you more amenable to distortions of the policies and laws.
  
  It's the same basic idea as calling downloading "piracy", when it isn't. (Copyright piracy actually has a legal definition that hasn't really changed in about 100 years.) Downloading is not a crime. Piracy is. But Big Media wants you to think of them as the same. They can get away with more that way.
9. Re:Patent infringement by K.+S.+Kyosuke · 2012-09-01 08:29 · Score: 1
  
  Oh, it will, but unfortunately, to the Middle East, it seems, which will cause an entirely different set of problems.
  
  --
  Ezekiel 23:20
10. Re:Patent infringement by Jane+Q.+Public · 2012-09-01 08:34 · Score: 1
  
  Copyrights and patents are not "unrelated", they both deal with "intellectual property"."\
  Since "intellectual property" is nothing but catch-all propaganda phrase created by rights-holders, has no real meaning, and is actually a contradiction (patents and copyrights are NOT "property" at all, in any sense of the term, morally, ethically, or legally), I would have to say you are wrong and he was right.
  
  Copyright and patent law are not terribly similar. They have very little in common, except that in the beginning, after this country was founded, they had similar time limits (depending on exact when you are talking about, it was between 15 and 20 years). Other than that, they have almost nothing to do with each other.
11. Re:Patent infringement by Jane+Q.+Public · 2012-09-01 08:36 · Score: 1
  
  "They are both legal monopolies, and the Constitutional purpose of both systems are to promote progress."
  In those senses, yes. But in the other sense given by someone else above, no.
12. Re:Patent infringement by Frosty+Piss · 2012-09-01 08:49 · Score: 1
  
  Since "intellectual property" is nothing but catch-all propaganda phrase created by rights-holders, has no real meaning
  Nonsense.
  Read about it here: http://en.wikipedia.org/wiki/Intellectual_property
  You may not like the laws both in the USA and indeed around the world with respect to "intellectual property", but that doesn't nullify the concept.
  
  --
  If you want news from today, you have to come back tomorrow.
13. Re:Patent infringement by fnj · 2012-09-01 09:00 · Score: 1
  
  What in that article makes the concept of patents valid, moral, ethical, and socially beneficial? Hmmm? I would say Jane Q. Public is spot on and you have adduced nothing to counter argue the point.
14. Re:Patent infringement by Jane+Q.+Public · 2012-09-01 09:01 · Score: 2
  
  "Um, that's exactly what property means."
  No, it isn't.
  
  "You don't actually think that you have exclusive, unfettered control over your house or your car, do you?"
  If they're paid off, essentially yes. There might be some minor exceptions in the way of environmental laws or taxes, but yes it is my property and I wasn't granted the rights to it by government, as patents and copyrights are. I have property rights via common law and the Constitution, and even the Supreme Court says those can't be taken away. But Congress could nearly (not entirely, but nearly) wipe out patents and copyrights in any session, if they really wanted to.
15. Re:Patent infringement by fnj · 2012-09-01 09:03 · Score: 1
  
  Dude, you missed you chance. It has already spread very widely through the world. Neither patents nor copyright even originated in the U.S.
16. Re:Patent infringement by Jane+Q.+Public · 2012-09-01 09:14 · Score: 2
  
  "Read about it here:"
  I did. But I think I read it a bit more thoroughly than you did.
  
  The first sentence of paragraph 2 says:
  
  "Although laws and concepts behind copyright and patents are not new, the term intellectual property is relatively recent, dating from the 19th century."
  Which is pretty much what I stated earlier, in another post. Further, the reference [2] given at the end of that sentence is this paper, which discusses why "intellectual property" is not actually property.
17. Re:Patent infringement by king+neckbeard · 2012-09-01 09:18 · Score: 1
  
  They are distinct areas of law with distinct histories and substantial differences in operation and the underlying philosophies that support them are very different. They are only a few reasons to support the usage of that term: you are pushing propaganda and possibly drawing a benefit from confusion and conflation of different areas of law, you are an idiot, you are going along with the popular trend established by the first two groups.
  
  --
  This is my signature. There are many like it, but this one is mine.
18. Re:Patent infringement by Frosty+Piss · 2012-09-01 09:20 · Score: 1
  
  What in that article makes the concept of patents valid, moral, ethical, and socially beneficial?
  Nothing at all. The original post suggested that "intellectual property" did not exist. Clearly hog-wash.
  The existence of what makes up the definition of "intellectual property" is a separate thing from the debate about if - or not - such things should be copyrightable / patentable.
  
  --
  If you want news from today, you have to come back tomorrow.
19. Re:Patent infringement by BlueStrat · 2012-09-01 09:27 · Score: 1
  
  I have property rights via common law and the Constitution, and even the Supreme Court says those can't be taken away.
  Well, on the "can't be taken away" part, the SCOTUS has ruled "Not so much", if the government believes it can make more in revenue by taking your property away from you and giving your property to someone else.
  http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London
  "Sorry, but you're not using your property in such a way that results in us making as much in revenues than if we gave your property to this other person/entity. We're going to take that property away from you and give it to them. Sorry about your home/farm/shop that's been in your family for generations."
  "You don't own that!"
  Strat
  
  --
  Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
20. Re:Patent infringement by Jane+Q.+Public · 2012-09-01 10:46 · Score: 2
  
  "Well, on the "can't be taken away" part, the SCOTUS has ruled "Not so much", if the government believes it can make more in revenue by taking your property away from you and giving your property to someone else."
  True, that is one of the many questionable rulings that have come out of the recent Court. But the ruling that they can't take your property without fair compensation still holds. Theoretically, you should be able to get a comparable piece of property with that compensation.
21. Re:Patent infringement by shentino · 2012-09-01 10:59 · Score: 2
  
  I predict option 4: Established corporations build themselves a gentleman's cartel and only let each other in on the action.
22. Re:Patent infringement by BlueStrat · 2012-09-01 11:59 · Score: 1
  
  "Well, on the "can't be taken away" part, the SCOTUS has ruled "Not so much", if the government believes it can make more in revenue by taking your property away from you and giving your property to someone else."
  
  True, that is one of the many questionable rulings that have come out of the recent Court. But the ruling that they can't take your property without fair compensation still holds. Theoretically, you should be able to get a comparable piece of property with that compensation.
  Precisely, however, "fair compensation" is a matter of opinion, and may vary widely depending on the individual case, location, particular individuals in government performing the action, etc.
  If one is "well-connected", your chances of the compensation being "fair" are much better (or even used as a windfall political payoff to private-sector cronies in some instances).
  If you're not so well-connected, or a member of political opposition, your chances of "fair compensation" actually being fair are...slimmer.
  Strat
  
  --
  Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
23. Re:Patent infringement by jedidiah · 2012-09-01 12:20 · Score: 3, Insightful
  
  Patents and copyrights expire.
  Actual property rights do not.
  Copyrights and Patents exist only because that power is granted to the Government under a limited set of circumstances. It is not a right granted to individuals like those listed in the Bill of Rights. It does not exist for the benefit of the "owner". It exists for a limited time for the benefit of society in general.
  The unbound nature of a thought makes the abiltiy to exclude others from it as a natural right rather absurd.
  
  --
  A Pirate and a Puritan look the same on a balance sheet.
24. Re:Patent infringement by Jane+Q.+Public · 2012-09-01 12:56 · Score: 1
  
  "If one is "well-connected", your chances of the compensation being "fair" are much better (or even used as a windfall political payoff to private-sector cronies in some instances)."
  I don't dispute this. Our revolving-door, cronyist government needs fixing. I would argue that it is the reason for that SCOTUS ruling in the first place. As James Madison (among others) warned us -- see his Report of 1800 -- even the Supreme Court is not immune from outside influence and corruption.
25. Re:Patent infringement by onemorechip · 2012-09-01 13:00 · Score: 1
  
  Patents and copyrights are privileges. Ownership of tangible goods is also a privilege (you can't just claim ownership of that sack of rice in the grocery store, you
  know). The major difference is that one privilege emanates from the government. The other is the result of a private transaction.
  
  --
  But, I wanted socialized health insurance!
26. Re:Patent infringement by onemorechip · 2012-09-01 13:03 · Score: 1
  
  If one is "well-connected", your chances of the compensation being "fair" are much better (or even used as a windfall political payoff to private-sector cronies in some instances).
  If you're not so well-connected, or a member of political opposition, your chances of "fair compensation" actually being fair are...slimmer.
  Strat
  Ah, a progressive suggestion if ever I've heard one!
  
  --
  But, I wanted socialized health insurance!
27. Re:Patent infringement by fustakrakich · 2012-09-01 13:06 · Score: 1
  
  Islam and Christianity aren't very closely related, but would you accept that they fall under the 'catch-all propaganda phrase' of religion?
  
  --
  “He’s not deformed, he’s just drunk!”
28. Re:Patent infringement by fustakrakich · 2012-09-01 13:14 · Score: 1
  
  In those senses, yes
  It is only in those senses I've ever used the the phrase. The pedants who argue otherwise are just trying to divert the debate into offtopic gibberish. Yes, 'intellectual property' is an absurd idea. But the phrase is a convenient catch-all to point out the absurdity of the law.
  
  --
  “He’s not deformed, he’s just drunk!”
29. Re:Patent infringement by fustakrakich · 2012-09-01 13:24 · Score: 1
  
  Copyright/patent law, along with various other prohibitions we suffer, is a good example of the failure of majority rule. However, the alternative method of abolishing* it is not exactly palatable to most people.
  * I don't believe you can 'reform' something that is functioning perfectly as designed. See sig?
  
  --
  “He’s not deformed, he’s just drunk!”
30. Re:Patent infringement by king+neckbeard · 2012-09-01 14:00 · Score: 1
  
  Except that trade secrets aren't legal monopolies, and trade secrets, trademarks, and trade dress are not covered under Article 1, Section 8, clause 8. Trademarks are actually a useful system, so long as they are limited to identification of the source of a product or endorsement by a particular agency.
  
  --
  This is my signature. There are many like it, but this one is mine.
31. Re:Patent infringement by kaws · 2012-09-01 16:13 · Score: 1
  
  I doubt that Google would move behind "The Great Firewall" btw, just a little side thing not to discount the point your making.
32. Re:Patent infringement by qeveren · 2012-09-01 16:40 · Score: 1
  
  "Intellectual Property", however, is a complete fiction. It's a nicely-distorting term, as other posters have pointed out.
  
  --
  Don't just stand there, get that other dog!
33. Re:Patent infringement by Travelsonic · 2012-09-01 18:09 · Score: 1
  
  Um... first point is irrelevant, 2nd point is flat wrong, mr. Anon. Coward.
  
  --
  If you believe in privacy, and believe you have "nothing to hide" at the same time, you're a goddammed idiot
34. Re:Patent infringement by dryeo · 2012-09-01 18:33 · Score: 1
  
  Bad example considering they're both branches of the same religion with different interpretations of the same God.
  You should have said something like "Christianity and Hinduism aren't very closely related ..."
  
  --
  https://en.wikipedia.org/wiki/Inverted_totalitarianism
35. Re:Patent infringement by Anonymous Coward · 2012-09-01 19:10 · Score: 2
  
  copyrights expire.
  Only theoretically...
  I don't see anything created in my lifetime expiring before my death, so for anything currently under copyright, it's effectively unlimited (and I fully expect further exiensions as Mickey nudges up towards the current limit).
36. Re:Patent infringement by BlueStrat · 2012-09-01 19:33 · Score: 1
  
  If one is "well-connected", your chances of the compensation being "fair" are much better (or even used as a windfall political payoff to private-sector cronies in some instances).
  If you're not so well-connected, or a member of political opposition, your chances of "fair compensation" actually being fair are...slimmer.
  Strat
  
  Ah, a progressive suggestion if ever I've heard one!
  Yes, quite progressive. Because some ani^H^H^H^Hpeople are more equal than others...
  Right?
  Strat
  
  --
  Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
37. Re:Patent infringement by BlueStrat · 2012-09-01 20:04 · Score: 1
  
  Apologies.
  Just to be clear, I'm agreeing and carrying the idea forward.
  After posting it and looking at it, I realized it could possibly be misinterpreted as an attack, which it's not.
  Carry on!
  
  --
  Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
38. Re:Patent infringement by BlueStrat · 2012-09-02 00:55 · Score: 1
  
  Just because something can be ceased by the government doesn't mean that you don't own it. By that logic nobody owns anything because the government could potentially take out a warrant or get a subpoena at any time in order to cease it. Now, if the government can just take it without you having the right to challenge the seizure, that would be a different matter altogether.
  Apart from the differently-sane, people wouldn't normally say that they don't own anything.
  Besides the Eminent Domain abuses issue under discussion as it pertains to how really illusory our individual rights to property have become in recent years, let me add for your edification another term:
  Civil asset forfeiture.
  http://en.wikipedia.org/wiki/Asset_forfeiture
  Do a Google search. This power the government suddenly decided they have to do an end-run around the US Constitution has seen much abuse of late, especially in the eternal and still-failing-miserably "War On (some) Drugs (and 'those' people)".
  You have the right to your property only so long as those with more wealth and/or power than you have allow it.
  Strat
  
  --
  Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
39. Re:Patent infringement by fustakrakich · 2012-09-02 01:09 · Score: 1
  
  In patents and copyrights, money is god. Now we can combine all business as one giant holistic corporation.
  
  --
  “He’s not deformed, he’s just drunk!”
40. Re:Patent infringement by alexo · 2012-09-06 02:00 · Score: 1
  
  What are the exact steps it would take to reform the copyright act in America?
  Differences between copyrights and patents aside, please remember that the interests of the people who will actually get to implement the reform that you ask for, are diametrically opposite to yours.
Squares by jonfr · 2012-09-01 07:43 · Score: 1

Oh, good. Now everyone can sue Apple for infringe there patents. Even if they did not take all the steps. This goes both ways for Apple.
1. Re:Squares by Noughmad · 2012-09-01 20:16 · Score: 1
  
  This goes both ways for all companies with patents. However, it goes only one way for two groups:
  - consumers
  - lawyers
  Who wins and who loses is left as an exercise to the reader.
  
  --
  PlusFive Slashdot reader for Android. Can post comments.
OMG, I'm gong to patent jail by swschrad · 2012-09-01 08:14 · Score: 1, Funny

I accidentally saw a Samsung phone when I went to buy my iPhone. I'm in violation!

--
if this is supposed to be a new economy, how come they still want my old fashioned money?
1. Re:OMG, I'm gong to patent jail by shutdown+-p+now · 2012-09-01 18:26 · Score: 1
  
  Don't worry, you're not. It's Samsung that's on hook for another $1B for inducement.
Not really new by Animats · 2012-09-01 08:24 · Score: 1

This has come up before, usually in connection with outsourcing. You can't avoid infringement of a process patent by outsourcing part of the process. It gets complicated, but if one party set up a situation so that multi-party infringement was going to happen, they're called the "mastermind".
Stepping Back by Luveno · 2012-09-01 08:55 · Score: 1

All this word-wrangling about who-thought-of-what-first and who-made-who-do-what seems pretty infantile. Meanwhile, the rest of the world is going to go about making shit that people want to buy while the US and the companies that are part of it sit here and argue in court with themselves. Such a waste of financial resources and productivity.
Re:Anyone care to summarize? by fnj · 2012-09-01 09:05 · Score: 1

Yeah, the summary is "you're screwed". Bow before your masters.
Re:What if a mouse deigns to die in a new mousetra by king+neckbeard · 2012-09-01 09:24 · Score: 1

If you hold someone responsible for only infringing on part of a patent's steps, then we've got a serious problem. For example, Intel can be sued for every single software patent that they don't own. Patents are supposed to be very precise for a damn good reason.

--
This is my signature. There are many like it, but this one is mine.
Method and Apparatus now only Methods? by VortexCortex · 2012-09-01 10:08 · Score: 2

All the software patents I've read use a loophole: Method and Apparatus. They try to say the Methods must be used on a Device, because you can't just patent the method itself. Software by itself would not infringe. The blank device by itself would not infringe, but when the two come together and the end user executes that software on the device, then an infringement is made. Now, I can execute any software on graph paper using my mind as the Apparatus, but minds aren't considered general purpose computers for some reason (despite the first "computers" actually being teams of humans)...
For a while I thought it would be cool to have one company were to sell only the software, and another company were to sell the device. The user would be the infringer when they stuck the sim card in the phone and booted / installed the OS -- Combined Method with Apparatus. However, contributory infringement or inducement to infringe would still be an issue in this instance. The issue is less clear though, since no one company did both acts. Unexecuted software can't infringe by itself, nor can a general purpose computer make the infringement. Now that we have case law suggesting that even though no company did all the steps themselves there was an infringement, who do we sue? Which one?
I think the real question we should be asking is: Where is the Proof that Patents are Beneficial to Society as a Whole? The law assumes such is true, but we haven't tested that hypothesis. We should perform the experiment and collect data, and THEN decide whether or not to keep patent laws on the books; That experiment being: Abolish Patents.
Only the uneducated minds would ever agree to be ruled in such a careless way. No Engineer or Scientist would agree to be ruled as you are! "We think this law is good, let us roll it out to the entire populous at once without any testing!" The flaws in the system run deeper than just whether or not Artificial Scarcity is ethical -- The flaws go all the way to the top: Let's Run The Land With Untested Hypotheses!
Fools. All of you!
1. Re:Method and Apparatus now only Methods? by onemorechip · 2012-09-01 12:51 · Score: 1
  
  "We think this law is good, let us roll it out to the entire populous at once without any testing!"
  The entire populous what?
  
  --
  But, I wanted socialized health insurance!
2. Re:Method and Apparatus now only Methods? by shentino · 2012-09-01 12:58 · Score: 1
  
  The hypothesis is in fact tested.
  We just aren't the ones designed to benefit.
Re:Maybe... by Kalriath · 2012-09-01 10:09 · Score: 1

Life's so much easier in a country with no McKesson presence. We're happily inventing the fuck out of solutions to all our EHR problems.

--
For a site about things like basic rights, Slashdot users sure do like to censor "dissent".
woot by Osgeld · 2012-09-01 12:07 · Score: 1

so now you can sue people into oblivion for not infringing on the patent you did jack all nothing to get in the first fucking place
America, hotbed of innovation ... as long as your a multibillion dollar company with a warchest
2012 by onemorechip · 2012-09-01 12:47 · Score: 4, Insightful

So, will 2012 be remembered in history as the year we finally kissed innovation goodbye? Or at least, the year that the USA abandoned innovation to foreign countries?

--
But, I wanted socialized health insurance!
1. Re:2012 by alexo · 2012-09-06 02:03 · Score: 1
  
  So, will 2012 be remembered in history as the year we finally kissed innovation goodbye?
  "Innovation" is a monopoly of the rich and powerful (specifically: corporations) and has been for some time.
Re:Anyone care to summarize? by toriver · 2012-09-01 18:54 · Score: 2

Here's a summary: "Silly country allows software patents. Lawsuits galore."
The entire future will be patented by MindPrison · 2012-09-01 19:38 · Score: 1

Sorry kid, your DNA is already patented, your life is a patent infringement.
What is the 1st amendment? What is freedom and how do we define it?
I realize you can't just go out there and make a CLEAN direct copy of a product, that would just be stealing, I would even agree to that, but the patent madness has gone too far when it allows to patent basic formulas, words and names, basic functionality and things that are considered - basic.
Thanks to this patent madness, people in 3rd world countries never receive cheap medicines to ail their illnesses, will never be able to make their own equipment to make it on their own, because someone owns a patent somewhere - on a single BASIC part that makes that machine possible.
To me this is MASS suppression of freedom, how long will we stand before this has gone far enough? There was a time when we laughed at the very idea of selling bottled water, now we laugh at the idea of selling bottled air... things change - slowly - in the direction we decide, but it could happen so slowly that you hardly notice that something somewhere changed.
You just said...Meh... who cares about one little patent...and then another one...and then another one, eventually everything will be corporate, corporate owned by a very few privileged families, and WE made it happen - don't blame them later on!

--
What this world is coming to - is for you and me to decide.
Misleading headline by Theaetetus · 2012-09-01 19:59 · Score: 1

First, it's already been the law that you can infringe a patent even if you didn't do all the steps, provided you either (1) partnered with someone else and split the steps between you, performing all of them as a team; or (2) induced or encouraged someone else to perform all the steps.
Second, this is just refining inducement, no. 2 above: if you encourage someone to perform one or more of the steps, and you perform the rest, you're infringing the patent, even if you're not explicitly acting as partners. This makes sense for many reasons, not the least of which being that it closes the above loophole in which you induce someone else to infringe and perform the first step for them, suddenly making it non-infringing under the old law.
Why say Federal Court when you mean CAFC by WOOFYGOOFY · 2012-09-02 03:54 · Score: 1

most readers know the shit-pit of IP maximalists / true believers who have shepherded in the current system of "business patents" and ",method patents" and "software patents" better by their initials CAFC.
It's important to call things by their common names.
For those not familiar with the CAFC, here's a brief backgrounder:
The short-take is the CAFC is stuffed to the gills with Reagan, GW, and W Ayn Rand freaks who think anyone who ever cut a fart and cleared a room has done something "innovative and useful" and deserves a patent.
The longer story is the CAFC was created under Reagan with nation-wide jurisdiction, (which makes it more influential than any other national circuit court ) special subject matter (patents) and only "optional" oversight by SCOTUS which means it's usually the last stop for decisions on patent matters irrespective of how fucking crazy and ignorant those decisions ware or how disastrous follow on consequences. IP attonreys love he CAFC because its been so reliable in fulfilling its (unspoken) mission statement- ram as much IP up the world's ass as you possibly can because everything is some form of private property, there is no such thing as a commons or shouldn't be, and the more private property there is in the hands of the smallest group of people possible, the more the world looks like what Jesus and Ayn Rand (choose one) meant it to be.
That's why they're so active in overturning huge numbers of carefully considered decisions of the lower courts, and just making up what the fuck ever law they want from their positions on the bench... that Reagan made-
http://en.wikipedia.org/wiki/Association_for_Molecular_Pathology_v._Myriad_Genetics http://inventivestep.net/2012/08/16/federal-circuit-holds-isolated-genes-to-be-patentable-subject-matter-again/
They're an equal opportunity infringement -finder , who considerately gives everyone a chance to play the role of IP infringer:
http://www.techdirt.com/blog/?tag=cafc
and they shed crocodile tears when their insane interpretations and overturning of lower court decisions blows everything the fuck up and turns whole industries into innovation free, IP attorney goldmining zones
http://www.techdirt.com/articles/20080728/0236131808.shtml
They're sort of to innovation what Greenspan, Rubin and Summers were to the economy.. Maoist-level acolytes and zealots for a psycho version of How The World Works with the power to force everyone else's life to be part of the Grand Experiment.
There must be corruption of the rankest sort involved here. You're telling me these judges aren't invited to parties of friends, which are indirectly paid for by lobbyists of the corporations and law firms who are the ultimate beneficiaries of this courts radical decisions, at which parties they have the fantastic good luck not just to overhear highly reliable stock tips but also become the focus of strikingly good looking women who are unnaturally attracted to them and proceed to suck them off to completion in the 15th unused bedroom of the party house on like, regular basis?
Is that what you're telling me? Is it??? Is it??? Because I don't believe you.
Watch out, ecommerce systems. by rosciol · 2012-09-02 13:25 · Score: 1

So any ecommerce system with any number of clicks to purchase has now infringed on 1-click purchasing. After all, all they did is leave out a step that the consumer has to perform (an extra click). Everyone is liable!
Re:Maybe... by uhmmmm · 2012-09-08 10:45 · Score: 1

You do realize that CMS only published the final rule for stage 2 on August 23, right?