But if you can say 1) you have a patent on your own product and 2) the government doesn't grant patents on the same thing, then, to a jury, you've just proved that you can't infringe because you having a patent on your product demonstrably shows it's different.
The burden of proof to show infringement is preponderance of the evidence, i.e., more likely than not, i.e., 51% likely.
The burden of proof for invalidating a patent is clear and convincing evidence. There isn't a numeric equivalent, but I've heard a litigator say "past the 11th inch on a ruler." This is because the system gives deference to the examination performed by the patent office (which tests the validity of a claim during the examination using a standard effectively equivalent to the preponderance of the evidence).
The issue in the i4i case is if the burden of proof for invalidating a patent when the prior art was not in front of the patent office. Microsoft is basically saying "if the Patent Office didn't consider it in the initial review, that reference should be given the deference given to a reference that the Patent Office considered."
And to be clear about the GP's question, there is a very famous quote that goes "that which infringes, if later, would anticipate, if earlier."
First of all, I'm not trolling. I asked you what the claim needed to cover a specific implementation under your definition. You didn't respond to that at all.
Instead, you made a vague reference to some case - that you're not even sure of the defendant - where the company was accused of infringement. And even IF they were found to infringe, you still provided NO analysis or commentary as to how similar or dissimilar the defendants system was compared against what was described in the patent. Based on the "facts" you've provided so far, Barnes and Noble (?) could have copied the source code verbatim from Amazon. But - under your premise - because they are different company, if Amazon's patent covered them, then it must be overbroad and is just covering an idea.
Lastly, saying "someone-question mark was enjoined" is not citing to a real, actual, legal decision.
ProCD, Inc. v. Zeidenberg, 86 F. 3d 1447 (7th Cir. 1996) (holding that click through EULAs are enforceable).
I'm still working my way through the paper you cited, but complaining about the R&D costs needed to invent around a patent?! That's the whole point! They cause further research. That's how they "promote the Progress of Science and useful Arts."
Ah the old "I don't have to back up my position because I can vaguely allude to some anecdote" defense that Aristotle and Plato often used. Well played sir, well played.
If there is no apprehension of being sued by the patent owner, your DJ action will fail. You can let them know you infringe and they can choose to do nothing about it. The patent itself isn't affected by ignoring you; only their potential claim against you suffers.
How specific do you expect a claim to be? Seriously. Below is claim 1 of the one-click patent. What do you want to see there: "on a Unix-based system?" "Wherein the component is coded in Java"? Everything is identified in the specification, so there is a finite number of what things like an "identifier" can be (or an equivalent). So please, tell me what else there needs to be according to you to convert this from being an idea to specific solution.
1. A method of placing an order for an item comprising: under control of a client system, displaying information identifying the item; and in response to only a single action being performed, sending a request to order the item along with an identifier of a purchaser of the item to a server system;
under control of a single-action ordering component of the server system, receiving the request;
retrieving additional information previously stored for the purchaser identified by the identifier in the received request; and
generating an order to purchase the requested item for the purchaser identified by the identifier in the received request using the retrieved additional information; and fulfilling the generated order to complete purchase of the item whereby the item is ordered without using a shopping cart ordering model.
The cost of litigating and defending patents increases the cost of everything in the computer industry by about 10%. This isn't even adding in the costs and burdens upon the general public from the monopoly rents that result.
n contrast to your engineer, who will tell you how to perform minor maintenance yourself, did your lawyer tell you how to sue fax spammers on your own in the future?
With all due respect, this is bunk. Most software companies sell maintenance contracts and do not tell you how to "fix it yourself." On the other hand, I routinely instruct my clients on how the law works and help them help themselves because it helps me be a better lawyer. A) It ensures that I know what I'm talking about first and B) it makes future conversations with them easier because I'm not reeducating them every time. My main client contact probably could forgo my services at this point. And no, I am not a "ra ra open source and EFF are great - I will work for pennies" attorney - I'm one of the "evil" attorneys that work for big corporations that everyone around here hates. But I also don't fit the stereotype because, believe it or not, the stereotype is really inapplicable to most lawyers.
What most engineers don't seem to appreciate that while they see things in very binary terms, i.e., right and wrong or true and false, what they fail to appreciate is that another engineer will disagree with them on what is what. Lawyers, on the other hand, have to deal almost exclusively with shades of grey. That's why many people despise Obama and John Kerry - because those guys are always hedging and looking for the nuanced answer, when, to a lot of people, it's black and white.
As a software-engineer-turned-patent-lawyer, who rarely visits/. anymore because of all the blind lawyer hate and weeping and gnashing of teeth, thank you. Seriously.
Oh, and in your drug example? Most research is carried out in publicly funded universities, which then pull patents and sell them to drug companies. We're paying for the research, the drug companies are profiting from it. Your example is imaginary.
Please give me some stats on "most" research, because I'm betting "most" research is carried out by private universities that have licensing departments and tuition funding their research.
As for Copyright being only 300 years, you didn't read the Wikipedia article (I'm sure that's all the research you've actually done on this) far enough: One of the earliest copyright disputes reputedly took place in 557 A.D. between Abbot Finnian of Moville and St. Columba over St. Columba's copying of a Psalter belonging to an Abbot. The dispute over ownership of the copy led to the Battle of Cúl Dreimhne (also known as the Battle of Cooldrumman), in which 3,000 men were killed.
I'm not trying to change your mind - It's clear that you'd rather get the pitchforks and torches when it comes to IP, but at least cite support for your position or do some basic digging before you go a'lynchin'.
And calling the guy stupid because he disagrees with you? Glad we're not trying to engage in intelligent discourse and instead are devolving into 3rd grade playground debates. Impressive way to make your point, douche.
holy crap. All this time I thought I just never learned to type. I never connected it to our first computer (the Atari 400). World... crashing....down.....oi.
"(c) Other Rights, Etc., Not Affected.--(1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title."
I'm calling you out - what exactly did I say to challenge the legal position outside of any remarks about its defenders?
Fact: I didn't. I even prefaced my original post with the "opinion itself is not a troll"
I may have attacked its followers as fanatics because they post lists and list of links to materials about it to every legal story on slashdot, and again, you aren't doing much to change my thoughts on that, but I haven't challenged the theory itself; I have no basis to since I've done very little research on the subject other than generally familiarize myself with it.
So even though I thought we were done with this four days ago, I invite you to quote one of my posts to show where exactly I challenged the validity of the legal theory itself. I promise, you won't find it.
Because every time there is an article on slashdot about a trial, people repeatedly post links to the whole "jury is more powerful than the president" and "no judge should be able to overturn a jury's verdict." While the opinion itself is not a troll, the constant linking to what could be construed as a fanatic viewpoint is.
Add your responses and QED. I never said your opinion was wrong or not legally correct, but you freaking the f out comes across as fanaticism. My point stands, and you - yes YOU, feel free to take this personally - have only proven my point. I'm not backing down or away from that.
oooooook. Again, I never said that it "didn't sound right." I said the way it's supporters came across was as fanatics. Your borderline irrational posts aren't helping, regardless of the validity and legal support you may have.
And I never attacked your character. You took my response that the viewpoint can be viewed as fanaticism way too personally. Take a deep breath, step away from the computer, and chill the hell out.
You can post citations all you want, but you're no better than someone citing the bible out of context. Your Sullivan quote is entirely dicta, and FYI, I read the S.Ct. opinion and the cases it cites.
I'm not disputing it as not sounding right, I'm pointing out that people are fanatic about the whole "jury is the most powerful thing in the US" viewpoint. That you cite random buts from cases not dealing with the point at issue (Sullivan was about a constitutionally deficient jury instruction) only reinforces my view of your fanaticism.
No, I understood your viewpoint, but the reasoning is that one begets the other, i.e., the thinking is that because judges will void contracts at the drop of a hat, EULAs aren't enforceable, both of which are wholly untrue.
Because every time there is an article on slashdot about a trial, people repeatedly post links to the whole "jury is more powerful than the president" and "no judge should be able to overturn a jury's verdict." While the opinion itself is not a troll, the constant linking to what could be construed as a fanatic viewpoint is.
And sadly you remain buried at 2 while the incorrect "a judge will void a EULA" floats to the top at 5.
Dear anti-EULA crowd, IAAL, EULAs and click-wraps are enforceable. Go look up Pro-CD, go look up Hill v. Gateway for proof. I have yet to see the support for the "EULAs are not enforceable" that is always posted to slashdot and always modded as informative. Show me an appellate case that says otherwise and I'll change my tune.
Till then, don't get your legal advice from slashdot.
The salary equation is simple: YourSalary = HowMuchMoneyDoYouGenerateFor(SomeoneElse).
Doctors and Lawyers make a lot because they make hospitals and firms a lot more (and btw, I'm an attorney). However, district attorneys don't make much because they don't make the government money putting criminals away. General family practitioners are also usually lowest on the doctor pay scale because they don't tend to make a lot for their offices (they aren't performing expensive operations). Teachers don't make anyone money, so usually they get paid crap, unless they are prestigious professors that can presumably generate a lot of money for a college through increased tuition, enrollment, or other factors. Even then, their salary is rarely astronomical compared to doctors and lawyers in private practice.
Financiers on Wall Street make tons because they make investors tons more - I knew a guy that had a salary of $250k, but his bonus was $500k (in like 2005) because it was a drop in the bucket compared to what he was generating for the firm he worked for. While some may argue it is the skillset that reflects the salary, my equation is more real-world. Look at a Wall Street investor with three years experience versus a teacher of say 15 years. The investor has some experience, but is still learning the ropes in some respects while the teacher is quite experienced. Yet the investor is going to make more money because he can make other people more money. Experience or specialization doesn't have that much do with it.
Same thoughts for stars and athletes. People go to theaters/stadiums presumably to see the actors/athletes, which in turn make movie studios/sports teams lots of money. Then the stars/athletes can in turn demand more. It's a two-way street though. Actors could demand all they want, but if the studios didn't agree to it, they wouldn't be paid so much. Studios agree because they see it as a way to increase their revenue.
Soldiers don't make anyone money, so they aren't paid much, despite the clear risks they take and how they put their life on the line
Slashdot Mirror
But if you can say 1) you have a patent on your own product and 2) the government doesn't grant patents on the same thing, then, to a jury, you've just proved that you can't infringe because you having a patent on your product demonstrably shows it's different.
The burden of proof to show infringement is preponderance of the evidence, i.e., more likely than not, i.e., 51% likely.
The burden of proof for invalidating a patent is clear and convincing evidence. There isn't a numeric equivalent, but I've heard a litigator say "past the 11th inch on a ruler." This is because the system gives deference to the examination performed by the patent office (which tests the validity of a claim during the examination using a standard effectively equivalent to the preponderance of the evidence).
The issue in the i4i case is if the burden of proof for invalidating a patent when the prior art was not in front of the patent office. Microsoft is basically saying "if the Patent Office didn't consider it in the initial review, that reference should be given the deference given to a reference that the Patent Office considered."
And to be clear about the GP's question, there is a very famous quote that goes "that which infringes, if later, would anticipate, if earlier."
First of all, I'm not trolling. I asked you what the claim needed to cover a specific implementation under your definition. You didn't respond to that at all.
Instead, you made a vague reference to some case - that you're not even sure of the defendant - where the company was accused of infringement. And even IF they were found to infringe, you still provided NO analysis or commentary as to how similar or dissimilar the defendants system was compared against what was described in the patent. Based on the "facts" you've provided so far, Barnes and Noble (?) could have copied the source code verbatim from Amazon. But - under your premise - because they are different company, if Amazon's patent covered them, then it must be overbroad and is just covering an idea.
Lastly, saying "someone-question mark was enjoined" is not citing to a real, actual, legal decision.
ProCD, Inc. v. Zeidenberg, 86 F. 3d 1447 (7th Cir. 1996) (holding that click through EULAs are enforceable).
THAT's citing a real, actual, legal decision.
Today's wheel - spokes, rims, inflatable - is very different than the first wheel made of stone.
I'm still working my way through the paper you cited, but complaining about the R&D costs needed to invent around a patent?! That's the whole point! They cause further research. That's how they "promote the Progress of Science and useful Arts."
Ah the old "I don't have to back up my position because I can vaguely allude to some anecdote" defense that Aristotle and Plato often used. Well played sir, well played.
If there is no apprehension of being sued by the patent owner, your DJ action will fail. You can let them know you infringe and they can choose to do nothing about it. The patent itself isn't affected by ignoring you; only their potential claim against you suffers.
How specific do you expect a claim to be? Seriously. Below is claim 1 of the one-click patent. What do you want to see there: "on a Unix-based system?" "Wherein the component is coded in Java"? Everything is identified in the specification, so there is a finite number of what things like an "identifier" can be (or an equivalent). So please, tell me what else there needs to be according to you to convert this from being an idea to specific solution.
1. A method of placing an order for an item comprising:
under control of a client system, displaying information identifying the item; and in response to only a single action being performed, sending a request to order the item along with an identifier of a purchaser of the item to a server system;
under control of a single-action ordering component of the server system, receiving the request;
retrieving additional information previously stored for the purchaser identified by the identifier in the received request; and
generating an order to purchase the requested item for the purchaser identified by the identifier in the received request using the retrieved additional information; and
fulfilling the generated order to complete purchase of the item whereby the item is ordered without using a shopping cart ordering model.
The cost of litigating and defending patents increases the cost of everything in the computer industry by about 10%. This isn't even adding in the costs and burdens upon the general public from the monopoly rents that result.
Cite please.
n contrast to your engineer, who will tell you how to perform minor maintenance yourself, did your lawyer tell you how to sue fax spammers on your own in the future?
With all due respect, this is bunk. Most software companies sell maintenance contracts and do not tell you how to "fix it yourself." On the other hand, I routinely instruct my clients on how the law works and help them help themselves because it helps me be a better lawyer. A) It ensures that I know what I'm talking about first and B) it makes future conversations with them easier because I'm not reeducating them every time. My main client contact probably could forgo my services at this point. And no, I am not a "ra ra open source and EFF are great - I will work for pennies" attorney - I'm one of the "evil" attorneys that work for big corporations that everyone around here hates. But I also don't fit the stereotype because, believe it or not, the stereotype is really inapplicable to most lawyers.
What most engineers don't seem to appreciate that while they see things in very binary terms, i.e., right and wrong or true and false, what they fail to appreciate is that another engineer will disagree with them on what is what. Lawyers, on the other hand, have to deal almost exclusively with shades of grey. That's why many people despise Obama and John Kerry - because those guys are always hedging and looking for the nuanced answer, when, to a lot of people, it's black and white.
OK, tangent over.
As a software-engineer-turned-patent-lawyer, who rarely visits /. anymore because of all the blind lawyer hate and weeping and gnashing of teeth, thank you. Seriously.
Oh, and in your drug example? Most research is carried out in publicly funded universities, which then pull patents and sell them to drug companies. We're paying for the research, the drug companies are profiting from it. Your example is imaginary.
Please give me some stats on "most" research, because I'm betting "most" research is carried out by private universities that have licensing departments and tuition funding their research.
As for Copyright being only 300 years, you didn't read the Wikipedia article (I'm sure that's all the research you've actually done on this) far enough: One of the earliest copyright disputes reputedly took place in 557 A.D. between Abbot Finnian of Moville and St. Columba over St. Columba's copying of a Psalter belonging to an Abbot. The dispute over ownership of the copy led to the Battle of Cúl Dreimhne (also known as the Battle of Cooldrumman), in which 3,000 men were killed.
I'm not trying to change your mind - It's clear that you'd rather get the pitchforks and torches when it comes to IP, but at least cite support for your position or do some basic digging before you go a'lynchin'.
And calling the guy stupid because he disagrees with you? Glad we're not trying to engage in intelligent discourse and instead are devolving into 3rd grade playground debates. Impressive way to make your point, douche.
-p-
holy crap. All this time I thought I just never learned to type. I never connected it to our first computer (the Atari 400). World... crashing....down.....oi.
What everyone misses is that the DMCA, for everyday people doing the right thing(TM), is not that bad.
It is pretty explicit in Sec. 1201(c)
"(c) Other Rights, Etc., Not Affected.--(1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title."
You can make your own.
I'm calling you out - what exactly did I say to challenge the legal position outside of any remarks about its defenders?
Fact: I didn't. I even prefaced my original post with the "opinion itself is not a troll"
I may have attacked its followers as fanatics because they post lists and list of links to materials about it to every legal story on slashdot, and again, you aren't doing much to change my thoughts on that, but I haven't challenged the theory itself; I have no basis to since I've done very little research on the subject other than generally familiarize myself with it.
So even though I thought we were done with this four days ago, I invite you to quote one of my posts to show where exactly I challenged the validity of the legal theory itself. I promise, you won't find it.
FFS man, L2ReadingComprehension.
yeah, actually my point was:
Because every time there is an article on slashdot about a trial, people repeatedly post links to the whole "jury is more powerful than the president" and "no judge should be able to overturn a jury's verdict." While the opinion itself is not a troll, the constant linking to what could be construed as a fanatic viewpoint is.
Add your responses and QED. I never said your opinion was wrong or not legally correct, but you freaking the f out comes across as fanaticism. My point stands, and you - yes YOU, feel free to take this personally - have only proven my point. I'm not backing down or away from that.
oooooook. Again, I never said that it "didn't sound right." I said the way it's supporters came across was as fanatics. Your borderline irrational posts aren't helping, regardless of the validity and legal support you may have.
And I never attacked your character. You took my response that the viewpoint can be viewed as fanaticism way too personally. Take a deep breath, step away from the computer, and chill the hell out.
You can post citations all you want, but you're no better than someone citing the bible out of context. Your Sullivan quote is entirely dicta, and FYI, I read the S.Ct. opinion and the cases it cites.
I'm not disputing it as not sounding right, I'm pointing out that people are fanatic about the whole "jury is the most powerful thing in the US" viewpoint. That you cite random buts from cases not dealing with the point at issue (Sullivan was about a constitutionally deficient jury instruction) only reinforces my view of your fanaticism.
No, I understood your viewpoint, but the reasoning is that one begets the other, i.e., the thinking is that because judges will void contracts at the drop of a hat, EULAs aren't enforceable, both of which are wholly untrue.
Grond, I totally <3 you. NYCL gets a little preachy, so it's nice to see a level-headed, knows-what-(s?)he's-talking-about attorney on here. *hugs*
Because every time there is an article on slashdot about a trial, people repeatedly post links to the whole "jury is more powerful than the president" and "no judge should be able to overturn a jury's verdict." While the opinion itself is not a troll, the constant linking to what could be construed as a fanatic viewpoint is.
Wow - his mother, an attorney told him to lie in response to a discovery request? Nice violation there of the ethics code (see Rule 3.3 and 3.4). I hope she didn't want to be an attorney for much longer because the BBO does not take that lightly.
And sadly you remain buried at 2 while the incorrect "a judge will void a EULA" floats to the top at 5.
Dear anti-EULA crowd, IAAL, EULAs and click-wraps are enforceable. Go look up Pro-CD, go look up Hill v. Gateway for proof. I have yet to see the support for the "EULAs are not enforceable" that is always posted to slashdot and always modded as informative. Show me an appellate case that says otherwise and I'll change my tune.
Till then, don't get your legal advice from slashdot.
How can someone argue copyright is unconstitutional when it's in Article I, Section 8??
The salary equation is simple: YourSalary = HowMuchMoneyDoYouGenerateFor(SomeoneElse).
Doctors and Lawyers make a lot because they make hospitals and firms a lot more (and btw, I'm an attorney). However, district attorneys don't make much because they don't make the government money putting criminals away. General family practitioners are also usually lowest on the doctor pay scale because they don't tend to make a lot for their offices (they aren't performing expensive operations). Teachers don't make anyone money, so usually they get paid crap, unless they are prestigious professors that can presumably generate a lot of money for a college through increased tuition, enrollment, or other factors. Even then, their salary is rarely astronomical compared to doctors and lawyers in private practice.
Financiers on Wall Street make tons because they make investors tons more - I knew a guy that had a salary of $250k, but his bonus was $500k (in like 2005) because it was a drop in the bucket compared to what he was generating for the firm he worked for. While some may argue it is the skillset that reflects the salary, my equation is more real-world. Look at a Wall Street investor with three years experience versus a teacher of say 15 years. The investor has some experience, but is still learning the ropes in some respects while the teacher is quite experienced. Yet the investor is going to make more money because he can make other people more money. Experience or specialization doesn't have that much do with it.
Same thoughts for stars and athletes. People go to theaters/stadiums presumably to see the actors/athletes, which in turn make movie studios/sports teams lots of money. Then the stars/athletes can in turn demand more. It's a two-way street though. Actors could demand all they want, but if the studios didn't agree to it, they wouldn't be paid so much. Studios agree because they see it as a way to increase their revenue.
Soldiers don't make anyone money, so they aren't paid much, despite the clear risks they take and how they put their life on the line