Congress does not define "ordinary skill in the art", Congress made that a requirement in the statute. Courts and juries decide what this hypothetical person looks like based on testimony from experts like Professor Ullman.
Naturally, part of this conclusion is informed by what they guy in the Patent Office thought "ordinary skill" in his field was. Judges are juries basically only have the opinion one "expert" that isn't being offered in the interests of one side or the other -- the faceless patent examiner who is not present in the court case, but who the jury knows allowed the patent. Naturally, absent a darn good reason, juries figure this guy was probably right. (First juries are instructed that patents are presumed valid unless proven invalid by clear and convincing evidence, second, they know the experts offering opinions are being paid by the party offering the testimony.)
Patents suffer no more from the lack of technical sophisitication than a lot of other areas. Think about the breast implant litigation, or toxic waste litigation or other things. Or for that matter, the trial of someone involved in obscure financial transactions.
He both attacks current patent office practice as being not expert enough, and then attacks the court system as being too expensive and risky. His solution, a public opposition stage in the patent and trademark office would pretty much guarantee that only large corporations get patents. After all, if you are a little guy, and IBM, Motorola, Intel... all jump in to oppose your patent, do you have THAT much money?
Oh, there are reexamination proccedings as it is. You can send your prior art to the patent office to have the patent reconsidered after it has been issued. The patent office pretty much always decides it was right the first time. How would the pre-issuance opposition process be different except to make it more expensive and uncertain like the court system?
And what's so special about software patents and the businesses that might infringe them that they get a pass on having to be put before twelve ordinary people for a fair trial like everything else in America? Isn't the "uncertainty" point just an oblique attack on the jury trial? How else is a democracy supposed to resolve disputes?
Businesses take risk, deal with uncertainty (including patents), and when they do well, get rich. That's another part of the American way. Why not just let that work?
Please don't confuse the INVENTION with the PRODUCT. If I invent a way of producing light by placing a filament in a glass vacuum bulb and running electric current through it, let's call that the invention. If I decide I am going to have a 1" socket, set it to operate with 1 amp of current at 120 volts, put some frosting on the glass to reduce glare, that's a product.
It is entirely possible, in fact likely, that the patents covering RDRAM are broader than the spec for the particular memory standard. The patent is written to give rights to invention, it is the inventor and/or his company that make a product and keep competitors from doing a almost-the-same knockoff. If you want to use their invention, in whatever form it may take, pay the piper. It's only fair after all.
Actually, the Constitution is reasonably geared for it in the right circumstances.
ARTICLE VI.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; AND ALL TREATIES made, or which shall be made under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Treaties get a lot of slack vis-a-vis the Constitution. Mind you, the procedural roadblocks to treaties are quite substantial, such as Senate approval. On the other hand, we have a lot of treaties that have been signed by our President that the Senate never gets around to approving, but the executive branch lives by as a matter of course.
Traditionally, the Supreme Court has allowed broad activity by the government and its agents without direction from Congress when the scope of the activity is perceived as narrow. Initially, when ARPA was kicking this football game off, I am sure everyone considered it the most esoteric, irrelevant piece of the universe, whereupon nobody worried about it. You just make technical decisions and let it fly.
The technical decisions have non-technical consequences when the system expands exponentially in relevance, scope, and power. Although ICANN is probably not perceived as being as important as the FCC at this point, the time will come when it is perceived as MORE important than the FCC. Certainly as Froomkin recognizes, a body that is making decisions about people's substantive rights will have come into being and developed ways of handling those decisions without any guidance, delegation or even consideration by Congress.
Rather than nationalize the problems, the tendency has been to try to internationalize them so that the technical nightmare of root getting split is never raised by the need of the rest of the world to not be dominated by the US. Of course, this internationalization is not supervised by our government, or any that I can tell.
A lot worse could happen than the US Government continuing to ignore the situation. There is a reason that the Internet defeated Microsoft's initial business model executed as a closed network. I can't see how anything the government would do that would be more formal would do anything except choke the net in red tape.
In general, there are steps to this process that are manadatory, so make sure you are ready for them.
First, make sure that you read the Oath or Declaration that accompanies the application. You are going to be asked to sign something under oath, so if you aren't satisfied that it is true -- don't do it. The better you can articulate your reasons, the better you can deal with charges that you are not living up to your end of the patent assignment agreement. The attorney that is sending you the application should want to spend time with you explaining all the duties you have, and all the legal requirements of the application you are reviewing.
Second, remember to send the attorneys all of the prior art you are aware of. You are required to do that, so doing it can't be against your agreement. More prior art can result in narrower claims, but a stronger patent.
Third, if this is a former employer, make sure that you find out how you will be paid for your time. One reasonable approach is to try to get them agree to pay your normal consulting rate for the time you spend on this matter.
If the DCMA is unconstitutional then overruling it is his job -- it is the role of the courts to make sure that Congress stays within the powers that it was granted in the constitution.
It is not Judge Kaplan's job to decide whether he thinks what Congress did was a good idea or good policy. Congress was elected precisely to decide what public policies are good ideas, and which ones are bad ideas, as long as they stay within the limits of the powers the constitution gave them.
Obviously, Judge Kaplan thought that Congress had stayed within the lines, and wasn't going to second guess Congress on the wisdom of the law once he reached that conclusion.
Actually, you get to choose how to express yourself. That's settled (in general).
Supreme Court case: Hippie wants to have "Fuck the Draft" on his T-shirt. Argument of the government was that he didn't have to use the first word where little kiddies could read it. Government Loses. Cohen v. California (1971).
Please let's not confuse SPEECH with EXPRESSION. Burning a flag is not speech. It is expression, and as the Supreme Court says, First-Amendment protected. Why setting a flag on fire would be expression, but setting yourself on fire would not is lost on me.
The following is the statute that directly addresses recusal. Mind you, the judges also have their own judicial code of ethical conduct which largely, covers much the same ground. Subsection (a)(2) seems to be the most applicable here. Whether you were tangentially involved with a something at an earlier stage can cause some dust-ups. Justice Rehnquist had a bit of a dust-up regarding his non-recusal in a case where he had testified before Congress on that subject matter, but argued he hadn't been really involved.
Sec. 455. Disqualification of justice, judge, or magistrate
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material witness in the proceeding.
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
(d) For the purposes of this section the following words or phrases shall have the meaning indicated:
(1) ''proceeding'' includes pretrial, trial, appellate review, or other stages of litigation;
(2) the degree of relationship is calculated according to the civil law system;
(3) ''fiduciary'' includes such relationships as executor, administrator, trustee, and guardian;
(4) ''financial interest'' means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
(i) Ownership in a mutual or common investment fund that holds securities is not a ''financial interest'' in such securities unless the judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a ''financial interest'' in securities held by the organization;
(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a ''financial interest'' in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) Ownership of government securities is a ''financial interest'' in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
(e) No justice, judge, or magistrate shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.
(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.
An injunction is one of the ordinary common law remedies for trespass. Basically, you can get money for the past trespasses, and an order for the miscreant to STAY OUT.
I really don't want to try to figure out what STATE law would be covering it if the astronaut died. You can look at (some) federal law on the subject.
As you can see, they definitely get involuntary manslaughter. Maybe even murder depending on whether you think a cracker is engaging in "espionage" or perhaps "sabotage."
Since the astronaut is on the job up there as a federal employee, the feds can come after him. (51 U.S.C. 1114).
First, the two options are disparate because this is a preliminary injunction that is being reviewed. Basically, the trial court was asked to make an interim emergency decision. Such decisions are immediately appealable even though the case is nowhere near the final trial.
The main point is that the government is trying to regulate obscene speech in this case. As a policy matter, it isn't clear why speech dealing with sexual matter directed towards gratification of baser instincts gets hammered so badly in First Amendment law, but that's the way things have shaken out.
How do you know what's obscene? You apply local community standards. Now, if you have strip joint, where the local community is is pretty clear. On the net, of course, it's anything but. That's a pretty tough issue that is going to be essential to any trial. In meatspace dealings, you can count on the fact that the jurors are locals, so they can apply what they think the local standard is. Getting them to apply something other than their intuitive evaluation ought to be a trick. (One Supreme Court Justice said he couldn't define obscentity, but he knew it when he saw it. At least the jurors were getting the same opportunity, eh?)
The whole problem there is, at least the owner of a strip joint has a chance in hell of knowing that the other (local) people in the area think. He has a fighting chance at least. Not so on the in (distributed population) cases like this. We are one nation, but we've tolerated a law that had obscenity meaning different things in California and Tennessee. Maybe (too much to hope) this case would give the courts a chance to make law that tried to recognize that this is ONE country. (Gotta ignore the international thing for now -- getting greedy is the fastest way to lose.)
The Supreme Court shouldn't be hearing this one yet, if ever. If the government wants to insist on its trial, then let it have it. Let it lose. Congress, by repeatedly overreaching to regulate speech on the net is writing the law against itself case by case.
It is sort of entertaining that a new stupidity by Congress (speech regulation on the net) smacks into an old stupidity of the Supreme Court (local standards for Constitutional decisions) here. Maybe the Supreme Court wakes up, and something good comes of this.
In model penal code states, all that is needed for attempt is that a substantial step be taken toward committing the crime with the intent to commit that crime. See Illinois v. Cosby. Writing a 300 page plan and buying the gun might well satisfy the substantial step requirement for attempt somewhere.
Let's get real, they have to let you get one shot off at your intended victim before it is attempted murder? I don't think so...
For better or worse, we naturally fear the unknown. If a police officer sees a teenage boy calling a girl a slut in a strip mall, he feels he knows what is going on from the tone of voice, the body language, etc. Does he have the same gut feel for something he sees on the Internet?
Net distributed messages are often less nuanced, either because of the limitations of the medium (my straight text here), the skill of the person using it (ditto), or the ability of the recipient to detect those nuances if properly conveyed, or decrypt them if not.
The one thing that the police can do, is show what was said with MUCH better documentation. No longer is it a he-said/she-said deal. Also, libel and slander (defamation) is one of the areas where the speech itself is the issue, you don't have to look for proof of any other real-world activity. (Example: If someone hears me wishing to bump off my old man, they are going to have to investigate as to whether I took any real-world concrete steps toward such a goal to arrest me. On the other hand, if they see my internet site calling a physician a malpracticing quack, that's it, they're done.)
For better or worse, the authorities are out there, and looking at the activity. I live in a major city, and I can tell you that the cops like their teenage-girl-on-the-internet stings. They get a lot of play in the papers and on the evening TV news. (Your police ARE protecting your children on the Internet, yes they are!) I think it is our job to educate them to have as good a feel for what is really going on when they see an IRC channel as when they are on a street corner in the bad part of town.
Trying to post big STAY OUT signs, and scare the authorities away from pursuing their normal activities on the Internet is not going to keep the authorities out, it is just going to make them come in that much harder and that much less informed.
That ignores the "dilution" problem. I don't think Mattel would have a hard time showing that "Barbie" is a famous mark (the kind of mark protected by dilution law). That's the kind of thing that keeps people from starting businesses that are like Coca-Cola brand porn. Even if nobody believes it is the same source as the soft drink, trust me, you get fried under dilution law.
And registering the mark won't be easy either. If the trademark office doesn't kill it, you have to believe it will face one expensive opposition from Mattel.
I have a hard time thinking that if the blond-haired dolls had never existed, that the web site's name would have been chosen to be what it is. Who do you think is supposed to be capturing the value of that name?
In the patent referenced above, Konrad claims his first patent application was on January 8, 1993. Therefore, a written publication needs to have been published before January 8, 1992 for him to be barred just based on publications.
Now, the WWW was first used in late 1991 as I recall, so it is prior art. Does it kill the patent? The truth is, he was getting pretty close on the HTML line. Mind you, other non-WWW prior art is probably out there, but the date he has doesn't necessarily make things completely frivilous as a 1996 priority date would.
A few isolated points, that don't constitute a legal opinion...
Patent licenses are interpreted according to state law. I have no idea what state's law applies here, so let's look at 'generic' law.
Licenses are usually contracts. A contract requires an offer and an acceptance, and 'consideration' by both parties. Here, the patentee isn't getting anything concrete, but he is getting a forbearance from the licensee. The problem I see is that the forbearance is not to violate the terms of the license, probably not consideration in most states.
Estoppel is still a doctrine that can apply. The Federal Circuit, the main court for interpreting patent law does have its own law regarding estoppel. All estoppel is premised not in the idea of contract law, but of equity. In patent cases, estoppel requires that the conduct of the patentee induce reasonable reliance in the accused infringer, to the detriment of that infringer. (For an important case in this area, see A. C. Aukerman Co. v. R. L. Chaides Construction Co., 960 F.2d 1020 (Fed. Cir. 1992)(en banc)). That would seem to fit here.
35 U.S.C. 285 also allows courts to assess the costs of litigation, including attorneys fees to the prevailing party in a patent case if the case is exceptional. Lacking an objectively reasonable basis can be a basis for finding a case exceptional.
#define DISCLAIMER
#ifdef DISCLAIMER
As with all things legal, YMMV, which means getting a legal opinion on your own circumstances from a qualified professional if you really have something on the line.
Hey, the law, and the courts exist to protect you even when it might not be popular. If 90% of the people want to take your land to build a highway, a park, or an airport, they can. But the rule is they have to pay.
They could harvest your organs for transplant and give them to 20 different people who need organs. Let's let the 21 of your vote. I bet you don't get even 5% of the vote there. The law shouldn't protect you I guess.
The law gives a person, even someone with an unpopular position, a remedy short of buying a shotgun and going after what makes them mad. The latter option doesn't look so hot to me, but maybe it does to you.
The title is just wrong. The Supreme Court decision was on trade dress lawsuits, a variety of trademark law. Design patents are provided for under the patent laws. Actually, the decision will make design patents more valuable because it will provide a manufacturer 14 years to establish secondary meaning in a product design, as long as the design is not primarily the result of functional necessity.
Well, this was a great result for patent lawyers, but I am not sure it was a good result for product makers. The Supreme Court basically told companies like Apple that they have to go get design patents to cover themselves until they can gather evidence of secondary meaning. (That is, proof that consumers thought that the design of the product itself was an indication of origin.)
Scalia wrote a law-and-economics opinion. I don't think the record below was replete with evidence of what the probability of a trade dress suit against a product design had been since the Two Pesos case, or what producers had been scared off from entering markets because of the Two Pesos case, or whether the suits had eventually been found to be meritless, or any of that. It was all what Scalia surmised was the situation.
Neither was the decision based on what Congress thought it was doing in passing the law. The Supreme Court, 9-0, just decided it wanted to make it up as it went along.
So companies like Apple have to apply for their design patents. Is "patent pending" going to be any less of a deterrant than the old trade dress suit threat? Or does it just force spending money. I think the latter would be true.
Design patents take time to issue. If Apple had applied for one, it likely would not have issued before eMachines started to copy. Apple then could have tailored its design elements that were claimed to target the eMachines product. Is a patent issuing from ambush any less defined for a competitor than a trade dress? I don't think by very much.
I guess the Supreme Court decided maybe it didn't like the Taco Cabana case, and wanted to limit it.
Heaven only knows what the Supreme Court would do with web-site look-and-feel.
(The Two Pesos v. Taco Cabana case said that trade dress could have inherent distincitiveness, and not need to prove that a trade dress had achieved source-identifying significance in consumers' minds. The case dealt with a lawsuit between a couple of Mexican restaurants in Texas, and the copying of a festive ethnic decorating scheme.)
The "elastic clause" expands the other powers, but you still need one to attach it to. Congress could say it was necessary and proper to protect copyrights, and it would probably fly, but isn't as dead-bang a winner as the commerce clause, IMO.
Enumerated Powers and Fundamental Rights - You are absolutely right. There are fundamental rights in the Constitution in addition to Congress' enumerated powers. Congress has the power to collect taxes. The Constitution protects against racial discrimination in laws. The power to collect taxes is subject to not just taxing a racial minority.
The Courts - Yes, we have an independent judiciary (among other checks and balances) to prevent any branch or combination of branches from exerting too much power. On the other hand, the Supreme Court only takes the political branches on when it sees fundamental constutional rights at stake. Even then, it does everything it can do dodge such a fight. The Court does not want to oppose self-government unless it really, really has to.
Constitutional Basis for DCMA - You are also right that the Founding Fathers were suspicious, and only gave Congress enumerated powers. To pass a law Congress has to find a power that allows that particular law, otherwise, no go. The patent and copyright clause limits Congress to giving rights for a limited time. The DCMA section on copyright protection systems is not for a limited time. Can't be the copyright clause. The Commerce Clause is pretty much Congress' broadest power, and does cover this, so I'd guess that would be the basis for what enumerated power Congress was asserting. Congress' powers related to trade secrets, such as the Economic Espionage Act, are Commerce Clause laws.
That said, the Constitution does not outlaw unfair things per se. It isn't to promote liberty and justice -- it establishes procedures for government. There are certain, and very few, substantive floors it sets on democratic principles. Free Speech is among them, though I don't think anyone REALLY knows that the first amendment means.
If I'd written the law, I'd have written it to say that if you decode the data and do unauthorized things with it, or distribute decoders that allow/facilitate or are trivially modifiable to allow/facilitate misuse, you are toast. Actually, on that basis DeCSS itself is toast unfortunately, because (as I understand it) DeCSS deposits the decoded data on disk without restriction or post-viewing deletion. On the other hand, fixing it to avoid my rule wouldn't be hard. Fixing the code to avoid the "you have to be licensed" rule is impossible.
Also, we all might be worrying too much about the DCMA. After all, no court of appeal, much less the Supreme Court, has spoken on the DeCSS case yet.
Well, sure. Sony v. Universal Picture Studios is important. It was a very criticized case at the time, ESPECIALLY FOR IT'S THEORY REGARDING FAIR USE. Personally, I think the "substantial non-infringing use" analogy was the stronger basis, legally.
#ifdef FAIR USE
17 USC 107, Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
#endif
The Supreme Court used that balancing test to defeat the copyright holders. This was the industry's reaction to that case. It was crafted specifically to overturn the case. It is supposed to be inconsistent with the case.
Regarding economic value as a touchstone, you have to ask yourself what the Constitution means there. Does it mean that: "If some portion of a statute does not advance the sciences and the useful arts it is unconstitutional", or does it mean "Congress has to sincerely believe that it is advancing the sciences and useful arts." I think that it has to be the latter... who is the Supreme Court to decide whether a statute is advancing those things?
What really swallows up a bunch is the "necessary and proper" clause. Congress not only can do things in its listed powers, it can do anything that is reasonably connected to advancing those exercises of power. Hence, the DCMA. (Whose likely valid constitutional basis is the Commerce Clause.)
The courts have always had the "fair use" part of the statute to use so that they never really had to decide between copyrights and the first amendment. They could avoid the constitutional issue by using the "fair use" part of the statute. That day may well be gone. The good news is that this is a pretty first-amendment-friendly Supreme Court.
It is a really scary statute. The only reason it is flying is that 100% of the hardware manufacturers are on board with 100% of the copyright holders. They both make money as long as "authorized" means "part of the cartel to divide up consumers' money."
See the statute isn't fair. It isn't SUPPOSED to be fair. And it isn't clear that the Constitution requires it to be.
But the vast majority of people are sheep. If those who understand what is going on don't get large numbers of ordinary people motivated to protest, it will continue. Since the vast majority of people are reasonably happy with the price of DVD's and players, It will probably continue.
Congress does not revisit patent duration very often. It was set at 14 years from date of issue in 1790, upped to 17 years in 1861, and then changed to 20 years from the date of filing (for international conformity) in 1994. That last change made little practical change in the duration of a patent. That looks like they revisit the issue about oh, say, once every 100 years, give or take.
Congress wants a general purpose system to handle patents. That's probably a good idea for the same reasons that Congress legislating specs for encryption chips (HELLO CLIPPER!) is scary.
Congress could do the same thing they do with the environment, telecommunications, labor relations, etc, etc, and punt. Give the job to the PTO to figure out how long patents should last. If you don't think the PTO is doing a good job of figuring out WHETHER to give a patent, imagine how scary letting them decide HOW LONG the patent lasts also will be. (Oh, we'll give one click 100 years!)
Sure, the system is not perfect. On the other hand, the system has been working pretty well for through a couple of hundred years of the fastest period of technological change in the history of mankind, in the country that is likely the most significant engine for that change in that period.
Even if Bezos is right, that is, we now have enough hindsight to change the system with respect to some category of patents, like software, you have to have a general system for dealing with the technology you haven't seen yet. I'm not sure I'm comfortable with Congress passing a software/business method patent law now, and ignoring it for 100 years. (How bad would CLIPPER have been after 100 years? Pretty bad.)
Slashdot Mirror
Congress does not define "ordinary skill in the art", Congress made that a requirement in the statute. Courts and juries decide what this hypothetical person looks like based on testimony from experts like Professor Ullman.
Naturally, part of this conclusion is informed by what they guy in the Patent Office thought "ordinary skill" in his field was. Judges are juries basically only have the opinion one "expert" that isn't being offered in the interests of one side or the other -- the faceless patent examiner who is not present in the court case, but who the jury knows allowed the patent. Naturally, absent a darn good reason, juries figure this guy was probably right. (First juries are instructed that patents are presumed valid unless proven invalid by clear and convincing evidence, second, they know the experts offering opinions are being paid by the party offering the testimony.)
Patents suffer no more from the lack of technical sophisitication than a lot of other areas. Think about the breast implant litigation, or toxic waste litigation or other things. Or for that matter, the trial of someone involved in obscure financial transactions.
He both attacks current patent office practice as being not expert enough, and then attacks the court system as being too expensive and risky. His solution, a public opposition stage in the patent and trademark office would pretty much guarantee that only large corporations get patents. After all, if you are a little guy, and IBM, Motorola, Intel ... all jump in to oppose your patent, do you have THAT much money?
Oh, there are reexamination proccedings as it is. You can send your prior art to the patent office to have the patent reconsidered after it has been issued. The patent office pretty much always decides it was right the first time. How would the pre-issuance opposition process be different except to make it more expensive and uncertain like the court system?
And what's so special about software patents and the businesses that might infringe them that they get a pass on having to be put before twelve ordinary people for a fair trial like everything else in America? Isn't the "uncertainty" point just an oblique attack on the jury trial? How else is a democracy supposed to resolve disputes?
Businesses take risk, deal with uncertainty (including patents), and when they do well, get rich. That's another part of the American way. Why not just let that work?
Please don't confuse the INVENTION with the PRODUCT. If I invent a way of producing light by placing a filament in a glass vacuum bulb and running electric current through it, let's call that the invention. If I decide I am going to have a 1" socket, set it to operate with 1 amp of current at 120 volts, put some frosting on the glass to reduce glare, that's a product. It is entirely possible, in fact likely, that the patents covering RDRAM are broader than the spec for the particular memory standard. The patent is written to give rights to invention, it is the inventor and/or his company that make a product and keep competitors from doing a almost-the-same knockoff. If you want to use their invention, in whatever form it may take, pay the piper. It's only fair after all.
ARTICLE VI.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; AND ALL TREATIES made, or which shall be made under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Treaties get a lot of slack vis-a-vis the Constitution. Mind you, the procedural roadblocks to treaties are quite substantial, such as Senate approval. On the other hand, we have a lot of treaties that have been signed by our President that the Senate never gets around to approving, but the executive branch lives by as a matter of course.
The technical decisions have non-technical consequences when the system expands exponentially in relevance, scope, and power. Although ICANN is probably not perceived as being as important as the FCC at this point, the time will come when it is perceived as MORE important than the FCC. Certainly as Froomkin recognizes, a body that is making decisions about people's substantive rights will have come into being and developed ways of handling those decisions without any guidance, delegation or even consideration by Congress.
Rather than nationalize the problems, the tendency has been to try to internationalize them so that the technical nightmare of root getting split is never raised by the need of the rest of the world to not be dominated by the US. Of course, this internationalization is not supervised by our government, or any that I can tell.
A lot worse could happen than the US Government continuing to ignore the situation. There is a reason that the Internet defeated Microsoft's initial business model executed as a closed network. I can't see how anything the government would do that would be more formal would do anything except choke the net in red tape.
First, make sure that you read the Oath or Declaration that accompanies the application. You are going to be asked to sign something under oath, so if you aren't satisfied that it is true -- don't do it. The better you can articulate your reasons, the better you can deal with charges that you are not living up to your end of the patent assignment agreement. The attorney that is sending you the application should want to spend time with you explaining all the duties you have, and all the legal requirements of the application you are reviewing.
Second, remember to send the attorneys all of the prior art you are aware of. You are required to do that, so doing it can't be against your agreement. More prior art can result in narrower claims, but a stronger patent.
Third, if this is a former employer, make sure that you find out how you will be paid for your time. One reasonable approach is to try to get them agree to pay your normal consulting rate for the time you spend on this matter.
Good Luck!
exclusive Right to their respective Writings
seems quite similar to
exclusive right to copy and distribute those motion pictures
And what else would someone use an exclusive right for except for economic gain?
If the DCMA is unconstitutional then overruling it is his job -- it is the role of the courts to make sure that Congress stays within the powers that it was granted in the constitution.
It is not Judge Kaplan's job to decide whether he thinks what Congress did was a good idea or good policy. Congress was elected precisely to decide what public policies are good ideas, and which ones are bad ideas, as long as they stay within the limits of the powers the constitution gave them.
Obviously, Judge Kaplan thought that Congress had stayed within the lines, and wasn't going to second guess Congress on the wisdom of the law once he reached that conclusion.
Actually, you get to choose how to express yourself. That's settled (in general).
Supreme Court case: Hippie wants to have "Fuck the Draft" on his T-shirt. Argument of the government was that he didn't have to use the first word where little kiddies could read it. Government Loses. Cohen v. California (1971).
Please let's not confuse SPEECH with EXPRESSION. Burning a flag is not speech. It is expression, and as the Supreme Court says, First-Amendment protected. Why setting a flag on fire would be expression, but setting yourself on fire would not is lost on me.
Sec. 455. Disqualification of justice, judge, or magistrate
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material witness in the proceeding.
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
(d) For the purposes of this section the following words or phrases shall have the meaning indicated:
(1) ''proceeding'' includes pretrial, trial, appellate review, or other stages of litigation;
(2) the degree of relationship is calculated according to the civil law system;
(3) ''fiduciary'' includes such relationships as executor, administrator, trustee, and guardian;
(4) ''financial interest'' means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
(i) Ownership in a mutual or common investment fund that holds securities is not a ''financial interest'' in such securities unless the judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a ''financial interest'' in securities held by the organization;
(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a ''financial interest'' in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) Ownership of government securities is a ''financial interest'' in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
(e) No justice, judge, or magistrate shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.
(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.
An injunction is one of the ordinary common law remedies for trespass. Basically, you can get money for the past trespasses, and an order for the miscreant to STAY OUT.
As you can see, they definitely get involuntary manslaughter. Maybe even murder depending on whether you think a cracker is engaging in "espionage" or perhaps "sabotage."
Since the astronaut is on the job up there as a federal employee, the feds can come after him. (51 U.S.C. 1114).
First, the two options are disparate because this is a preliminary injunction that is being reviewed. Basically, the trial court was asked to make an interim emergency decision. Such decisions are immediately appealable even though the case is nowhere near the final trial.
The main point is that the government is trying to regulate obscene speech in this case. As a policy matter, it isn't clear why speech dealing with sexual matter directed towards gratification of baser instincts gets hammered so badly in First Amendment law, but that's the way things have shaken out.
How do you know what's obscene? You apply local community standards. Now, if you have strip joint, where the local community is is pretty clear. On the net, of course, it's anything but. That's a pretty tough issue that is going to be essential to any trial. In meatspace dealings, you can count on the fact that the jurors are locals, so they can apply what they think the local standard is. Getting them to apply something other than their intuitive evaluation ought to be a trick. (One Supreme Court Justice said he couldn't define obscentity, but he knew it when he saw it. At least the jurors were getting the same opportunity, eh?)
The whole problem there is, at least the owner of a strip joint has a chance in hell of knowing that the other (local) people in the area think. He has a fighting chance at least. Not so on the in (distributed population) cases like this. We are one nation, but we've tolerated a law that had obscenity meaning different things in California and Tennessee. Maybe (too much to hope) this case would give the courts a chance to make law that tried to recognize that this is ONE country. (Gotta ignore the international thing for now -- getting greedy is the fastest way to lose.)
The Supreme Court shouldn't be hearing this one yet, if ever. If the government wants to insist on its trial, then let it have it. Let it lose. Congress, by repeatedly overreaching to regulate speech on the net is writing the law against itself case by case.
It is sort of entertaining that a new stupidity by Congress (speech regulation on the net) smacks into an old stupidity of the Supreme Court (local standards for Constitutional decisions) here. Maybe the Supreme Court wakes up, and something good comes of this.
Let's get real, they have to let you get one shot off at your intended victim before it is attempted murder? I don't think so...
For better or worse, we naturally fear the unknown. If a police officer sees a teenage boy calling a girl a slut in a strip mall, he feels he knows what is going on from the tone of voice, the body language, etc. Does he have the same gut feel for something he sees on the Internet?
Net distributed messages are often less nuanced, either because of the limitations of the medium (my straight text here), the skill of the person using it (ditto), or the ability of the recipient to detect those nuances if properly conveyed, or decrypt them if not.
The one thing that the police can do, is show what was said with MUCH better documentation. No longer is it a he-said/she-said deal. Also, libel and slander (defamation) is one of the areas where the speech itself is the issue, you don't have to look for proof of any other real-world activity. (Example: If someone hears me wishing to bump off my old man, they are going to have to investigate as to whether I took any real-world concrete steps toward such a goal to arrest me. On the other hand, if they see my internet site calling a physician a malpracticing quack, that's it, they're done.)
For better or worse, the authorities are out there, and looking at the activity. I live in a major city, and I can tell you that the cops like their teenage-girl-on-the-internet stings. They get a lot of play in the papers and on the evening TV news. (Your police ARE protecting your children on the Internet, yes they are!) I think it is our job to educate them to have as good a feel for what is really going on when they see an IRC channel as when they are on a street corner in the bad part of town.
Trying to post big STAY OUT signs, and scare the authorities away from pursuing their normal activities on the Internet is not going to keep the authorities out, it is just going to make them come in that much harder and that much less informed.
And registering the mark won't be easy either. If the trademark office doesn't kill it, you have to believe it will face one expensive opposition from Mattel.
I have a hard time thinking that if the blond-haired dolls had never existed, that the web site's name would have been chosen to be what it is. Who do you think is supposed to be capturing the value of that name?
Now, the WWW was first used in late 1991 as I recall, so it is prior art. Does it kill the patent? The truth is, he was getting pretty close on the HTML line. Mind you, other non-WWW prior art is probably out there, but the date he has doesn't necessarily make things completely frivilous as a 1996 priority date would.
Patent licenses are interpreted according to state law. I have no idea what state's law applies here, so let's look at 'generic' law.
Licenses are usually contracts. A contract requires an offer and an acceptance, and 'consideration' by both parties. Here, the patentee isn't getting anything concrete, but he is getting a forbearance from the licensee. The problem I see is that the forbearance is not to violate the terms of the license, probably not consideration in most states.
Estoppel is still a doctrine that can apply. The Federal Circuit, the main court for interpreting patent law does have its own law regarding estoppel. All estoppel is premised not in the idea of contract law, but of equity. In patent cases, estoppel requires that the conduct of the patentee induce reasonable reliance in the accused infringer, to the detriment of that infringer. (For an important case in this area, see A. C. Aukerman Co. v. R. L. Chaides Construction Co., 960 F.2d 1020 (Fed. Cir. 1992)(en banc)). That would seem to fit here.
35 U.S.C. 285 also allows courts to assess the costs of litigation, including attorneys fees to the prevailing party in a patent case if the case is exceptional. Lacking an objectively reasonable basis can be a basis for finding a case exceptional.
#define DISCLAIMER
#ifdef DISCLAIMER
As with all things legal, YMMV, which means getting a legal opinion on your own circumstances from a qualified professional if you really have something on the line.
#endif
Hey, the law, and the courts exist to protect you even when it might not be popular. If 90% of the people want to take your land to build a highway, a park, or an airport, they can. But the rule is they have to pay.
They could harvest your organs for transplant and give them to 20 different people who need organs. Let's let the 21 of your vote. I bet you don't get even 5% of the vote there. The law shouldn't protect you I guess.
The law gives a person, even someone with an unpopular position, a remedy short of buying a shotgun and going after what makes them mad. The latter option doesn't look so hot to me, but maybe it does to you.
The title is just wrong. The Supreme Court decision was on trade dress lawsuits, a variety of trademark law. Design patents are provided for under the patent laws. Actually, the decision will make design patents more valuable because it will provide a manufacturer 14 years to establish secondary meaning in a product design, as long as the design is not primarily the result of functional necessity.
Well, this was a great result for patent lawyers, but I am not sure it was a good result for product makers. The Supreme Court basically told companies like Apple that they have to go get design patents to cover themselves until they can gather evidence of secondary meaning. (That is, proof that consumers thought that the design of the product itself was an indication of origin.)
Scalia wrote a law-and-economics opinion. I don't think the record below was replete with evidence of what the probability of a trade dress suit against a product design had been since the Two Pesos case, or what producers had been scared off from entering markets because of the Two Pesos case, or whether the suits had eventually been found to be meritless, or any of that. It was all what Scalia surmised was the situation.
Neither was the decision based on what Congress thought it was doing in passing the law. The Supreme Court, 9-0, just decided it wanted to make it up as it went along.
So companies like Apple have to apply for their design patents. Is "patent pending" going to be any less of a deterrant than the old trade dress suit threat? Or does it just force spending money. I think the latter would be true.
Design patents take time to issue. If Apple had applied for one, it likely would not have issued before eMachines started to copy. Apple then could have tailored its design elements that were claimed to target the eMachines product. Is a patent issuing from ambush any less defined for a competitor than a trade dress? I don't think by very much.
I guess the Supreme Court decided maybe it didn't like the Taco Cabana case, and wanted to limit it.
Heaven only knows what the Supreme Court would do with web-site look-and-feel.
(The Two Pesos v. Taco Cabana case said that trade dress could have inherent distincitiveness, and not need to prove that a trade dress had achieved source-identifying significance in consumers' minds. The case dealt with a lawsuit between a couple of Mexican restaurants in Texas, and the copying of a festive ethnic decorating scheme.)
The "elastic clause" expands the other powers, but you still need one to attach it to. Congress could say it was necessary and proper to protect copyrights, and it would probably fly, but isn't as dead-bang a winner as the commerce clause, IMO.
I'd like to add an amplification or two.
Enumerated Powers and Fundamental Rights - You are absolutely right. There are fundamental rights in the Constitution in addition to Congress' enumerated powers. Congress has the power to collect taxes. The Constitution protects against racial discrimination in laws. The power to collect taxes is subject to not just taxing a racial minority.
The Courts - Yes, we have an independent judiciary (among other checks and balances) to prevent any branch or combination of branches from exerting too much power. On the other hand, the Supreme Court only takes the political branches on when it sees fundamental constutional rights at stake. Even then, it does everything it can do dodge such a fight. The Court does not want to oppose self-government unless it really, really has to.
Constitutional Basis for DCMA - You are also right that the Founding Fathers were suspicious, and only gave Congress enumerated powers. To pass a law Congress has to find a power that allows that particular law, otherwise, no go. The patent and copyright clause limits Congress to giving rights for a limited time. The DCMA section on copyright protection systems is not for a limited time. Can't be the copyright clause. The Commerce Clause is pretty much Congress' broadest power, and does cover this, so I'd guess that would be the basis for what enumerated power Congress was asserting. Congress' powers related to trade secrets, such as the Economic Espionage Act, are Commerce Clause laws.
That said, the Constitution does not outlaw unfair things per se. It isn't to promote liberty and justice -- it establishes procedures for government. There are certain, and very few, substantive floors it sets on democratic principles. Free Speech is among them, though I don't think anyone REALLY knows that the first amendment means.
If I'd written the law, I'd have written it to say that if you decode the data and do unauthorized things with it, or distribute decoders that allow/facilitate or are trivially modifiable to allow/facilitate misuse, you are toast. Actually, on that basis DeCSS itself is toast unfortunately, because (as I understand it) DeCSS deposits the decoded data on disk without restriction or post-viewing deletion. On the other hand, fixing it to avoid my rule wouldn't be hard. Fixing the code to avoid the "you have to be licensed" rule is impossible.
Also, we all might be worrying too much about the DCMA. After all, no court of appeal, much less the Supreme Court, has spoken on the DeCSS case yet.
#ifdef FAIR USE
17 USC 107, Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
#endif
The Supreme Court used that balancing test to defeat the copyright holders. This was the industry's reaction to that case. It was crafted specifically to overturn the case. It is supposed to be inconsistent with the case.
Regarding economic value as a touchstone, you have to ask yourself what the Constitution means there. Does it mean that: "If some portion of a statute does not advance the sciences and the useful arts it is unconstitutional", or does it mean "Congress has to sincerely believe that it is advancing the sciences and useful arts." I think that it has to be the latter... who is the Supreme Court to decide whether a statute is advancing those things?
What really swallows up a bunch is the "necessary and proper" clause. Congress not only can do things in its listed powers, it can do anything that is reasonably connected to advancing those exercises of power. Hence, the DCMA. (Whose likely valid constitutional basis is the Commerce Clause.)
The courts have always had the "fair use" part of the statute to use so that they never really had to decide between copyrights and the first amendment. They could avoid the constitutional issue by using the "fair use" part of the statute. That day may well be gone. The good news is that this is a pretty first-amendment-friendly Supreme Court.
It is a really scary statute. The only reason it is flying is that 100% of the hardware manufacturers are on board with 100% of the copyright holders. They both make money as long as "authorized" means "part of the cartel to divide up consumers' money."
See the statute isn't fair. It isn't SUPPOSED to be fair. And it isn't clear that the Constitution requires it to be.
But the vast majority of people are sheep. If those who understand what is going on don't get large numbers of ordinary people motivated to protest, it will continue. Since the vast majority of people are reasonably happy with the price of DVD's and players, It will probably continue.
Congress does not revisit patent duration very often. It was set at 14 years from date of issue in 1790, upped to 17 years in 1861, and then changed to 20 years from the date of filing (for international conformity) in 1994. That last change made little practical change in the duration of a patent. That looks like they revisit the issue about oh, say, once every 100 years, give or take.
Congress wants a general purpose system to handle patents. That's probably a good idea for the same reasons that Congress legislating specs for encryption chips (HELLO CLIPPER!) is scary.
Congress could do the same thing they do with the environment, telecommunications, labor relations, etc, etc, and punt. Give the job to the PTO to figure out how long patents should last. If you don't think the PTO is doing a good job of figuring out WHETHER to give a patent, imagine how scary letting them decide HOW LONG the patent lasts also will be. (Oh, we'll give one click 100 years!)
Sure, the system is not perfect. On the other hand, the system has been working pretty well for through a couple of hundred years of the fastest period of technological change in the history of mankind, in the country that is likely the most significant engine for that change in that period.
Even if Bezos is right, that is, we now have enough hindsight to change the system with respect to some category of patents, like software, you have to have a general system for dealing with the technology you haven't seen yet. I'm not sure I'm comfortable with Congress passing a software/business method patent law now, and ignoring it for 100 years. (How bad would CLIPPER have been after 100 years? Pretty bad.)