This case is about 35 U.S.C. Section 101, patentable subject matter. It is not about inventive step, obviousness, written description. etc.
http://thepriorart.typepad.com/files/order.prometheus.pdf (the opinion of the trial court)
"After careful consideration of the pleadings and relevant exhibits presented by the parties, the oral argument presented at the
hearing, and for the reasons set forth below, this Court GRANTS Defendantsâ(TM) motion for summary judgment of patent invalidity thereby invalidating the patents-in-suit as violative of 35 U.S.C. Â 101."
So, 35 U.S.C. Section 101 reads:
"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title."
This has usually been interpreted as you can't patent gravity, but you can patent a pile driver. Please note, even a trivial expression of gravity is patentable subject matter. You still have to overcome novelty and obviousness. But you get in the door. The key is whether the patented thing is made by man or not. You can patent a living organism if you made it. That is Diamond v Chakrabarty. However, if you engage in some trivial activity, such as cross-breeding plants but not changing the DNA, then that is obvious. In re Pod-ners (http://www.cafc.uscourts.gov/opinions/08-1492.pdf)
A means plus function claim. (35 U.S.C. Section 112, Paragraph 6), is not plain English.
For each means for performing the function, you have to go back to the specification, and identify the specific structure that performs that function and then plug it in to the "means for" part. Determining what details have to be included and not is the subject of quite a bit of litigation.
Then the claim covers that plus its equivalents as known to those of ordinary skill in the art as of the time of the invention.
That is probably the least simple claim in the patent, though I have not looked.
It takes 4 justices to grant certiorari to a case, except in certain capital punishment circumstances. http://www.law.cornell.edu/wex/index.php/Certiorari Therefore, we know that at most 3 justices were interested in hearing the case. None of them felt strongly enough about this to write a dissent from the denial of a grant of certiorari. That has happened in the anti-terrorism context, with Justice Breyer writing and Souter and Ginsburg joining. URL:www.supremecourtus.gov/opinions/06pdf/06-1195Breyer.pdf>. President Bush has appointed two out of 9. A full four, enough to grant certiorari, are liberal and often at odds with the president.
The idea that the firm that won the trial on the Exxon Valdez case (Faegre & Benson)http://www.faegre.com/articles/article_751.aspx is afraid of jury trials is silly. They are just trying to save the judge time, and the client money.
Anti-trust is historically less political than other areas, such as civil rights or constitutional law. So while it was the classical conservative 5 this time, it was by no means a lock.
There are some subtle points that need to be considered. Just because someone gets to call President Bush to task, does not mean it is anyone who walks in the door of a Court. So, just walking in the front door, and saying "I don't trust the president, let me run through any and all files of the entire government without limitation" should not result in immediate access to the country's greatest secrets. Like him or not, President Bush was the person elected to protect them, not the man off the street. The rest of the world did not elect President Bush, and in fact, he was elected to promote the interests of the United States against their interests. Al Qaeda does not like President Bush not telling them where all his spies are. They are represenative of lots of people who do not trust President Bush precisely because he is on America's side. So, let's discard the rest of the world, or the minority of Americans argument for America unilaterally disarming in a world where intelligence operations are important.
So, you are in this country, and think you have been particularly harmed, and that the things that you need to show you have been harmed are government secrets. After all, if you think it isn't a secret, then you would not need to go into that stuff. Take for example espionage cases. There are very few attorneys who have the type of high security clearance needed to represent accused spies. People like Plato Cacheris. They do not get to see everything the government has. Why the lawyer off the street? He does not have any clearance. You cannot represent an accused spy effectively unless you are cleared at least to the level he was.
Now, a whole different hill of beans is the judge. It is true that the judge is an official of the government, but not all executive government officials have access to all secrets. That is part of how they stay secret. But the judge has to be able to determine what kinds of secrets might be at stake. This is often handled by the government bringing the secrets over for the judge to see, and then removing them when he is done. This is because courthouses are not designed to keep national security secrets. Their employees are not screened to that level. A judge may exercise some independence in checking on the nature of the secrets, but would have separation of powers issues with going through too much.
Alas, warrants are not a solution if you think the problem is a Constitutional one. Why? Well, the Constitution outlines what kinds of warrants solve constitutional fourth amendment problems:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." http://www.usconstitution.net/const.html#Am4
Now, what does a Warrant require? 1) probable cause, 2) an oath or affirmation by the agent specifying what he knows about what is to be searched or seized, and 3) particular description. That means that "program warrants" (see http://www.washingtonpost.com/wp-dyn/content/artic le/2006/06/08/AR2006060801992.html) where NSA would have an entire program warranted at once might be a control by the legislature on the president, perhaps grounded in its power to fund programs, but not in a Constitutional meaning of Warrant. Therefore, if you buy the constitutional argument of rights without any balancing test, require a warrant, that warrant must be particular, and NSA has to stop listening to any communication involving America, an American, etc., and therefore is constituionally forbidden from searching for terrorism where any of those are involved.
Please put that position in your political party's platform
This is the country of both the Scopes' "monkey trial" and Stephen Jay Gould. A view of the relationship of religiousity against scientific success would lead to the conclusion that all the Nobel Prizes are for America's having been more religious than Europe for at least two centuries.
America has never had a problem with being Christian and being a science and technology leader. Scientists often have religious or quasi-religious motivations. They want to know how the world that God created works. Truth be told, environmentalists are more of a threat to science and technology (pollution! frankenfood! mutant children!) than religious fundamentalists.
All in all the idea that those nice Chinese and Indian people can handle all that hard stuff for us is probably the most pernicious problem. America just doesn't want to do great things anymore, it just wants to be fat and happy, and will let those more motivated people do the hard stuff.
DM: You are at the top of a cliff. An orc at the bottom flips your party off. Me: My 8th level dwarvish fighter with a 19 CON jumps off the cliff aiming to land on the orc. DM: Ok, roll a d20. Me: 5. DM: You miss. You also take 20d6. Wait, that's not fair, I have to roll almost all 6's for you to die. Me: That's fine. Roll 'em up while I run take out my axe, and chase down that orc.
D&D rapidly had a number of superior competitors. Most of them died off.
I am probably the only person left on the planet who remembers the game Melanda.
This is probably better news in Europe in general than it is on this side of the Atlantic. I would expect other EC member nations to be more persuaded than the U.S. would be.
The biggest barrier to using this at all in a U.S. court would be that it is a PRELIMINARY decision, not a final decision. If the word "preliminary" means the same thing in Germany as in the U.S., the German court has not made a full consideration of the merits, and is only making a disposition for the period until which it reaches a final decision.
This ignores the many difficulties in using foreign law as authority in U.S. Courts. (Which differs from enforcing foreign judgments in U.S. Courts.)
Another reason to consult a lawyer is that many states restrict how much the employer can appropriate from you. If you tell the employer that you won't sign it because "you can't do that in this state" may be better received than a "hell, no."
An example (which may or may not still be the law in California):
CALIFORNIA CODES LABOR CODE SECTION 2870-2872 2870. (a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:
Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or
Result from any work performed by the employee for the employer. (b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable. 2871. No employer shall require a provision made void and unenforceable by Section 2870 as a condition of employment or continued employment. Nothing in this article shall be construed to forbid or restrict the right of an employer to provide in contracts of employment for disclosure, provided that any such disclosures be received in confidence, of all of the employee's inventions made solely or jointly with others during the term of his or her employment, a review process by the employer to determine such issues as may arise, and for full title to certain patents and inventions to be in the United States, as required by contracts between the employer and the United States or any of its agencies.
2872. If an employment agreement entered into after January 1, 1980, contains a provision requiring the employee to assign or offer to assign any of his or her rights in any invention to his or her employer, the employer must also, at the time the agreement is made provide a written notification to the employee that the agreement does not apply to an invention which qualifies fully under the provisions of Section 2870. In any suit or action arising thereunder, the burden of proof shall be on the employee claiming the benefits of its provisions.
The Supreme Court in Diamond v. Diehr said that you could not patent a mathematical formula, not that you could not patent software.
There is a world of difference between patenting F=ma, and patenting bubble sorting by computer. (Both admittedly, now, quite old.)
Keep in mind, software is not the only way to calculate. You can do a least squares fit by either digital computer with software, or you can use a non-software analog computer made as a stick held in the fit position by rubber bands reaching to data points represented by nails (Please note, rubber bands can be thought of as springs following, to some approximation, a square of displacement response curve.)
First on your list, the Supreme Court has a number of cases holding what is patentable subject matter, not many holding what is not patentable. (E.g. oil eating bacterial are patentable, rubber curing process patentable, etc.) They take about 1 patent case a year. I don't think Supreme Court non-involvement is the cause of the whole field.
Second, the panels are three judge panels. Judge Rich is not an island, unto himself alone. Each of the three judges has law clerks. The other, uninvolved, judges (probably about 6 to 10) read the case before it was allowed to publish. I don't see where they went against an express holding of Diamond v. Diehr, so it is hard to say that the decision can only be based on a misunderstanding of the case.
Holding: the parts of a decision necessary to the result. Therefore, in Diamond v Diehr, whether or not a formula (or algorithm or software) standing alone can be patented is not essential to the decision. Especially, in patent cases, the Supreme Court is not likely to have closely considered, and had well briefed, non-dispositive issues. Deference to dicta (non-holdings) would cause more mischief that solve problems.
In the end, blame Congress. 35 U.S.C. 101 is not a model of clarity in the face of innumberable technologies. Sometimes the courts take their best shot given an unclear statute. That's why Congress sometimes passes corrective law after a court decision.
We appoint judges here to help them maintain some independence. That allows them to protect individual rights, which often are under assault by majoritarian impulses. It also allows them to call fouls when the majority does not adhere to the rules. The second is what the judge thought he was doing.
The judge thought he was holding the FTC to the limits of the power it had been given. Congress said to go out and put together a list, and gave money to make the list. He said it did not empower them specifically do do what they were doing with the list. (I think he got it wrong, but that's what they make Courts of Appeal for.)
As much as people here like the indecency act that got passed being struck down by the Supreme Court, or want the DMCA to be struck down by courts, or like it when courts do not shut down sucks site domain names, you get to whining pretty quickly when a judge shows some independence. So, the reaction of many is to try to intimidate or punish the judge (or more likely his poor clerk) with crank phone calls.
Why wait for a Court of Appeal to take 6 months to sort it out when a short, specific bill retroactively authorizing the regulations in question would take no time to pass? Don't call the judge, call your congressman to fix it NOW.
It is better to call your elected politician. Judges are not there to listen to the majority, or be cowed by a phone call campaign. They are there to try to apply the law as best they can. It's fine to be angry. I'm ticked myself. But don't be a weenie.
The ability to manufacture, rather than harvest, silk would be a boon in many ways. Currently, silk is recovered from worm cocoons in labor intensive operations. (I toured a silk factory in China once. Yes, they use machines, but there is a lot of labor too.)
I suspect even the ability to make silkworm-quality-silk at a reasonable cost would be a big improvement.
A reference has to enable a person of ordinary skill in the field to use the invention. Therefore, 20000 Leagues Under The Sea by Jules Verne is not enabling of nuclear powered submarines, and does not prevent patenting such. This is a case where the idea "it would be cool if..." doesn't have a solution in the field.
Not that patents are limited to that. Lifting one end of a widely used printing press used for printing large city newspapers sped up the process by a factor of 3. The invention was in figuring out that this simple action effectively transformed the machine.
Are the NTP patents in the third category, that is, once some bumpkin says "oh, it would be cool..." any old person working in the field could solve the problem? Ah, that's the 53+ million dollar question.
The statute is appended below, the key language is: "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include...", which means that a court must consider the listed factors, but is not prevented from considering unlisted factors. The statute does not tell courts how to weight the factors, listed or not.
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.
This is an artifact of the old patent system. You had a patent from 17 years after the date of issue, therefore, keeping the thing barely alive on life support until the technology became worthwhile was a game. If either of these had issued, without continuations when applied for, they would have been worthless.
Now, patents are timed 20 years from the date of filing. That means it is never good for the applicant to delay as far as term extension. (There may be other reasons, such as figuring out what you really want, to take your time.)
Some people have raised free speech concerns as if the U.S. might not do the same things the Europeans have. There are reasons to be suspicious.
The FCC used to have something called the fairness doctrine that applied to TV and radio. A media outlet would have to air all points of view if it aired any point of view on a subject.
The fairness doctrine was upheld by the Supreme Court in the Red Lion case. In that case, the issue was whether a person who thought he had been personally attacked in a broadcast had the right to air his defense on the station. The Supreme Court ruled:
"In view of the scarcity of broadcast frequencies, the Government's role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and ruling at issue here are both authorized by statute and constitutional."
However, if we take the U.S. Supreme Court at its word in an Internet case, the fairness doctrine might well not be sustained on the Internet. As the Court said in Reno v. ACLU, striking down provisions of the Communications Decency Act of 1996:
"In Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975), we observed that "[e]ach medium of expression . . . may present its own problems." Thus, some of our cases have recognized special justifications for regulation of the broadcast media that are not applicable to other speakers, see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969); FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In these cases, the Court relied on the history of extensive government regulation of the broadcast medium, see, e.g., Red Lion, 395 U. S., at 399-400; the scarcity of available frequencies at its inception, see, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637-638 (1994); and its "invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 128 (1989). Those factors are not present in cyberspace."
Given the fact that some broadcasters use cyberspace, e.g. CNN, we can't be sure where our Supreme Court would end up on the freedom of speech issue.
The PTO does get a an issue fee, and maintenance fees if the patent issues. On the other hand, it has to publish the patent, put copies in all of the patent depository libraries around the country and so on. The maintenance fees are cheap at 4 years, more expensive at 7 years, and pretty hurtful at 11 years. However, if the patent is for something useless, or wasn't marketed, the odds of getting any of those is slim.
The examiners don't get a cut though. Their incentive is to get points. They get points for dispositions. For an examiner there are two winning scenarios, which can be combined:
1) one patent application, several patents - basically you break up the widget from the process of making a widget, from the process of using a widget, etc. (Think: chemical, treating unspeakable disease with a chemical, process for making a chemical...)
2) the weebles scneario - you knock it down, but not so hard that it can't get up. You knock the claims down with your Nth best prior art, they amend the claims over the Nth best, then you hit them with the N-1st best, and make the rejection final. Lather, rinse, repeat.
Both are expensive to the applicant, as you can imagine. But I am not cynical.
Well, did Xeroc PARC ever actually benefit from all of its development? Apart from the Unistroke patent lawsuit, it seems to me that they've missed just about every boat they designed.
A valid patent has to be new, useful, and non-obvious. Therefore, it has to have been a contribution, now made public, of some kind, albeit usually a small advance. Some are big. I bet if someone comes up with a $5 test for SARS, there will be a patent.
Registering a domain name isn't a contribution of any kind to the human race, it is just taking up space. When was the last time a domain name registration every did other people any good?
There are quite a number of companies that perpetuate fantasies that the ordinary person can make a lot of money by getting a patent on an idea, and then marketing it to companies. Things go so bad that Congress passed a law to control these invention promotion firms. A form for reporting abusive forms of these services can be found at http://www.uspto.gov/web/forms/2048.pdf
(It is sad to see people who paid $10,000 to have a really bad idea for a dishwasher written up in 10 pages of form paragraphs, and the promotion activity be limited to being told that GE and Whirlpool make dishwashers.)
The reason for the reporting that is required is that many of these companies had never had a patent issue and be licensed to anyone.
Sure, there are the rare exceptions, I know of a couple personally, but for each of those there are 100 people who shelled out $10,000 for pretty much nothing.
First, one of the nice things about copyright, for the little guy, is that you do not have to register to be entitled to some copyright protection. You author something, and there is some protection you are entitled to without registration. Copyright registrations are inexpensive, and can usually be done without the assistance of an attorney. Requring a registration after 5, 10, or even 20 years to have a continuing copyright could make good sense -- the author would have a fair chance to assess what needed protecting versus what was not going to be worth paying a fee.
Second, because of the Berne Convention, we cannot burden copyrights resulting from publications in foreign countries in certain ways. For example, you have to register a domestic work before you file a lawsuit in the U.S., but the foreign work does not have to file a U.S. registration prior to a lawsuit. If done in a way such that the effect were to be to force Disney and Hollywood to move to Canada or Mexico, I can't say it would be a victory.
Third, is used in a way like present fee systems, the fees would not distinguish between big money works that pay for themselves in a year, and the rest is gravy, versus the smaller circulation works that need 10 or 20 years to gather a good income. In some ways a tax would work better -- it could be proportional to the financial value.
I think that copyright should be easy and cheap for short periods, cost money to maintain for long periods (although shorter than the current limits), be consistent internationally, and have an easy way for the public to figure out what is or is not copyrighted (E.g. not having to figure out when Joe Obscure Author kicked the bucket).
Slashdot Mirror
This case is about 35 U.S.C. Section 101, patentable subject matter. It is not about inventive step, obviousness, written description. etc. http://thepriorart.typepad.com/files/order.prometheus.pdf (the opinion of the trial court) "After careful consideration of the pleadings and relevant exhibits presented by the parties, the oral argument presented at the hearing, and for the reasons set forth below, this Court GRANTS Defendantsâ(TM) motion for summary judgment of patent invalidity thereby invalidating the patents-in-suit as violative of 35 U.S.C. Â 101." So, 35 U.S.C. Section 101 reads: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title." This has usually been interpreted as you can't patent gravity, but you can patent a pile driver. Please note, even a trivial expression of gravity is patentable subject matter. You still have to overcome novelty and obviousness. But you get in the door. The key is whether the patented thing is made by man or not. You can patent a living organism if you made it. That is Diamond v Chakrabarty. However, if you engage in some trivial activity, such as cross-breeding plants but not changing the DNA, then that is obvious. In re Pod-ners (http://www.cafc.uscourts.gov/opinions/08-1492.pdf)
A means plus function claim. (35 U.S.C. Section 112, Paragraph 6), is not plain English.
For each means for performing the function, you have to go back to the specification, and identify the specific structure that performs that function and then plug it in to the "means for" part. Determining what details have to be included and not is the subject of quite a bit of litigation.
Then the claim covers that plus its equivalents as known to those of ordinary skill in the art as of the time of the invention.
That is probably the least simple claim in the patent, though I have not looked.
It takes 4 justices to grant certiorari to a case, except in certain capital punishment circumstances. http://www.law.cornell.edu/wex/index.php/Certiorari Therefore, we know that at most 3 justices were interested in hearing the case. None of them felt strongly enough about this to write a dissent from the denial of a grant of certiorari. That has happened in the anti-terrorism context, with Justice Breyer writing and Souter and Ginsburg joining. URL:www.supremecourtus.gov/opinions/06pdf/06-1195Breyer.pdf>. President Bush has appointed two out of 9. A full four, enough to grant certiorari, are liberal and often at odds with the president.
Regardless of your politics, the decision of the trial court was awful.
http://althouse.blogspot.com/2006/08/shocking-decision-in-aclu-v-nsa.html This just puts an ACLU fantasy about its reach to bed.
Justice is served.
The idea that the firm that won the trial on the Exxon Valdez case (Faegre & Benson)http://www.faegre.com/articles/article_751.aspx is afraid of jury trials is silly. They are just trying to save the judge time, and the client money.
Yes.
n al5-4visual.pdf
0 6SummaryInfo.pdf (second page)
Only Anthony Kennedy was in the majority in every 5-4 decision. If you need it visually, it is at: http://www.scotusblog.com/movabletype/archives/Fi
There were 24 5-4 cases, of which the 5 you are referring to were the 5 in 13, and not in 11. http://www.scotusblog.com/movabletype/archives/OT
Anti-trust is historically less political than other areas, such as civil rights or constitutional law. So while it was the classical conservative 5 this time, it was by no means a lock.
There are some subtle points that need to be considered. Just because someone gets to call President Bush to task, does not mean it is anyone who walks in the door of a Court. So, just walking in the front door, and saying "I don't trust the president, let me run through any and all files of the entire government without limitation" should not result in immediate access to the country's greatest secrets. Like him or not, President Bush was the person elected to protect them, not the man off the street. The rest of the world did not elect President Bush, and in fact, he was elected to promote the interests of the United States against their interests. Al Qaeda does not like President Bush not telling them where all his spies are. They are represenative of lots of people who do not trust President Bush precisely because he is on America's side. So, let's discard the rest of the world, or the minority of Americans argument for America unilaterally disarming in a world where intelligence operations are important.
So, you are in this country, and think you have been particularly harmed, and that the things that you need to show you have been harmed are government secrets. After all, if you think it isn't a secret, then you would not need to go into that stuff. Take for example espionage cases. There are very few attorneys who have the type of high security clearance needed to represent accused spies. People like Plato Cacheris. They do not get to see everything the government has. Why the lawyer off the street? He does not have any clearance. You cannot represent an accused spy effectively unless you are cleared at least to the level he was.
Now, a whole different hill of beans is the judge. It is true that the judge is an official of the government, but not all executive government officials have access to all secrets. That is part of how they stay secret. But the judge has to be able to determine what kinds of secrets might be at stake. This is often handled by the government bringing the secrets over for the judge to see, and then removing them when he is done. This is because courthouses are not designed to keep national security secrets. Their employees are not screened to that level. A judge may exercise some independence in checking on the nature of the secrets, but would have separation of powers issues with going through too much.
Alas, warrants are not a solution if you think the problem is a Constitutional one. Why? Well, the Constitution outlines what kinds of warrants solve constitutional fourth amendment problems:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." http://www.usconstitution.net/const.html#Am4
Now, what does a Warrant require? 1) probable cause, 2) an oath or affirmation by the agent specifying what he knows about what is to be searched or seized, and 3) particular description. That means that "program warrants" (see http://www.washingtonpost.com/wp-dyn/content/artic le/2006/06/08/AR2006060801992.html) where NSA would have an entire program warranted at once might be a control by the legislature on the president, perhaps grounded in its power to fund programs, but not in a Constitutional meaning of Warrant. Therefore, if you buy the constitutional argument of rights without any balancing test, require a warrant, that warrant must be particular, and NSA has to stop listening to any communication involving America, an American, etc., and therefore is constituionally forbidden from searching for terrorism where any of those are involved.
Please put that position in your political party's platform
This is the country of both the Scopes' "monkey trial" and Stephen Jay Gould. A view of the relationship of religiousity against scientific success would lead to the conclusion that all the Nobel Prizes are for America's having been more religious than Europe for at least two centuries.
America has never had a problem with being Christian and being a science and technology leader. Scientists often have religious or quasi-religious motivations. They want to know how the world that God created works. Truth be told, environmentalists are more of a threat to science and technology (pollution! frankenfood! mutant children!) than religious fundamentalists.
All in all the idea that those nice Chinese and Indian people can handle all that hard stuff for us is probably the most pernicious problem. America just doesn't want to do great things anymore, it just wants to be fat and happy, and will let those more motivated people do the hard stuff.
Here is the opinion.
Oh, how I know what you mean.
DM: You are at the top of a cliff. An orc at the bottom flips your party off.
Me: My 8th level dwarvish fighter with a 19 CON jumps off the cliff aiming to land on the orc.
DM: Ok, roll a d20.
Me: 5.
DM: You miss. You also take 20d6. Wait, that's not fair, I have to roll almost all 6's for you to die.
Me: That's fine. Roll 'em up while I run take out my axe, and chase down that orc.
D&D rapidly had a number of superior competitors. Most of them died off.
I am probably the only person left on the planet who remembers the game Melanda.
This is probably better news in Europe in general than it is on this side of the Atlantic. I would expect other EC member nations to be more persuaded than the U.S. would be.
The biggest barrier to using this at all in a U.S. court would be that it is a PRELIMINARY decision, not a final decision. If the word "preliminary" means the same thing in Germany as in the U.S., the German court has not made a full consideration of the merits, and is only making a disposition for the period until which it reaches a final decision.
This ignores the many difficulties in using foreign law as authority in U.S. Courts. (Which differs from enforcing foreign judgments in U.S. Courts.)
Dang it. I used to use Google's "News and Resources" page (http://www.google.com/news/), which is now broken. Why can't the good old stuff survive?
Phooey.
Another reason to consult a lawyer is that many states restrict how much the employer can appropriate from you. If you tell the employer that you won't sign it because "you can't do that in this state" may be better received than a "hell, no."
An example (which may or may not still be the law in California):
CALIFORNIA CODES
LABOR CODE
SECTION 2870-2872
2870. (a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:
Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or
Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.
2871. No employer shall require a provision made void and unenforceable by Section 2870 as a condition of employment or continued employment. Nothing in this article shall be construed to forbid or restrict the right of an employer to provide in contracts of employment for disclosure, provided that any such disclosures be received in confidence, of all of the employee's inventions made solely or jointly with others during the term of his or her employment, a review process by the employer to determine such issues as may arise, and for full title to certain patents and inventions to be in the United States, as required by contracts between the employer and the United States or any of its agencies.
2872. If an employment agreement entered into after January 1, 1980, contains a provision requiring the employee to assign or offer to assign any of his or her rights in any invention to his or her employer, the employer must also, at the time the agreement is made provide a written notification to the employee that the agreement does not apply to an invention which qualifies fully under the provisions of Section 2870. In any suit or action arising thereunder, the burden of proof shall be on the employee claiming the benefits of its provisions.
The Supreme Court in Diamond v. Diehr said that you could not patent a mathematical formula, not that you could not patent software.
There is a world of difference between patenting F=ma, and patenting bubble sorting by computer. (Both admittedly, now, quite old.)
Keep in mind, software is not the only way to calculate. You can do a least squares fit by either digital computer with software, or you can use a non-software analog computer made as a stick held in the fit position by rubber bands reaching to data points represented by nails (Please note, rubber bands can be thought of as springs following, to some approximation, a square of displacement response curve.)
First on your list, the Supreme Court has a number of cases holding what is patentable subject matter, not many holding what is not patentable. (E.g. oil eating bacterial are patentable, rubber curing process patentable, etc.) They take about 1 patent case a year. I don't think Supreme Court non-involvement is the cause of the whole field.
Second, the panels are three judge panels. Judge Rich is not an island, unto himself alone. Each of the three judges has law clerks. The other, uninvolved, judges (probably about 6 to 10) read the case before it was allowed to publish. I don't see where they went against an express holding of Diamond v. Diehr, so it is hard to say that the decision can only be based on a misunderstanding of the case.
Holding: the parts of a decision necessary to the result. Therefore, in Diamond v Diehr, whether or not a formula (or algorithm or software) standing alone can be patented is not essential to the decision. Especially, in patent cases, the Supreme Court is not likely to have closely considered, and had well briefed, non-dispositive issues. Deference to dicta (non-holdings) would cause more mischief that solve problems.
In the end, blame Congress. 35 U.S.C. 101 is not a model of clarity in the face of innumberable technologies. Sometimes the courts take their best shot given an unclear statute. That's why Congress sometimes passes corrective law after a court decision.
We appoint judges here to help them maintain some independence. That allows them to protect individual rights, which often are under assault by majoritarian impulses. It also allows them to call fouls when the majority does not adhere to the rules. The second is what the judge thought he was doing.
The judge thought he was holding the FTC to the limits of the power it had been given. Congress said to go out and put together a list, and gave money to make the list. He said it did not empower them specifically do do what they were doing with the list. (I think he got it wrong, but that's what they make Courts of Appeal for.)
As much as people here like the indecency act that got passed being struck down by the Supreme Court, or want the DMCA to be struck down by courts, or like it when courts do not shut down sucks site domain names, you get to whining pretty quickly when a judge shows some independence. So, the reaction of many is to try to intimidate or punish the judge (or more likely his poor clerk) with crank phone calls.
Why wait for a Court of Appeal to take 6 months to sort it out when a short, specific bill retroactively authorizing the regulations in question would take no time to pass? Don't call the judge, call your congressman to fix it NOW.
It is better to call your elected politician. Judges are not there to listen to the majority, or be cowed by a phone call campaign. They are there to try to apply the law as best they can. It's fine to be angry. I'm ticked myself. But don't be a weenie.
The ability to manufacture, rather than harvest, silk would be a boon in many ways. Currently, silk is recovered from worm cocoons in labor intensive operations. (I toured a silk factory in China once. Yes, they use machines, but there is a lot of labor too.)
I suspect even the ability to make silkworm-quality-silk at a reasonable cost would be a big improvement.
Also, this is not the be-all for things. There are nanotube technologies that exceed spider silk for strength. However, cost is still an issue in both fields, so silkworms and the associated factories still have work to do.
A reference has to enable a person of ordinary skill in the field to use the invention. Therefore, 20000 Leagues Under The Sea by Jules Verne is not enabling of nuclear powered submarines, and does not prevent patenting such. This is a case where the idea "it would be cool if..." doesn't have a solution in the field.
Not that patents are limited to that. Lifting one end of a widely used printing press used for printing large city newspapers sped up the process by a factor of 3. The invention was in figuring out that this simple action effectively transformed the machine.
Are the NTP patents in the third category, that is, once some bumpkin says "oh, it would be cool..." any old person working in the field could solve the problem? Ah, that's the 53+ million dollar question.
The statute is appended below, the key language is: "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include...", which means that a court must consider the listed factors, but is not prevented from considering unlisted factors. The statute does not tell courts how to weight the factors, listed or not.
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.
This is an artifact of the old patent system. You had a patent from 17 years after the date of issue, therefore, keeping the thing barely alive on life support until the technology became worthwhile was a game. If either of these had issued, without continuations when applied for, they would have been worthless.
Now, patents are timed 20 years from the date of filing. That means it is never good for the applicant to delay as far as term extension. (There may be other reasons, such as figuring out what you really want, to take your time.)
Some people have raised free speech concerns as if the U.S. might not do the same things the Europeans have. There are reasons to be suspicious.
The FCC used to have something called the fairness doctrine that applied to TV and radio. A media outlet would have to air all points of view if it aired any point of view on a subject.
The fairness doctrine was upheld by the Supreme Court in the Red Lion case. In that case, the issue was whether a person who thought he had been personally attacked in a broadcast had the right to air his defense on the station. The Supreme Court ruled:
"In view of the scarcity of broadcast frequencies, the Government's role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and ruling at issue here are both authorized by statute and constitutional."
However, if we take the U.S. Supreme Court at its word in an Internet case, the fairness doctrine might well not be sustained on the Internet. As the Court said in Reno v. ACLU, striking down provisions of the Communications Decency Act of 1996:
"In Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975), we observed that "[e]ach medium of expression . . . may present its own problems." Thus, some of our cases have recognized special justifications for regulation of the broadcast media that are not applicable to other speakers, see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969); FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In these cases, the Court relied on the history of extensive government regulation of the broadcast medium, see, e.g., Red Lion, 395 U. S., at 399-400; the scarcity of available frequencies at its inception, see, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637-638 (1994); and its "invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 128 (1989). Those factors are not present in cyberspace."
Given the fact that some broadcasters use cyberspace, e.g. CNN, we can't be sure where our Supreme Court would end up on the freedom of speech issue.
Personally, I hope we don't have to find out.
Well, the system is a bit different than that.
The PTO does get a an issue fee, and maintenance fees if the patent issues. On the other hand, it has to publish the patent, put copies in all of the patent depository libraries around the country and so on. The maintenance fees are cheap at 4 years, more expensive at 7 years, and pretty hurtful at 11 years. However, if the patent is for something useless, or wasn't marketed, the odds of getting any of those is slim.
The examiners don't get a cut though. Their incentive is to get points. They get points for dispositions. For an examiner there are two winning scenarios, which can be combined:
1) one patent application, several patents - basically you break up the widget from the process of making a widget, from the process of using a widget, etc. (Think: chemical, treating unspeakable disease with a chemical, process for making a chemical...)
2) the weebles scneario - you knock it down, but not so hard that it can't get up. You knock the claims down with your Nth best prior art, they amend the claims over the Nth best, then you hit them with the N-1st best, and make the rejection final. Lather, rinse, repeat.
Both are expensive to the applicant, as you can imagine. But I am not cynical.
Well, did Xeroc PARC ever actually benefit from all of its development? Apart from the Unistroke patent lawsuit, it seems to me that they've missed just about every boat they designed.
A valid patent has to be new, useful, and non-obvious. Therefore, it has to have been a contribution, now made public, of some kind, albeit usually a small advance. Some are big. I bet if someone comes up with a $5 test for SARS, there will be a patent.
Registering a domain name isn't a contribution of any kind to the human race, it is just taking up space. When was the last time a domain name registration every did other people any good?
There are quite a number of companies that perpetuate fantasies that the ordinary person can make a lot of money by getting a patent on an idea, and then marketing it to companies. Things go so bad that Congress passed a law to control these invention promotion firms. A form for reporting abusive forms of these services can be found at http://www.uspto.gov/web/forms/2048.pdf
(It is sad to see people who paid $10,000 to have a really bad idea for a dishwasher written up in 10 pages of form paragraphs, and the promotion activity be limited to being told that GE and Whirlpool make dishwashers.)
The reason for the reporting that is required is that many of these companies had never had a patent issue and be licensed to anyone.
Sure, there are the rare exceptions, I know of a couple personally, but for each of those there are 100 people who shelled out $10,000 for pretty much nothing.
First, one of the nice things about copyright, for the little guy, is that you do not have to register to be entitled to some copyright protection. You author something, and there is some protection you are entitled to without registration. Copyright registrations are inexpensive, and can usually be done without the assistance of an attorney. Requring a registration after 5, 10, or even 20 years to have a continuing copyright could make good sense -- the author would have a fair chance to assess what needed protecting versus what was not going to be worth paying a fee.
Second, because of the Berne Convention, we cannot burden copyrights resulting from publications in foreign countries in certain ways. For example, you have to register a domestic work before you file a lawsuit in the U.S., but the foreign work does not have to file a U.S. registration prior to a lawsuit. If done in a way such that the effect were to be to force Disney and Hollywood to move to Canada or Mexico, I can't say it would be a victory.
Third, is used in a way like present fee systems, the fees would not distinguish between big money works that pay for themselves in a year, and the rest is gravy, versus the smaller circulation works that need 10 or 20 years to gather a good income. In some ways a tax would work better -- it could be proportional to the financial value.
I think that copyright should be easy and cheap for short periods, cost money to maintain for long periods (although shorter than the current limits), be consistent internationally, and have an easy way for the public to figure out what is or is not copyrighted (E.g. not having to figure out when Joe Obscure Author kicked the bucket).
There is no copyright in numbering pages.