The fundamental basis of copyright is still the same. You violate a copyright by copying. Independent creation is fine, even if the end result is the same. If I was stranded on a desert island for that last 20 years and had written a word-for-word copy of Harry Potter and the Sorcerer's Stone without ever having seen JK Rowling's book, I could legally sell it (at least in theory---in reality, I'm never going to convince a fact finder that I didn't copy it somehow). So clean-room implementations are still good. If they did a clean-room implementation of Mac OSX, they could sell it (though they would have to call it something different).
I know. If she were still at HP, she would still be in production. Now that she's used HP as a springboard, she thinks she's going to be a senator or something. So before HP she was just irritating to whomever knew her. Now she gets to irritate the whole world.
Except if Harry Potter goes out of copyright, you do have the right to call your wizard Harry Potter. Trademark can't be used to artificially extend the life of a copyright. If I can distribute copies of The Count of Monte Cristo, but the estate of Alexandre Dumas still holds a trademark, I'd have to call it, That Book About the Guy Who Got Revenge After Being Unjustly Imprisoned in the Bastille. Not quite as catchy.
Also, I wouldn't tie copyright immediately to the life of the author. Otherwise, expect to see a covertly-Disney-funded hit out on J.K. Rowling in the near future.
Sure, but you might run into some prior art problems if you try to patent it.
You're actually talking primarily about trademark in your post, and that is the strongest IP protection for fast food places. You don't generally eat at McD's because you care about their patented sandwich-making process. You eat there because of the awesome power of the Golden Arches (especially when you couple it with the Coca-Cola you buy there).
Your argument begs the question. So I'm going to toss just one more example out, and if you and others still disagree, that's your business. Take McDonald's and obviousness out of the picture. Assume that Joe opens Joe's Burger Joint. Joe is brilliant with processes, and his sandwich making technique, whatever it is, is so efficient that anybody can pull up to the drive-thru, order a sandwich, pull around, and have a hot, fresh, tasty sandwich in hand immediately. No lines, no waiting. Now Joe is making money hand over fist because everybody knows that if you go to Joe's, there's no line, not even during the lunch rush, and the sandwiches are great. McDonald's is not lovin' it, because they are losing customers to Joe.
If you still think that Joe should not be entitled to a patent on his process---meaning that McDonald's is now free to rip him off, defeat the one advantage he has over their vast brand machine, and run him out of business---then you and I simply disagree. If, on the other hand, you think Joe should be rewarded with exclusive rights in his invention for a time (and fortunately, the patent term is still pretty reasonable), then your problem is not that a method of making a sandwich should not be statutory subject matter; it is that you think the McDonald's application is either not new or is obvious. Now, we can talk about novelty and non-obviousness, which are totally different question.
You misread my intention. I said we probably would disagree because this is something I have chosen to devote my career to, while he is largely hostile to the whole field. That doesn't mean he can't have a valid opinion, but it does mean that I probably know more about the subject matter. The purpose of linking to the paper was to help him get some context. If he reads the paper and still doesn't like patents, fine. The paper was not written to be persuasive. It is an introduction to what the law is, for good or ill (though if you read the end notes, you will see that Mr. Miller says the copyright term is definitely too long; a lot of us are on the same page on a lot of issues). But an argument based on a misunderstanding of the subject matter is fundamentally flawed. I'm saying read the paper, understand the subject matter, parse the difference between statutory subject matter and obviousness, then re-enter the discussion better informed.
The problem I see is you're conflating two complaints. If you think it's obvious, fine. You gave some reasonable grounds for why you think some limitations might be obvious. But that's not the same thing as saying, "They're trying to patent sandwiches!!1!1 They can't do that!" There's no reason an improved method for making a sandwich can't be statutory subject matter. It's a method of making something. That is exactly what method patents are supposed to be. If it also happens to be new and non-obvious, hooray, you have a patent.
I suspect that you and I will not agree. You seem to be hostile to IP as a matter of principle. You're entitled to that opinion, and I'm not likely to agree. IP is my bread and butter, and most of the time, from what I've seen, it is used right (though I also have clients who have been sued on stupid patents). But if you're going to go on an anti-IP crusade, at least know what you're talking about. Try this paper written by one of the partners I work for. It's a very good, very accessible layman's primer on IP. And being informed makes you much more persuasive.
nyone who patents sandwich making is some kind of a buttmunching douchebag.
Again, why? Assume for the moment that the method in question is both new and non-obvious. Why shouldn't it be patentable? Hasn't it contributed something to the art of sandwich making once disclosed?
Respectfully, a broken link was the least of the problems with that summary. Either you are woefully uninformed about IP (which seriously harms the credibility of your little crusade), or you are deliberately misleading people. If you are going to crusade against patents, you ought to have a basic understanding of them. You should know what gives the patent scope (the claims, not the title). And you clearly have either not read Bilski at all, or you did not comprehend a single word of it. Bilski has no bearing on a method for making a sandwich. Bilski does not say "all patents that Slashdot anti-IP trolls dislike are now invalid."
In short, if you have some meaningful argument against patents in principle, please present it. On the other hand, if the substance of that argument is, "Look, McDonald's applied for a patent on a method of making a sandwich, LOL" then I counter that you have not proved that a novel and non-obvious method of making a sandwich should not be patentable. You certainly haven't proved anything about this method, since you have read no more than the title. And failing to prove a specific case does not magically translate into proving the general proposition.
So is this guy all hype with overpriced devices, or is time for someone to take his genius (Segway aside) to the mass market?
Or is he, as the title implies but the summary fails to make clear, a guy who has made tons of money selling stuff he's invented since the 80s, and has made enough money that he bought his own private island (with its own "navy" and "air force")and then half-jokingly seceded from the United States something like 20 years ago.
You nailed it (are you a lawyer? Who else reads Patently-O?). I like PJ. I really do. But this is a case where she just heard what she wanted to hear in the opinion, found somebody who agrees with her, and has run with it ever since. As you pointed out, the PTO has upheld Beuregard claims since Bilski issued. That is a trivially-easy way of turning a software claim into a device claim. Honestly, I wondered about the viability of most software claims after Bilski issued, but now that we've gotten a clear signal that Beauregard claims are still good, it would be malpractice not to write software claims for your clients.
So no, Microsoft's patent portfolio is not dead. If they have patents that they think are in danger after Bilski, they can go into reissue and either do Beauregard claims (if they don't have them) or tie them to a particular machine. They can do this even on old patents, because they will be asking for narrowing amendments. In any case, Microsoft's patent portfolio is largely about volume. Each patent stands on its own. It's not "dead" until each and every one of those patents is individually attacked and killed, which is unlikely to happen for two reasons. One, litigation is expensive. Two, some (maybe even most) of them are going to survive in some manner or another (or in other words, if you throw enough spaghetti against the wall, something will stick).
Cue the onslaught of basement-dwelling armchair lawyers who come out of the woodwork to "correct" me any time I say anything about IP law on Slashdot.
They also say they are going to ease taxes while providing bailouts for every failing industry and providing every man, woman, and child in America with unlimited free health care, a bullet-proof retirement, unlimited free energy, and a magical flying puppy(okay, I'm exaggerating a little---they never actually promised the puppy would fly). I'm afraid something has to go, and my guess is that "listening to the people" will be the first thing out the window. Yes, folks, the honeymoon is waning.
Please see my comment here. Innocence and guilt are concepts only applicable to criminal law.
But even beyond that, the real point I'm making is that it's not enough to say, "I wasn't convicted of a crime, therefore I have made my case against you." Here's an example: I want to get damages for defamation. Among other stuff (I do patents, not torts, so this is incomplete), I have to prove that you made a statement about me, and the statement was false. The fact that I was not criminally convicted of or found liable for something is not enough to make out the "false" prong of my burden. Nobody is found "innocent" in criminal trial. You are either found guilty or you aren't. You don't have to prove that you're innocent. If you did, that would turn our entire system on its head. So the jury doesn't "find" you innocent. It just doesn't find you guilty.
Now, back to our defamation case. You accused me of a crime. I was not found guilty. Now I want to sue you. It is up to me to now prove that I am innocent of the charged crime, because that proves that your accusation was false. I can no longer just throw the other side on its burden. It is encumbent on me to bring forth evidence preponderating my innocence. So even if you use a very loose (and incorrect) definition of "innocent until proven guilty," the presumption that was in your favor as a defendant does not prove your case as a plaintiff.
I guess that's a little exaggerated. In civil trials, you don't really start out on equal footing. The defendant starts out slightly ahead (presumption is still with him), and to win, the plaintiff must inch a little bit past him.
No, because "innocent" and "guilty" don't mean anything in civil cases. Also, you have to treat "prove" as a term of art. "Prove" means something entirely different in a criminal context than in a civil context. "Innocent until proven guilty" actually means, "you are presumed to be 'not guilty' until the state has cleared all the numerous constitutional hurdles we have intentionally placed in its way to make it very hard to 'prove' that an innocent person is guilty, and then proven beyond a reasonable doubt that you are guilty of the charged crime." It means, "Jury, if you're not sure, if you still have some lingering doubts, if you think, 'He probably did it, but I can see how he could reasonably be innocent,' you must acquit the defendant." It means you are entitled to Sixth Amendment guaranteed trial by jury instead of Seventh Amendment trial by jury guaranteed if you happen to be in federal court and the judge feels like it. It means (in most cases) that a jury of twelve of your peers must vote against you unanimously. It means you are protected against self incrimination and you get the Confrontation Clause. It means your adversary is the Sovereign State, so we're going to stack the cards heavily in your favor. It means you get the benefit of the Exclusionary Rule if the state unlawfully searched you or seized things. It means you're starting out WAY ahead of your adversary, and your adversary must make up all that ground and blow way past you to win.
"Proof by a preponderance of the evidence" means everybody starts out on equal footing and the plaintiff wins if he inches a little ahead of the defendant.
In the USA, we are supposedly innocent until proven guilty in a court of law
That platitude only applies to criminal law. In civil cases, they just say that the plaintiff bears the burden of proving his case by a preponderance of the evidence (i.e., more likely than not). So to win a suit against the RIAA, you need to prove that it's more likely than not that you didn't pirate any music (e.g., "I don't even own a computer," or "I'm Ted Stevens") along with whatever else the particular law requires.
In response, the military has issued a new, official photo of Gen. Dunwoody. But again, it looks like they may have photoshopped it. If you look closely, you'll notice some differences between the before and after pictures.
Slashdot Mirror
Plus, can you imagine multiple mothers-in-law? [Shudder]
The fundamental basis of copyright is still the same. You violate a copyright by copying. Independent creation is fine, even if the end result is the same. If I was stranded on a desert island for that last 20 years and had written a word-for-word copy of Harry Potter and the Sorcerer's Stone without ever having seen JK Rowling's book, I could legally sell it (at least in theory---in reality, I'm never going to convince a fact finder that I didn't copy it somehow). So clean-room implementations are still good. If they did a clean-room implementation of Mac OSX, they could sell it (though they would have to call it something different).
What if we are the new smarter, more capable species?
They have medications for that.
I know. If she were still at HP, she would still be in production. Now that she's used HP as a springboard, she thinks she's going to be a senator or something. So before HP she was just irritating to whomever knew her. Now she gets to irritate the whole world.
So he was. It's been a few years since I read it.
Except if Harry Potter goes out of copyright, you do have the right to call your wizard Harry Potter. Trademark can't be used to artificially extend the life of a copyright. If I can distribute copies of The Count of Monte Cristo, but the estate of Alexandre Dumas still holds a trademark, I'd have to call it, That Book About the Guy Who Got Revenge After Being Unjustly Imprisoned in the Bastille. Not quite as catchy.
Also, I wouldn't tie copyright immediately to the life of the author. Otherwise, expect to see a covertly-Disney-funded hit out on J.K. Rowling in the near future.
Sure, but you might run into some prior art problems if you try to patent it.
You're actually talking primarily about trademark in your post, and that is the strongest IP protection for fast food places. You don't generally eat at McD's because you care about their patented sandwich-making process. You eat there because of the awesome power of the Golden Arches (especially when you couple it with the Coca-Cola you buy there).
So what you're saying is, One Ring to rule them all...
Right. Because they are also the world's leading producer of Carly Fiorina, which pretty much cancels out anything good they do.
Your argument begs the question. So I'm going to toss just one more example out, and if you and others still disagree, that's your business. Take McDonald's and obviousness out of the picture. Assume that Joe opens Joe's Burger Joint. Joe is brilliant with processes, and his sandwich making technique, whatever it is, is so efficient that anybody can pull up to the drive-thru, order a sandwich, pull around, and have a hot, fresh, tasty sandwich in hand immediately. No lines, no waiting. Now Joe is making money hand over fist because everybody knows that if you go to Joe's, there's no line, not even during the lunch rush, and the sandwiches are great. McDonald's is not lovin' it, because they are losing customers to Joe.
If you still think that Joe should not be entitled to a patent on his process---meaning that McDonald's is now free to rip him off, defeat the one advantage he has over their vast brand machine, and run him out of business---then you and I simply disagree. If, on the other hand, you think Joe should be rewarded with exclusive rights in his invention for a time (and fortunately, the patent term is still pretty reasonable), then your problem is not that a method of making a sandwich should not be statutory subject matter; it is that you think the McDonald's application is either not new or is obvious. Now, we can talk about novelty and non-obviousness, which are totally different question.
You misread my intention. I said we probably would disagree because this is something I have chosen to devote my career to, while he is largely hostile to the whole field. That doesn't mean he can't have a valid opinion, but it does mean that I probably know more about the subject matter. The purpose of linking to the paper was to help him get some context. If he reads the paper and still doesn't like patents, fine. The paper was not written to be persuasive. It is an introduction to what the law is, for good or ill (though if you read the end notes, you will see that Mr. Miller says the copyright term is definitely too long; a lot of us are on the same page on a lot of issues). But an argument based on a misunderstanding of the subject matter is fundamentally flawed. I'm saying read the paper, understand the subject matter, parse the difference between statutory subject matter and obviousness, then re-enter the discussion better informed.
The problem I see is you're conflating two complaints. If you think it's obvious, fine. You gave some reasonable grounds for why you think some limitations might be obvious. But that's not the same thing as saying, "They're trying to patent sandwiches!!1!1 They can't do that!" There's no reason an improved method for making a sandwich can't be statutory subject matter. It's a method of making something. That is exactly what method patents are supposed to be. If it also happens to be new and non-obvious, hooray, you have a patent.
I suspect that you and I will not agree. You seem to be hostile to IP as a matter of principle. You're entitled to that opinion, and I'm not likely to agree. IP is my bread and butter, and most of the time, from what I've seen, it is used right (though I also have clients who have been sued on stupid patents). But if you're going to go on an anti-IP crusade, at least know what you're talking about. Try this paper written by one of the partners I work for. It's a very good, very accessible layman's primer on IP. And being informed makes you much more persuasive.
Again, why? Assume for the moment that the method in question is both new and non-obvious. Why shouldn't it be patentable? Hasn't it contributed something to the art of sandwich making once disclosed?
It transforms something (a sandwich). That is the second prong of the "machine or transformation" test.
Respectfully, a broken link was the least of the problems with that summary. Either you are woefully uninformed about IP (which seriously harms the credibility of your little crusade), or you are deliberately misleading people. If you are going to crusade against patents, you ought to have a basic understanding of them. You should know what gives the patent scope (the claims, not the title). And you clearly have either not read Bilski at all, or you did not comprehend a single word of it. Bilski has no bearing on a method for making a sandwich. Bilski does not say "all patents that Slashdot anti-IP trolls dislike are now invalid."
In short, if you have some meaningful argument against patents in principle, please present it. On the other hand, if the substance of that argument is, "Look, McDonald's applied for a patent on a method of making a sandwich, LOL" then I counter that you have not proved that a novel and non-obvious method of making a sandwich should not be patentable. You certainly haven't proved anything about this method, since you have read no more than the title. And failing to prove a specific case does not magically translate into proving the general proposition.
Well that, and pretty much everybody who isn't a Slashbot.
Or is he, as the title implies but the summary fails to make clear, a guy who has made tons of money selling stuff he's invented since the 80s, and has made enough money that he bought his own private island (with its own "navy" and "air force")and then half-jokingly seceded from the United States something like 20 years ago.
You nailed it (are you a lawyer? Who else reads Patently-O?). I like PJ. I really do. But this is a case where she just heard what she wanted to hear in the opinion, found somebody who agrees with her, and has run with it ever since. As you pointed out, the PTO has upheld Beuregard claims since Bilski issued. That is a trivially-easy way of turning a software claim into a device claim. Honestly, I wondered about the viability of most software claims after Bilski issued, but now that we've gotten a clear signal that Beauregard claims are still good, it would be malpractice not to write software claims for your clients.
So no, Microsoft's patent portfolio is not dead. If they have patents that they think are in danger after Bilski, they can go into reissue and either do Beauregard claims (if they don't have them) or tie them to a particular machine. They can do this even on old patents, because they will be asking for narrowing amendments. In any case, Microsoft's patent portfolio is largely about volume. Each patent stands on its own. It's not "dead" until each and every one of those patents is individually attacked and killed, which is unlikely to happen for two reasons. One, litigation is expensive. Two, some (maybe even most) of them are going to survive in some manner or another (or in other words, if you throw enough spaghetti against the wall, something will stick).
Cue the onslaught of basement-dwelling armchair lawyers who come out of the woodwork to "correct" me any time I say anything about IP law on Slashdot.
They also say they are going to ease taxes while providing bailouts for every failing industry and providing every man, woman, and child in America with unlimited free health care, a bullet-proof retirement, unlimited free energy, and a magical flying puppy(okay, I'm exaggerating a little---they never actually promised the puppy would fly). I'm afraid something has to go, and my guess is that "listening to the people" will be the first thing out the window. Yes, folks, the honeymoon is waning.
Please see my comment here. Innocence and guilt are concepts only applicable to criminal law.
But even beyond that, the real point I'm making is that it's not enough to say, "I wasn't convicted of a crime, therefore I have made my case against you." Here's an example: I want to get damages for defamation. Among other stuff (I do patents, not torts, so this is incomplete), I have to prove that you made a statement about me, and the statement was false. The fact that I was not criminally convicted of or found liable for something is not enough to make out the "false" prong of my burden. Nobody is found "innocent" in criminal trial. You are either found guilty or you aren't. You don't have to prove that you're innocent. If you did, that would turn our entire system on its head. So the jury doesn't "find" you innocent. It just doesn't find you guilty.
Now, back to our defamation case. You accused me of a crime. I was not found guilty. Now I want to sue you. It is up to me to now prove that I am innocent of the charged crime, because that proves that your accusation was false. I can no longer just throw the other side on its burden. It is encumbent on me to bring forth evidence preponderating my innocence. So even if you use a very loose (and incorrect) definition of "innocent until proven guilty," the presumption that was in your favor as a defendant does not prove your case as a plaintiff.
I guess that's a little exaggerated. In civil trials, you don't really start out on equal footing. The defendant starts out slightly ahead (presumption is still with him), and to win, the plaintiff must inch a little bit past him.
No, because "innocent" and "guilty" don't mean anything in civil cases. Also, you have to treat "prove" as a term of art. "Prove" means something entirely different in a criminal context than in a civil context. "Innocent until proven guilty" actually means, "you are presumed to be 'not guilty' until the state has cleared all the numerous constitutional hurdles we have intentionally placed in its way to make it very hard to 'prove' that an innocent person is guilty, and then proven beyond a reasonable doubt that you are guilty of the charged crime." It means, "Jury, if you're not sure, if you still have some lingering doubts, if you think, 'He probably did it, but I can see how he could reasonably be innocent,' you must acquit the defendant." It means you are entitled to Sixth Amendment guaranteed trial by jury instead of Seventh Amendment trial by jury guaranteed if you happen to be in federal court and the judge feels like it. It means (in most cases) that a jury of twelve of your peers must vote against you unanimously. It means you are protected against self incrimination and you get the Confrontation Clause. It means your adversary is the Sovereign State, so we're going to stack the cards heavily in your favor. It means you get the benefit of the Exclusionary Rule if the state unlawfully searched you or seized things. It means you're starting out WAY ahead of your adversary, and your adversary must make up all that ground and blow way past you to win.
"Proof by a preponderance of the evidence" means everybody starts out on equal footing and the plaintiff wins if he inches a little ahead of the defendant.
So no, they're not remotely the same thing.
That platitude only applies to criminal law. In civil cases, they just say that the plaintiff bears the burden of proving his case by a preponderance of the evidence (i.e., more likely than not). So to win a suit against the RIAA, you need to prove that it's more likely than not that you didn't pirate any music (e.g., "I don't even own a computer," or "I'm Ted Stevens") along with whatever else the particular law requires.
In response, the military has issued a new, official photo of Gen. Dunwoody. But again, it looks like they may have photoshopped it. If you look closely, you'll notice some differences between the before and after pictures.