Really, you need to use it as a generic noun. That means you would have to start calling OTHER mp3 players "iPods." For example, if you say "Check out these cool iPods that SanDisk makes," you would be using iPod as a generic. By the way, if you say that anywhere important, you are sure to draw a nasty letter from Apple's lawyers, as they guard their trademarks like they're the crown jewels. But ultimately, if enough people start using it that way, the TM is dead, despite all your best efforts. Just ask your buddies thermos, aspirin*, linoleum, and trampoline.
*Fun fact: Bayer also lost its trademark on "heroin" to genericization.
This, of course, is not legal advice, and although at least one court has said it's totally okay to do so (meaning, by way of fair warning, that it may be a Rule 11 violation to sue somebody for it in certain jurisdictions), I'm certainly not trying to genericize "iPod" or suggesting that you do so. iPod(R) is a registered trademark of Apple and the proper thing to say is "iPod portable music player."
He would need an explicit assignment back. What's tough for him is that his employer didn't think they owned it, so they saw no need for anybody to assign anything. This guy tried to do everything right, and it still bit him in the end.
Ah, here it is. DDB Tech v. MLB Advanced Media (Fed. Cir. 2008). And commentary by Dennis Crouch. I was wrong. It originated out of the 5th Circuit (Western District of Texas), but it was actually a Federal Circuit decision. So be aware of what you're signing. And if you're concerned, consult a lawyer.
I don't see it changing in the near future. Your best bet is to work for companies with more reasonable policies, or be an independent contractor, in which case you have a lot more freedom. It may not be fair, but there is a lot of unfairness in the law.
Lest you think I'm exaggerating, there was a recent case out of the 5th Circuit. I forget the name (maybe I'll look it up tomorrow). But here are the facts: "A" works for Corp. 1 with an employment agreement that covers all intellectual property he develops. A invents an unrelated thing. He goes to his corporate overlords and asks them if they're interested in developing it. They say, "No, that's not our line of business. We're not interested in the invention. You can do it on your own if you want." A and a buddy quit Corp. 1, patent the invention, and form their own startup commercializing it. Corp. 2 steals the idea and starts making it. A and his startup sue Corp. 2. Corp. 2 cleverly goes to Corp. 1 and buys a "quitclaim" title to the invention (meaning, "Whatever interest you have in it, we will buy it from you, even if it turns out to be nothing"). Corp. 2 then claims that they own the patent. The reasoning is that Corp. 1 already owned the invention as soon as A invented it, and their mere lack of interest was insufficient to transfer title back to A. The key was the language in the agreement. Many say, "You agree to transfer all IP you create while employed..." If it had said that, the transfer would have failed to take place when Corp. 1 showed no interest, Corp. 2 would probably be estopped from trying to claim it now on Corp. 1's behalf, and A wins. But here, it said, "You do hereby prospectively transfer all IP you create while employed..." Since present language caused the transfer to take place immediately upon creation, Corp. 1 owned the invention, regardless of what they told A. And Corp. 2 bought it from Corp. 1. Therefore, Corp. 2 wins.
Is that result "fair"? Maybe not. But it's logically consistent and lets me know what the effect of specific language will be in a contract, which is what the law is (or should be) concerned about. So when I write an employment agreement for a client, guess what language I am now always sure to include?
LargeEvilMegaCorporation will have excessive disclaimers of warranty for all of their code, and you should too. If you're foolish enough to release code without disclaimers, the answer is, "If he had handed it over to us like he was obligated to do, we would have put disclaimers on it before we released it. So he gets to indemnify us."
Re:Hey, remember when Ender's Game was good?
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Ender in Exile
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Especially if by "Christianity" you mean "People approved by Mike Huckabee" instead of "People who believe in Jesus Christ and try to follow His teachings, like members of the Church of Jesus Christ of Latter-Day Saints." And is AC really taking issue with non-fornication and a preference for not killing people being "Christian" belief? Does his peculiar brand of Christianity promote wild orgies and senseless slaughter? Is he talking about "Christianity" as defined by Jesus "Christ" Johnson, a 1960s pro-war hippie? Not that any of that matters to the many atheists on Slashdot. But if mods are going to mod AC up as "informative," somebody must care.
Seriously, this is why Republicans can't buy an election. It's a party full of bigoted, narrow-minded hillbilly nuts who hate everybody who does not look and think exactly like they do and who use sometimes-legitimate principles as a cover for what often boils down to moronic prejudice. That and they spend money like drunken socialists, totally betraying their core principles. Ah, bugger. The TWO reasons Republicans can't get elected...
Actually, that's not "peculiar." Pretty much every employment contract will have a clause like that (more generous employers will just grab IP "related to your work," but read that broadly). And for the most part, it's enforceable.
There's also a problem with your anonymous contributions. The open source projects you donated code to are now tainted. If your employer decides to sue you for whatever reason, they'll ask in discovery for you to produce all IP you created while employed. Sure, you can lie and hide the stuff you did, and they may not find out. But if they do, you'll get sanctioned, and the judge will not be your friend after that. Bottom line, take those clauses seriously. If you're doing something unrelated and you really don't think your business is interested, get a signed release for your project. Or better yet, tell them up front that you work on unrelated open source projects, and ask them if they'll agree to a narrowly-crafted exclusion in the employment agreement. They may say yes.
I'm a lawyer, but this post isn't legal advice. Don't rely on it for any reason.
The best your terrorist can do is make a dirty bomb with the fissile material. He can't detonate it, and if he tampers with it, he will damage the carefully-machined shell. And if all he's looking for is highly-enriched uranium, there are easier ways to go about it. Also, they're probably right. If the well-funded and paranoid cold war era war machine could not find it, a terrorist is going to have a hard time.
He did. And since no style manual I've ever seen says that's a bad idea---and in fact, many encourage it as the BEST way to start some sentences---there's nothing wrong with it.
Or more cynically, it benefits individual politicians who "donate" massive amounts of forced labor to their favorite contributors. Anything the government sticks its fingers in will be vulnerable to corruption, fraud, and abuse. More government---especially at the federal level---is NOT a good idea.
Because in Texas, about the only person left that you can still sue is a lawyer. And negligent misrepresentation is a valid claim against a lawyer. Meaning that if somebody is so astronomically stupid as to take a post by "Zordak" on Slashdot as legal advice, and it goes badly for him, he could sue me. And then I would file a motion for summary judgment, and point out that there were TWO disclaimers on the post in question, and then I would file a motion for sanctions, and then I would offer my opinion that under Buck v. Bell, the plaintiff almost certainly qualifies for forcible sterilization and that he ought to be so sanctioned.
It's always possible that I'm wrong (I don't usually prosecute biochemical stuff), but I think somebody lied to you. I've never seen or heard of a pharma exception where you're required to do a prior art search before you file a patent. I know that lots of them do, and they file IDS's with hundreds of references sometimes, but that's not because they have to. It's because they want all those references on the face of the patent to make it stronger. Has somebody ever shown you the law that says pharma patents are required to search for prior art? Normally, that's the patent office's job. You're just required to disclose the prior art if you know about it. I'm guessing somebody is passing off internal company policy to you as a patent rule.
Of course, Dudas really has the hots for requiring prior art searches and IDS's characterizing the prior art (meaning, providing a roadmap for a defendant's invalidity argument), but so far the courts have managed to keep him on a leash. And I'm really hoping Obama tosses the guy out on the street and appoints somebody who is maybe even legally qualified. Wouldn't that be awesome! Just think---we could have an actual patent attorney running the patent office again.
Actually, you need to prove that you performed due dilligence to avoid a multiplication of damages. It isn't enough to pretend that patents don't exist; the courts aren't quite that stupid (yet).
This is flat wrong. You have no duty to search for relevant patents. You can only be nailed for willful infringement if you actually knew of the patent you're infringing and did not reasonably believe you didn't infringe. It is up to the plaintiff to prove that you knew about the patent---usually by showing the letter he sent you that says, "You infringe my patent." You then show the letter you got from your patent attorney that says, "My reasonable opinion is you don't infringe this patent," or "My reasonable opinion is that this patent is invalid over X,Y,Z prior art."
Note that willful infringement has nothing to do with whether you infringe. You can infringe and get hit for very substantial damages on a patent you knew nothing about. In that case, searching might have saved you some pain, as you would be aware of what you were facing.
DISCLAIMER: I am a patent attorney, but I don't represent you. This is not legal advice and you don't get to rely on it. Yes, my.sig already says that, but some people turn them off.
Bush never had a fillibuster-proof Republican Senate, and had only slim majorities in the House. You think Bush with a blank check wouldn't have been worse? Seriously, what is with people thinking the Democrats are white knights that are going to come in and erase all the corruption and waste in government if we just trust them with all the power? Concentrating all of the power in either party will invariably end up in people getting screwed. Obama with a blank check will not make this country any better. Obama with a blank check WILL NOT result in individual liberty for you. Obama with a blank check will result in more spending, higher taxes, bigger government, and more power concentrated in Washington, D.C. (for precedent, see Franklin Roosevelt with a blank check). This is what everybody is salivating over?
As for pay in 5 years if you get all your promotions you would make around 110,000. A person with 15 years of experience or a supervisor around 150,000 [a representative to the U.S. house makes 169,000 for comparison, although I would say that most patent examiners are smarter than the House reps but who on slashdot isn't Parent thread excluded). The government couldn't pay more if they wanted to as the top grade level/step is capped by congress for all federal employees.
And here's the real problem. Market rate for a starting associate patent attorney in a law firm is $120,000 -- $150,000 in even moderate markets (DC and NY are more like $175,000, but of course, you have to live there). At five years, depending on how much you bill, you can be pulling in as much as $250,000. And we wonder why there's such high turnover at the USPTO? "Hey, you can come work for us and have unreasonable quotas and spend your vacation catching up on your counts, and we'll pay you like HALF of what you can make in private practice!" What a great deal!
I agree with your post, with a slight correction. These are provisional patent applications, they're not issued, and they grant no rights whatsoever...
I agree with your post, with a slight correction. Provisional patent applications grant almost no rights whatsoever. They grant you the right to stamp "Patent Pending" on your widget.
Yes. The law of patents is what the Federal Circuit says it is (unless the Supreme Court says differently, which happens only occasionally). If the Federal Circuit had said "software is patentable subject matter, and that's final," the USPTO could not reject any software on the basis of subject matter.
Elections should be based on the popular vote, not the outdated electoral college system and electronic voting is really the only way to make it happen.
Why? You say this as though it's a given in no need of support or reasoning.
If you look at the "Related Applications" section, I see something like a score of issued patents in this family, give or take a few. So this is not anything like the "real":CueCat patent. This is a continuation-in-part, meaning they are adding new matter to the original application (some incremental improvement, usually). Apparently, these guys are intent on patenting every little incremental improvement they can think of for their famous failure. Why? Are they stacking their portfolio with an eye to future litigation? If true, that's the real story.
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Really, you need to use it as a generic noun. That means you would have to start calling OTHER mp3 players "iPods." For example, if you say "Check out these cool iPods that SanDisk makes," you would be using iPod as a generic. By the way, if you say that anywhere important, you are sure to draw a nasty letter from Apple's lawyers, as they guard their trademarks like they're the crown jewels. But ultimately, if enough people start using it that way, the TM is dead, despite all your best efforts. Just ask your buddies thermos, aspirin*, linoleum, and trampoline.
*Fun fact: Bayer also lost its trademark on "heroin" to genericization.
This, of course, is not legal advice, and although at least one court has said it's totally okay to do so (meaning, by way of fair warning, that it may be a Rule 11 violation to sue somebody for it in certain jurisdictions), I'm certainly not trying to genericize "iPod" or suggesting that you do so. iPod(R) is a registered trademark of Apple and the proper thing to say is "iPod portable music player."
For those who speak English, however, the English word "virus" takes the plural "viruses," as any dictionary will confirm.
You've obviously never confronted a three-year-old armed with a peanut butter and jelly sandwich.
He would need an explicit assignment back. What's tough for him is that his employer didn't think they owned it, so they saw no need for anybody to assign anything. This guy tried to do everything right, and it still bit him in the end.
Ah, here it is. DDB Tech v. MLB Advanced Media (Fed. Cir. 2008). And commentary by Dennis Crouch. I was wrong. It originated out of the 5th Circuit (Western District of Texas), but it was actually a Federal Circuit decision. So be aware of what you're signing. And if you're concerned, consult a lawyer.
Once again, this post is not legal advice.
I don't see it changing in the near future. Your best bet is to work for companies with more reasonable policies, or be an independent contractor, in which case you have a lot more freedom. It may not be fair, but there is a lot of unfairness in the law.
Lest you think I'm exaggerating, there was a recent case out of the 5th Circuit. I forget the name (maybe I'll look it up tomorrow). But here are the facts: "A" works for Corp. 1 with an employment agreement that covers all intellectual property he develops. A invents an unrelated thing. He goes to his corporate overlords and asks them if they're interested in developing it. They say, "No, that's not our line of business. We're not interested in the invention. You can do it on your own if you want." A and a buddy quit Corp. 1, patent the invention, and form their own startup commercializing it. Corp. 2 steals the idea and starts making it. A and his startup sue Corp. 2. Corp. 2 cleverly goes to Corp. 1 and buys a "quitclaim" title to the invention (meaning, "Whatever interest you have in it, we will buy it from you, even if it turns out to be nothing"). Corp. 2 then claims that they own the patent. The reasoning is that Corp. 1 already owned the invention as soon as A invented it, and their mere lack of interest was insufficient to transfer title back to A. The key was the language in the agreement. Many say, "You agree to transfer all IP you create while employed..." If it had said that, the transfer would have failed to take place when Corp. 1 showed no interest, Corp. 2 would probably be estopped from trying to claim it now on Corp. 1's behalf, and A wins. But here, it said, "You do hereby prospectively transfer all IP you create while employed ..." Since present language caused the transfer to take place immediately upon creation, Corp. 1 owned the invention, regardless of what they told A. And Corp. 2 bought it from Corp. 1. Therefore, Corp. 2 wins.
Is that result "fair"? Maybe not. But it's logically consistent and lets me know what the effect of specific language will be in a contract, which is what the law is (or should be) concerned about. So when I write an employment agreement for a client, guess what language I am now always sure to include?
LargeEvilMegaCorporation will have excessive disclaimers of warranty for all of their code, and you should too. If you're foolish enough to release code without disclaimers, the answer is, "If he had handed it over to us like he was obligated to do, we would have put disclaimers on it before we released it. So he gets to indemnify us."
Especially if by "Christianity" you mean "People approved by Mike Huckabee" instead of "People who believe in Jesus Christ and try to follow His teachings, like members of the Church of Jesus Christ of Latter-Day Saints." And is AC really taking issue with non-fornication and a preference for not killing people being "Christian" belief? Does his peculiar brand of Christianity promote wild orgies and senseless slaughter? Is he talking about "Christianity" as defined by Jesus "Christ" Johnson, a 1960s pro-war hippie? Not that any of that matters to the many atheists on Slashdot. But if mods are going to mod AC up as "informative," somebody must care.
Seriously, this is why Republicans can't buy an election. It's a party full of bigoted, narrow-minded hillbilly nuts who hate everybody who does not look and think exactly like they do and who use sometimes-legitimate principles as a cover for what often boils down to moronic prejudice. That and they spend money like drunken socialists, totally betraying their core principles. Ah, bugger. The TWO reasons Republicans can't get elected...
Actually, that's not "peculiar." Pretty much every employment contract will have a clause like that (more generous employers will just grab IP "related to your work," but read that broadly). And for the most part, it's enforceable.
There's also a problem with your anonymous contributions. The open source projects you donated code to are now tainted. If your employer decides to sue you for whatever reason, they'll ask in discovery for you to produce all IP you created while employed. Sure, you can lie and hide the stuff you did, and they may not find out. But if they do, you'll get sanctioned, and the judge will not be your friend after that. Bottom line, take those clauses seriously. If you're doing something unrelated and you really don't think your business is interested, get a signed release for your project. Or better yet, tell them up front that you work on unrelated open source projects, and ask them if they'll agree to a narrowly-crafted exclusion in the employment agreement. They may say yes.
I'm a lawyer, but this post isn't legal advice. Don't rely on it for any reason.
Also, the HMMWV will now be called the "Shark."
Yeah, but those are just loaners from across the pond.
The best your terrorist can do is make a dirty bomb with the fissile material. He can't detonate it, and if he tampers with it, he will damage the carefully-machined shell. And if all he's looking for is highly-enriched uranium, there are easier ways to go about it. Also, they're probably right. If the well-funded and paranoid cold war era war machine could not find it, a terrorist is going to have a hard time.
He did. And since no style manual I've ever seen says that's a bad idea---and in fact, many encourage it as the BEST way to start some sentences---there's nothing wrong with it.
Or more cynically, it benefits individual politicians who "donate" massive amounts of forced labor to their favorite contributors. Anything the government sticks its fingers in will be vulnerable to corruption, fraud, and abuse. More government---especially at the federal level---is NOT a good idea.
Because in Texas, about the only person left that you can still sue is a lawyer. And negligent misrepresentation is a valid claim against a lawyer. Meaning that if somebody is so astronomically stupid as to take a post by "Zordak" on Slashdot as legal advice, and it goes badly for him, he could sue me. And then I would file a motion for summary judgment, and point out that there were TWO disclaimers on the post in question, and then I would file a motion for sanctions, and then I would offer my opinion that under Buck v. Bell, the plaintiff almost certainly qualifies for forcible sterilization and that he ought to be so sanctioned.
It's always possible that I'm wrong (I don't usually prosecute biochemical stuff), but I think somebody lied to you. I've never seen or heard of a pharma exception where you're required to do a prior art search before you file a patent. I know that lots of them do, and they file IDS's with hundreds of references sometimes, but that's not because they have to. It's because they want all those references on the face of the patent to make it stronger. Has somebody ever shown you the law that says pharma patents are required to search for prior art? Normally, that's the patent office's job. You're just required to disclose the prior art if you know about it. I'm guessing somebody is passing off internal company policy to you as a patent rule.
Of course, Dudas really has the hots for requiring prior art searches and IDS's characterizing the prior art (meaning, providing a roadmap for a defendant's invalidity argument), but so far the courts have managed to keep him on a leash. And I'm really hoping Obama tosses the guy out on the street and appoints somebody who is maybe even legally qualified. Wouldn't that be awesome! Just think---we could have an actual patent attorney running the patent office again.
Like I said, that's not true.
This is flat wrong. You have no duty to search for relevant patents. You can only be nailed for willful infringement if you actually knew of the patent you're infringing and did not reasonably believe you didn't infringe. It is up to the plaintiff to prove that you knew about the patent---usually by showing the letter he sent you that says, "You infringe my patent." You then show the letter you got from your patent attorney that says, "My reasonable opinion is you don't infringe this patent," or "My reasonable opinion is that this patent is invalid over X,Y,Z prior art."
Note that willful infringement has nothing to do with whether you infringe. You can infringe and get hit for very substantial damages on a patent you knew nothing about. In that case, searching might have saved you some pain, as you would be aware of what you were facing.
DISCLAIMER: I am a patent attorney, but I don't represent you. This is not legal advice and you don't get to rely on it. Yes, my .sig already says that, but some people turn them off.
Bush never had a fillibuster-proof Republican Senate, and had only slim majorities in the House. You think Bush with a blank check wouldn't have been worse? Seriously, what is with people thinking the Democrats are white knights that are going to come in and erase all the corruption and waste in government if we just trust them with all the power? Concentrating all of the power in either party will invariably end up in people getting screwed. Obama with a blank check will not make this country any better. Obama with a blank check WILL NOT result in individual liberty for you. Obama with a blank check will result in more spending, higher taxes, bigger government, and more power concentrated in Washington, D.C. (for precedent, see Franklin Roosevelt with a blank check). This is what everybody is salivating over?
And here's the real problem. Market rate for a starting associate patent attorney in a law firm is $120,000 -- $150,000 in even moderate markets (DC and NY are more like $175,000, but of course, you have to live there). At five years, depending on how much you bill, you can be pulling in as much as $250,000. And we wonder why there's such high turnover at the USPTO? "Hey, you can come work for us and have unreasonable quotas and spend your vacation catching up on your counts, and we'll pay you like HALF of what you can make in private practice!" What a great deal!
I agree with your post, with a slight correction. Provisional patent applications grant almost no rights whatsoever. They grant you the right to stamp "Patent Pending" on your widget.
Yes. The law of patents is what the Federal Circuit says it is (unless the Supreme Court says differently, which happens only occasionally). If the Federal Circuit had said "software is patentable subject matter, and that's final," the USPTO could not reject any software on the basis of subject matter.
Why? You say this as though it's a given in no need of support or reasoning.
If you look at the "Related Applications" section, I see something like a score of issued patents in this family, give or take a few. So this is not anything like the "real" :CueCat patent. This is a continuation-in-part, meaning they are adding new matter to the original application (some incremental improvement, usually). Apparently, these guys are intent on patenting every little incremental improvement they can think of for their famous failure. Why? Are they stacking their portfolio with an eye to future litigation? If true, that's the real story.
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