You're going to make this monumental claim---that the Presidency of the United States, arguably the most powerful position in the world, was outright STOLEN by the incumbent---and the best authority you can muster is... Rolling Stone?
You're right about one thing. Spread-the-Wealth-Around Democrats are not going to fix things anymore than Dont-Tax-and-Still-Spend Republicans. They are all the Party of Big Government.
Everyone has committed a number a crimes throughout their lifetime, even if they don't know it, due to the large number of laws on the books.
Ummm, you do realize that most crimes (especially the relatively minor ones that you probably committed without knowing it) have statutes of limitation, don't you? Unless you're thinking, "Oh crap, I totally forgot about that time I murdered somebody back in '98!"
Get ready to shell out some money. I think to compile the examples in Cobol for Dummies, you need a copy of Microsoft Visual Cobol. Those licenses aren't cheap.
I guess I should have made clear that I was absolutely not defending the actions in this case. I did, after all, say "within the bounds of law and ethics." From what I've read of these cases, that ship sailed with the very first complaint. I was responding to a poster who wanted to smear the entire legal profession as a bunch of hired thugs without principles. That I had to disagree with. Most of the lawyers I know are good, hard-working, honest people.
I'm not going to lecture NYCL on legal ethics. But let me at least illustrate what I'm saying with a less emotionally-charged example, because I suspect you will agree with me. I am not, in general, a fan of software patents. But I have plenty of clients who bring me inventions that involve software. Under the current state of the law, they are entitled to software claims in their patent applications, so I write software claims with just enough physical structure that I am not claiming a "signal." As I said above, if I had serious problems with this, I could decline representation or refer the client to another attorney who is okay writing software claims. But it would be unethical for me to hide from the client the fact that, under the current state of the law, he is entitled to software claims, and thereby prejudice his right to get them. And it would be impractical---especially if I want to continue to prosecute patents in the field of electrical engineering---to say that I will never take a case with a software claim.
Similarly, if I file a trademark complaint, I will broadly allege many things on information and belief that I don't know for sure are true
(for example, when was the last time you saw a trademark that was not alleged to be "famous" for purposes of dilution). This is not to mislead anybody. It's to preserve my right to press those arguments if they turn out to be important. The defendant's only burden in response is to say "Prove it." In discovery, the truly important issues will come into focus, and we'll concentrate on those and trim the cruft. If it turns out I have enough evidence to support an argument that the mark in question is famous, I will argue dilution, even though I don't like the dilution statute. It's exactly what I expect from opposing counsel, and it's what I would expect my attorney to do for me.
So no, we are not slaves to our clients. But nor are we philosophers (unless we're Con Law professors, which I am not). I think that I can be both pragmatic and principled. I don't believe those are mutually exclusive. I doubt that you believe that they are, but if you do, then I will respectfully disagree.
P.S. I think your work in these cases is outstanding. You're a credit to the profession.
I believe the current approach in legal training and education is that -anything- in support of the client's position is permissable.
Really? What law school did you attend where they taught you that? Oh, I see. You didn't attend law school. In fact, you don't know anything about the law. You're just trying to sound "insightful" to all the mods who are just as clueless as you are.
In the law school I attended, we were taught that you are obligated to advocate zealously for your clients, meaning that if there is a position favorable to your client, you take it as long as you can do so within the bounds of law and ethics. You don't get to pick and choose which arguments personally give you a warm fuzzy or agree with the law review article you're working on. If there is a position you disagree with so strongly that you cannot or will not effectively advocate it, you should withdraw so somebody else can do it. The worst thing you can do is lamely throw it out there and not defend it so it gets killed. That would be a very serious ethical violation. You are not in court representing a principle. You are representing a client. Know what you call a lawyer who puts his personal crusades ahead of representing clients? Jack Thompson.
How specific is this patent?
Does it cover only docks at the bottom of the screen?
I'm not going to read all 129 claims, but a quick glance seems to indicate they all include resizing an icon and moving the others to accomodate the resized icon.
I'm usually the one standing up to defend the patent system, but I've got to say, claim 1 is astoundingly broad. I'm stunned that the examiner couldn't find any prior art on this.
Of course, the real value of this patent is it has 129 claims, meaning it would cost a fortune to get a non-infringement opinion from an attorney. And that, of course, is the whole idea. Maybe you can invalidate some of the claims. Maybe you can be pretty sure you don't infringe some of the claims. But if they throw enough spaghetti at you, chances are they can get some of it to stick.
In case you have.sigs disabled: This post is not legal advice.
I could accept a patent system IFF there was a presumption that independent re-invention proved obviousness
It's not a presumption, but that is one of the factors of obviousness a court can consider.
deliberate disclosure of one's own patents without a WARNING/NDA in advance was a crime (to prevent patent holders from trying to poison the well)
Most countries have an "absolute novelty" requirement. If you disclose your patent publicly before you file, you can't get a patent. The U.S. has a one-year "grace period," which I think is pretty reasonable. And most patents get published 18 months after their earliest filing date.
I would also say that if a competent engineer in the field couldn't replicate the invention without additional research just by reading the patent, it's void.
And you would be right (well, almost). See 35 U.S.C. s. 112, par. 1. Technically, the patent is unenforceable, not void.
To me, this actually sounds like some worked their butts off to actually do something useful and then someone else saw a passing similarity to something they did once (but then left to rot somewhere) and decided to cash in.
I haven't looked at this case in detail, but my guess is that it's more than a "passing resemblance." The court found infringement on summary judgment, and the Fed. Cir. upheld it. That has to be a pretty compelling case for infringement. If somebody infringes your valid and enforceable patent, you're entitled to legal relief, even if the other guy worked really hard.
It's noteworthy that many attorneys advise engineers to NEVER look at patents because it could drastically increase liability if they should happen to see one vaguely similar to anything they have implemented even if the dense patentese kept them from recognizing it.
Well, I am not "many attorneys," I'm just "one attorney." But I encourage my clients to look at as many patents as possible. Then they have an idea at the outset whether they are walking into a minefield or not (it also helps to have a reasonable idea of what you can claim so you are not wasting your first office action on straightforward 102(b) rejections). If they come across something that looks too close for comfort, they get me involved. They can usually read the specification at least as well as I can. I dissect the "dense patentese" (the claims) to tell them if they are infringing. But all of that is orthogonal to the question of infringement. It just has to do with whether they wilfully infringed. And after Seagate, it's pretty hard to make out willful infringement.
There are problems with the current patent field (including the fact that obvious patents are still issuing), but I think it is not quite as bad as you think. The real problem is that there are a few bad apples who screw it up for everybody else (which is usually the case).
You're right. This was hardly a big victory for Buffalo:
On appeal, we affirm the district court's summary judgment rulings in all but one respect. With respect to the issue of validity, we uphold the court's entry of summary judgment that the '069 patent was not anticipated. We also uphold the district court's entry of summary judgment that the '069 patent was not invalid because of the addition of new matter to the application or because the asserted claims lacked a sufficient written description in the original specification. With respect to the issue of obviousness, however, we conclude that the district court erred by entering summary judgment against Buffalo because we hold that there was a disputed issue of material fact as to whether the prior art references that were before the district court were combinable in a manner that would have rendered the asserted claims of the '069 patent obvious. Although we vacate the summary judgment of obviousness, we have nonetheless addressed the issue of infringement, on which the district court entered summary judgment against Buffalo, because that issue will continue to be important to the ultimate disposition of the case unless the claims are held to be invalid for obviousness. As to that issue, we uphold the district court's summary judgment of infringement.
The district court found (on summary judgment) that the patent was not anticipated, valid, not obvious, and infringed. Even for the E.D. Tex., that's a lot to hold on summary judgment, and usually indicates it's a pretty blatant case. The Fed. Cir. upheld all of those findings except obviousness. It did not hold (contrary to the summary) that the patent was invalid. It held that there was an issue of material fact as to obviousness that the district court would need to try to a fact finder. If the district court finds, on remand, that the patent is non-obvious, then Buffalo loses.
I know there's a huge anti-patent sentiment around here, but patents are my bread and butter, and I tend to believe that there are such things as valid patents. I haven't looked at this patent specifically, but if somebody has a slam dunk argument for why the specific claims at issue are obvious, I'd honestly be interested to hear it. I hate obvious patent too---probably more than you, because I have to litigate against them, fighting the presumption that they're valid with lots of money on the line. But this sounds more like a case where a lot of people are upset that they couldn't get something they liked because it infringed a possibly-valid patent. That is really just the price we pay to have patents at all. Some of the people here will disagree with the whole concept(many will accompany their disagreement with vitriol and poor grammar). But I don't think that a trade secret-only world would be any better.
So somebody tell me, what is obvious about this patent? I'd be interested to know.
You're partly right, partly wrong. Registration does not grant you a copyright; that attaches automatically. But without a registration, you cannot sue on a copyright, and if you didn't register before the infringement took place, you don't get the statutory damages and attorneys' fees (which is what I said in the first place).
Okay, this isn't even being overly pedantic. This is just basic vocabulary. Penultimate means next to last, so you seem to be implying that the personal automobile is the penultimate mode of transportation, since you seem to be pining for the final (i.e., ultimate) utopian mode of transportation. And for future reference, M-W still has a free basic dictionary, which is really easy to use.
You can get the portion of the infringer's profits attributable to the infringed work as actual damages. So if Microsoft infringes your copyright and puts your stuff in Windows, and you can attribute 1/10 of 1% of the value of windows to your software, you can get 1/10 of 1% of their profit from Windows. Which I'm sure I could easily retire on. Again, totally different from contract, where you don't get to touch the other guy's "ill-gotten gains," because in contract, nothing is considered "ill-gotten."
So all told, Copyright is not a bad deal for the copyright holder.
Actually, this decision was just the opposite. Being "in it for the Benjamins" only matters if it fell under contract law. The law recognizes "efficient breach" of contract, meaning you can (theoretically) safely breach a contract as long as you make the other party whole. For example, I agree to sell you 100 widgets at $5/ea., but somebody is so desperate for widgets, he offers me $10/ea. I sell to him instead, and because of the exigency, you have to go out and buy widgets at $7/ea. If I pay you $200, the law says you don't get to complain anymore. You got 100 widgets at an effective price of $500. The fact that I also made $300 in the deal means everybody's resources were used more efficiently.
On the other hand, as you pointed out, copyright is not to make parties "whole." It is to promote the progress of science and useful arts. So we have things like statutory damages. If you give away your program for free to everybody who agrees to an open source license, and somebody takes it and violates that license, contract theories would say you're entitled to $0 (efficient breach). But that discourages "progress." So instead, the law says, if somebody infringes your copyright, and it's registered when they start infringing, you don't have to prove any damages at all. The court can award you between $750 and $30,000 for each work infringed, and up to $150,000 if the infringement was willful (as appears to be the case in Jacobsen). Again, register your copyrights if it's important. Also, the courts are very liberal with things like permanent injunctions, even if the copyrights weren't registered before the infringement. So while $150,000 would be chump change to Microsoft if they infringed your copyright, your ability to get an injunction against their sale of Windows would certainly get their attention.
A copyright registration covers just what is in the registration. To be really safe, it's best to drop the $35 to register each important release. If the changes between A and B are so minimal that if somebody infringed B, you could successfully sue based on what's in the registration for A, you may be okay just with your registration of A. In any case, put a copyright notice on everything. It's free, and it's valid, even if you haven't registered yet. Put "(C) 2008, Just Some Guy, all rights reserved" on everything you write.
This was an appeals court decision. The appeals court doesn't decide all those things. The legal issue was whether the license was enforceable under copyright law, or whether it was a "mere covenant," meaning that Jacobsen would get nothing because he was not making money off the software. The lower court had ruled that it was a mere covenant. On appeal, the Federal Circuit vacated that ruling, which means it now goes back to the trial court to apply the "correct" law as announced by the Fed. Cir.
Two takeaway lessons, one for Big Business, and one for developers. For Big Business, you can't infringe on the copyrights of open source developers with impunity. For developers, even if you are doing open source software, REGISTER YOUR COPYRIGHT. If you register your copyright up front, you can get statutory damages and attorney fees if some idiot from Big Business decides to try this kind of stunt. Those damages are almost always more than the "actual" damages you'll get for software that you give away for free (as in beer). If you wait until after somebody infringes before you file your copyright, it's too late. And registering is cheap and easy. In many cases, you don't even need to get an attorney involved (although if you need a patent or trademark or help with a copyright, I know this really great IP attorney who also posts on Slashdot and is clued in on open source.
And despite the stuff above that may look like 'advice" to the untrained eye, this post absolutely, positively is NOT legal advice.
Okay, congratulations, you've proved you have free Westlaw access, which means you're a student (but shame on your for not having Blue Book-correct cites; I hope you're not on Law Review), and so you deserve a little more respect that J. Random Slashdotter who thinks he knows the law. But you still have yet to refute my original point, which is that the 10th Amendment does not "just leave the rest alone." It says "the rest doesn't belong to the Federal government." Sure, you've shown that you favor a more expansive Commerce Clause than I do, but that's orthogonal to my point, which is that the 10th Amendment does, in fact, say something about it ("strong" teeth is your phrase, not mine). You're talking about matters of degree, which are up for reasonable debate. But like I pointed out, the fact that probably 9 out of 10 people in the U.S. don't even know there is such a thing as a 10th amendment is a pretty good indication to me that we've screwed it up. In any case, all constitutional theorists agree that the states have some powers reserved to them (if you can dig up a single remotely credible scholar who says otherwise, I'd like to see it; even Ginsburg will occasionally defer to the autonomy of the states).
Now, setting aside my original point (which I think I may have mentioned you failed to address in your eagerness to unleash your KeyCite prowess), you raise some interesting philosophical points. Is there such a thing as "constitutional in the abstract?" Or is the Supreme Court always right because they go last? Is three generations of imbeciles enough because the Chief said so in Buck v. Bell? Or is it possible he's wrong, even if four guys in black robes agree with him? (Remember, Buck v. Bell hasn't been reversed, so eugenic sterilization is still constitutional). And what was that case with the separated parents and some random guy knockin' up mom, but the estranged husband was the father (it has nothing to do with the conversation, but it was kind of amusing in an embarassing Jerry Springer kind of way). Perhaps you and I just disagree about this on a fundamental level. I can certainly grant you that it's the law of the land, and I'm not saying toss out Marbury v. Madison. But Carnival Cruise Lines is the law of the land too, and that was kind of dumb (I'm sure you remember this case; it can't have been very long since you took Civ Pro) (and I'm even a fairly strong freedom of contract proponent). But then, I am also a loon, as you say. I'm not even entirely sure I agree with the vague "Correlative Rights" doctrine of Crandall v. Nevada. Even for a results-oriented decision, it seemed sort of unnecessary to make stuff up when they could have disposed of the case on Congress's plenary authority over interstate commerce. And don't get me started on the contortions we've had to do with privileges and/or immunities to avoid complete incorporation.
So I've got this loony theory that maybe the federal government should just do the stuff we told it to do in the Constitution, and then we should pretty much leave the states alone to govern themselves so the local people can have some control over their own communities, unless they want to do something in violation of the constitution (because, you know, privileges, immunity, the first eight amendments, Rep. Bingham and all that jazz). It's actually a pretty radical theory, especially if you're taking Con Law from the Ghost of William Brennan, as you apparently are. And really, I'm the first loon to think of it, except a couple of nobodies like Hugo Black and Oliver Wendell Holmes, and (really, if you break it down) John Marshall. And Scalia and Thomas to an extent. And we'll see about Alito.
So bottom line, there is a 10th amendment, you haven't proved otherwise, we disagree on a bunch of stuff that reasonable people can disagree on, you don't get full cites from me because some of us have to pay for Westlaw access, William Brennan is dead, and Hugo Black pwns a11 u SUXORZ!
To quote the parent poster you so valiantly defend:
That's the thing about the Constitution; it has a few rights that it explicitly guarantees, and it has a few rights that it specifically removes, and everything else it leaves alone.
Like I said, this statement is unequivocally false. And despite your stunning ability to look up cases on the internet, the Congress still has to give lip service to a grant of authority before it passes a law. Usually it's the Commerce Clause, which after Wickard v. Filburn is ridiculously broad, but the Rhenquist court did manage to reign it in just a little bit. So no, Congress can't just go off willy nilly and do whatever it wants.
There is absolutely nothing in the bailout plan that was unconstitutional.
Then it's a good thing I never said there was. In fact, the ill-advised bailout is one of the most direct regulations of interstate commerce I can think of. Stupid, yes. Unconstitutional, no.
And I stand by my analysis of the New Deal. Everybody knew it was unconstitutional. They just decided it was so extraordinarily important that they were going to do it anyway. Similarly, everybody knows this bailout is stupid. We just think it's so extraordinarily important that we're told we should do it anyway.
Unfortunately, your understanding of the constitution is fundamentally flawed. It has a few things that it explicitly tells the federal government it can do, and the 10th amendment says, "If we didn't explicitly say you can do it, it's none of your business." Now for the states, your analysis is closer. If it doesn't say you can't do it, the states can do it. The fact that your misconception seems to be widely held is the best indication that we've really screwed up. And guess when we started doing things like social security and federal welfare programs that were so glaringly unconstitutional the president had to threaten to stack the Court before the Supremes backed down and let him have his way? It was the last time we had a big economic crisis, and FDR decided to "fix" it. And now, we spend 2/3 of our federal budget on programs that were supposed to "fix" the economy 70 or 80 years ago. Personally, I'd rather have a couple of lousy years while we get our act together than pay for this for the next 70 or 80 years. Maybe if it's bad enough, we'll learn from our mistakes.
It's called declaratory judgment, and it's done all the time, for lots of reasons. For example, if i sue on DJ, I get to pick the venue instead of the other guy.
Your post is cheeky and funny, but I would like to point out that in the legal arena, Jones Day is friggin' HUGE. These guys are not some two-bit operation. And yes, they do carry a reputation for pretentiousness and all-around snobbery* (I offer no opinion on whether it's deserved). That said, I know somebody who is an associate there (not in Chicago, though), and she's a brilliant and ethical attorney. So they're not all like this. The truth is, I work for a firm a little more than a tenth of their size, and you don't usually know what the guy down the hall is doing; much less the guy across the country. So if you meet a Jones Day attorney, remember, they're not all evil. Just the ones who filed this suit.
*This is my personal opinion and is not reflective of my firm's or anybody else's opinion.
In most other western countries the Democrats would be considered at best a centrist party but more likely a right wing party
I hear this repeated so much, but I don't think I'm aware of a single Continental policy that is truly so "liberal" that our Democrats* wouldn't support it given the chance. It's true that they aren't as effective at passing strong liberal policies, because they have Republican "loonies" opposing them. But that doesn't mean they don't WANT things like universal health care. Similarly, the Republicans* would destroy all state consumer protection laws and pass sweeping federal tort reform (regardless of the question of constitutionality) given the opportunity. It's not that they don't want to; it's that they can't because there's somebody pushing back. Please---and I'm serious here---somebody show me a European policy that is colorable as a liberal cause, but is so liberal the Washington Democrats would shoot it down, even if they had the chance to pass it.
*Yes, I know you're thinking of some individual Democrats or Republicans that wouldn't do this. But as a body, I believe this is true. Give either party free reign, and this is where they would go.
Either you're a leftist troll, or somebody with a big heart who has simply been seriously deceived by the Establishment. You might want to check out this pie chart. We spend about 2/3 of our budget on "programs of [pretended] social uplift." These programs do not, for the most part, "uplift" people. But they do ensure that Democrats keep getting elected. Which is their real purpose.
There are programs designed to ensure Republicans get re-elected too. They're just as evil, but not nearly as expensive.
Slashdot Mirror
... Because INTERCAL is just too user friendly.
You're going to make this monumental claim---that the Presidency of the United States, arguably the most powerful position in the world, was outright STOLEN by the incumbent---and the best authority you can muster is ... Rolling Stone?
You're right about one thing. Spread-the-Wealth-Around Democrats are not going to fix things anymore than Dont-Tax-and-Still-Spend Republicans. They are all the Party of Big Government.
Ummm, you do realize that most crimes (especially the relatively minor ones that you probably committed without knowing it) have statutes of limitation, don't you? Unless you're thinking, "Oh crap, I totally forgot about that time I murdered somebody back in '98!"
Okay, I thought I was joking, but apparently, somebody really has a Cobol implementation in VS. This unholy union is clearly the work of Satan.
When I see Visual x86 Assembly for .NET, I'm going to have to smash something.
Get ready to shell out some money. I think to compile the examples in Cobol for Dummies, you need a copy of Microsoft Visual Cobol. Those licenses aren't cheap.
I guess I should have made clear that I was absolutely not defending the actions in this case. I did, after all, say "within the bounds of law and ethics." From what I've read of these cases, that ship sailed with the very first complaint. I was responding to a poster who wanted to smear the entire legal profession as a bunch of hired thugs without principles. That I had to disagree with. Most of the lawyers I know are good, hard-working, honest people.
I'm not going to lecture NYCL on legal ethics. But let me at least illustrate what I'm saying with a less emotionally-charged example, because I suspect you will agree with me. I am not, in general, a fan of software patents. But I have plenty of clients who bring me inventions that involve software. Under the current state of the law, they are entitled to software claims in their patent applications, so I write software claims with just enough physical structure that I am not claiming a "signal." As I said above, if I had serious problems with this, I could decline representation or refer the client to another attorney who is okay writing software claims. But it would be unethical for me to hide from the client the fact that, under the current state of the law, he is entitled to software claims, and thereby prejudice his right to get them. And it would be impractical---especially if I want to continue to prosecute patents in the field of electrical engineering---to say that I will never take a case with a software claim.
Similarly, if I file a trademark complaint, I will broadly allege many things on information and belief that I don't know for sure are true (for example, when was the last time you saw a trademark that was not alleged to be "famous" for purposes of dilution). This is not to mislead anybody. It's to preserve my right to press those arguments if they turn out to be important. The defendant's only burden in response is to say "Prove it." In discovery, the truly important issues will come into focus, and we'll concentrate on those and trim the cruft. If it turns out I have enough evidence to support an argument that the mark in question is famous, I will argue dilution, even though I don't like the dilution statute. It's exactly what I expect from opposing counsel, and it's what I would expect my attorney to do for me.
So no, we are not slaves to our clients. But nor are we philosophers (unless we're Con Law professors, which I am not). I think that I can be both pragmatic and principled. I don't believe those are mutually exclusive. I doubt that you believe that they are, but if you do, then I will respectfully disagree.
P.S. I think your work in these cases is outstanding. You're a credit to the profession.
Really? What law school did you attend where they taught you that? Oh, I see. You didn't attend law school. In fact, you don't know anything about the law. You're just trying to sound "insightful" to all the mods who are just as clueless as you are.
In the law school I attended, we were taught that you are obligated to advocate zealously for your clients, meaning that if there is a position favorable to your client, you take it as long as you can do so within the bounds of law and ethics. You don't get to pick and choose which arguments personally give you a warm fuzzy or agree with the law review article you're working on. If there is a position you disagree with so strongly that you cannot or will not effectively advocate it, you should withdraw so somebody else can do it. The worst thing you can do is lamely throw it out there and not defend it so it gets killed. That would be a very serious ethical violation. You are not in court representing a principle. You are representing a client. Know what you call a lawyer who puts his personal crusades ahead of representing clients? Jack Thompson.
I'm not going to read all 129 claims, but a quick glance seems to indicate they all include resizing an icon and moving the others to accomodate the resized icon.
I'm usually the one standing up to defend the patent system, but I've got to say, claim 1 is astoundingly broad. I'm stunned that the examiner couldn't find any prior art on this.
Of course, the real value of this patent is it has 129 claims, meaning it would cost a fortune to get a non-infringement opinion from an attorney. And that, of course, is the whole idea. Maybe you can invalidate some of the claims. Maybe you can be pretty sure you don't infringe some of the claims. But if they throw enough spaghetti at you, chances are they can get some of it to stick.
In case you have .sigs disabled: This post is not legal advice.
It's not a presumption, but that is one of the factors of obviousness a court can consider.
Most countries have an "absolute novelty" requirement. If you disclose your patent publicly before you file, you can't get a patent. The U.S. has a one-year "grace period," which I think is pretty reasonable. And most patents get published 18 months after their earliest filing date.
And you would be right (well, almost). See 35 U.S.C. s. 112, par. 1. Technically, the patent is unenforceable, not void.
I haven't looked at this case in detail, but my guess is that it's more than a "passing resemblance." The court found infringement on summary judgment, and the Fed. Cir. upheld it. That has to be a pretty compelling case for infringement. If somebody infringes your valid and enforceable patent, you're entitled to legal relief, even if the other guy worked really hard.
Well, I am not "many attorneys," I'm just "one attorney." But I encourage my clients to look at as many patents as possible. Then they have an idea at the outset whether they are walking into a minefield or not (it also helps to have a reasonable idea of what you can claim so you are not wasting your first office action on straightforward 102(b) rejections). If they come across something that looks too close for comfort, they get me involved. They can usually read the specification at least as well as I can. I dissect the "dense patentese" (the claims) to tell them if they are infringing. But all of that is orthogonal to the question of infringement. It just has to do with whether they wilfully infringed. And after Seagate, it's pretty hard to make out willful infringement.
There are problems with the current patent field (including the fact that obvious patents are still issuing), but I think it is not quite as bad as you think. The real problem is that there are a few bad apples who screw it up for everybody else (which is usually the case).
... to have "friends" on Facebook, you insensitive clod.
The district court found (on summary judgment) that the patent was not anticipated, valid, not obvious, and infringed. Even for the E.D. Tex., that's a lot to hold on summary judgment, and usually indicates it's a pretty blatant case. The Fed. Cir. upheld all of those findings except obviousness. It did not hold (contrary to the summary) that the patent was invalid. It held that there was an issue of material fact as to obviousness that the district court would need to try to a fact finder. If the district court finds, on remand, that the patent is non-obvious, then Buffalo loses.
I know there's a huge anti-patent sentiment around here, but patents are my bread and butter, and I tend to believe that there are such things as valid patents. I haven't looked at this patent specifically, but if somebody has a slam dunk argument for why the specific claims at issue are obvious, I'd honestly be interested to hear it. I hate obvious patent too---probably more than you, because I have to litigate against them, fighting the presumption that they're valid with lots of money on the line. But this sounds more like a case where a lot of people are upset that they couldn't get something they liked because it infringed a possibly-valid patent. That is really just the price we pay to have patents at all. Some of the people here will disagree with the whole concept(many will accompany their disagreement with vitriol and poor grammar). But I don't think that a trade secret-only world would be any better.
So somebody tell me, what is obvious about this patent? I'd be interested to know.
You're partly right, partly wrong. Registration does not grant you a copyright; that attaches automatically. But without a registration, you cannot sue on a copyright, and if you didn't register before the infringement took place, you don't get the statutory damages and attorneys' fees (which is what I said in the first place).
Okay, this isn't even being overly pedantic. This is just basic vocabulary. Penultimate means next to last, so you seem to be implying that the personal automobile is the penultimate mode of transportation, since you seem to be pining for the final (i.e., ultimate) utopian mode of transportation. And for future reference, M-W still has a free basic dictionary, which is really easy to use.
And one more thing...
You can get the portion of the infringer's profits attributable to the infringed work as actual damages. So if Microsoft infringes your copyright and puts your stuff in Windows, and you can attribute 1/10 of 1% of the value of windows to your software, you can get 1/10 of 1% of their profit from Windows. Which I'm sure I could easily retire on. Again, totally different from contract, where you don't get to touch the other guy's "ill-gotten gains," because in contract, nothing is considered "ill-gotten."
So all told, Copyright is not a bad deal for the copyright holder.
Actually, this decision was just the opposite. Being "in it for the Benjamins" only matters if it fell under contract law. The law recognizes "efficient breach" of contract, meaning you can (theoretically) safely breach a contract as long as you make the other party whole. For example, I agree to sell you 100 widgets at $5/ea., but somebody is so desperate for widgets, he offers me $10/ea. I sell to him instead, and because of the exigency, you have to go out and buy widgets at $7/ea. If I pay you $200, the law says you don't get to complain anymore. You got 100 widgets at an effective price of $500. The fact that I also made $300 in the deal means everybody's resources were used more efficiently.
On the other hand, as you pointed out, copyright is not to make parties "whole." It is to promote the progress of science and useful arts. So we have things like statutory damages. If you give away your program for free to everybody who agrees to an open source license, and somebody takes it and violates that license, contract theories would say you're entitled to $0 (efficient breach). But that discourages "progress." So instead, the law says, if somebody infringes your copyright, and it's registered when they start infringing, you don't have to prove any damages at all. The court can award you between $750 and $30,000 for each work infringed, and up to $150,000 if the infringement was willful (as appears to be the case in Jacobsen). Again, register your copyrights if it's important. Also, the courts are very liberal with things like permanent injunctions, even if the copyrights weren't registered before the infringement. So while $150,000 would be chump change to Microsoft if they infringed your copyright, your ability to get an injunction against their sale of Windows would certainly get their attention.
A copyright registration covers just what is in the registration. To be really safe, it's best to drop the $35 to register each important release. If the changes between A and B are so minimal that if somebody infringed B, you could successfully sue based on what's in the registration for A, you may be okay just with your registration of A. In any case, put a copyright notice on everything. It's free, and it's valid, even if you haven't registered yet. Put "(C) 2008, Just Some Guy, all rights reserved" on everything you write.
Yeah, but can we trust a review by a bunch of nobodies? I mean, it's not like they had a Brian Kernighan on the team ... oh, wait.
This was an appeals court decision. The appeals court doesn't decide all those things. The legal issue was whether the license was enforceable under copyright law, or whether it was a "mere covenant," meaning that Jacobsen would get nothing because he was not making money off the software. The lower court had ruled that it was a mere covenant. On appeal, the Federal Circuit vacated that ruling, which means it now goes back to the trial court to apply the "correct" law as announced by the Fed. Cir.
Two takeaway lessons, one for Big Business, and one for developers. For Big Business, you can't infringe on the copyrights of open source developers with impunity. For developers, even if you are doing open source software, REGISTER YOUR COPYRIGHT. If you register your copyright up front, you can get statutory damages and attorney fees if some idiot from Big Business decides to try this kind of stunt. Those damages are almost always more than the "actual" damages you'll get for software that you give away for free (as in beer). If you wait until after somebody infringes before you file your copyright, it's too late. And registering is cheap and easy. In many cases, you don't even need to get an attorney involved (although if you need a patent or trademark or help with a copyright, I know this really great IP attorney who also posts on Slashdot and is clued in on open source.
And despite the stuff above that may look like 'advice" to the untrained eye, this post absolutely, positively is NOT legal advice.
Okay, congratulations, you've proved you have free Westlaw access, which means you're a student (but shame on your for not having Blue Book-correct cites; I hope you're not on Law Review), and so you deserve a little more respect that J. Random Slashdotter who thinks he knows the law. But you still have yet to refute my original point, which is that the 10th Amendment does not "just leave the rest alone." It says "the rest doesn't belong to the Federal government." Sure, you've shown that you favor a more expansive Commerce Clause than I do, but that's orthogonal to my point, which is that the 10th Amendment does, in fact, say something about it ("strong" teeth is your phrase, not mine). You're talking about matters of degree, which are up for reasonable debate. But like I pointed out, the fact that probably 9 out of 10 people in the U.S. don't even know there is such a thing as a 10th amendment is a pretty good indication to me that we've screwed it up. In any case, all constitutional theorists agree that the states have some powers reserved to them (if you can dig up a single remotely credible scholar who says otherwise, I'd like to see it; even Ginsburg will occasionally defer to the autonomy of the states).
Now, setting aside my original point (which I think I may have mentioned you failed to address in your eagerness to unleash your KeyCite prowess), you raise some interesting philosophical points. Is there such a thing as "constitutional in the abstract?" Or is the Supreme Court always right because they go last? Is three generations of imbeciles enough because the Chief said so in Buck v. Bell? Or is it possible he's wrong, even if four guys in black robes agree with him? (Remember, Buck v. Bell hasn't been reversed, so eugenic sterilization is still constitutional). And what was that case with the separated parents and some random guy knockin' up mom, but the estranged husband was the father (it has nothing to do with the conversation, but it was kind of amusing in an embarassing Jerry Springer kind of way). Perhaps you and I just disagree about this on a fundamental level. I can certainly grant you that it's the law of the land, and I'm not saying toss out Marbury v. Madison. But Carnival Cruise Lines is the law of the land too, and that was kind of dumb (I'm sure you remember this case; it can't have been very long since you took Civ Pro) (and I'm even a fairly strong freedom of contract proponent). But then, I am also a loon, as you say. I'm not even entirely sure I agree with the vague "Correlative Rights" doctrine of Crandall v. Nevada. Even for a results-oriented decision, it seemed sort of unnecessary to make stuff up when they could have disposed of the case on Congress's plenary authority over interstate commerce. And don't get me started on the contortions we've had to do with privileges and/or immunities to avoid complete incorporation.
So I've got this loony theory that maybe the federal government should just do the stuff we told it to do in the Constitution, and then we should pretty much leave the states alone to govern themselves so the local people can have some control over their own communities, unless they want to do something in violation of the constitution (because, you know, privileges, immunity, the first eight amendments, Rep. Bingham and all that jazz). It's actually a pretty radical theory, especially if you're taking Con Law from the Ghost of William Brennan, as you apparently are. And really, I'm the first loon to think of it, except a couple of nobodies like Hugo Black and Oliver Wendell Holmes, and (really, if you break it down) John Marshall. And Scalia and Thomas to an extent. And we'll see about Alito.
So bottom line, there is a 10th amendment, you haven't proved otherwise, we disagree on a bunch of stuff that reasonable people can disagree on, you don't get full cites from me because some of us have to pay for Westlaw access, William Brennan is dead, and Hugo Black pwns a11 u SUXORZ!
Like I said, this statement is unequivocally false. And despite your stunning ability to look up cases on the internet, the Congress still has to give lip service to a grant of authority before it passes a law. Usually it's the Commerce Clause, which after Wickard v. Filburn is ridiculously broad, but the Rhenquist court did manage to reign it in just a little bit. So no, Congress can't just go off willy nilly and do whatever it wants.
Then it's a good thing I never said there was. In fact, the ill-advised bailout is one of the most direct regulations of interstate commerce I can think of. Stupid, yes. Unconstitutional, no.
And I stand by my analysis of the New Deal. Everybody knew it was unconstitutional. They just decided it was so extraordinarily important that they were going to do it anyway. Similarly, everybody knows this bailout is stupid. We just think it's so extraordinarily important that we're told we should do it anyway.
Unfortunately, your understanding of the constitution is fundamentally flawed. It has a few things that it explicitly tells the federal government it can do, and the 10th amendment says, "If we didn't explicitly say you can do it, it's none of your business." Now for the states, your analysis is closer. If it doesn't say you can't do it, the states can do it. The fact that your misconception seems to be widely held is the best indication that we've really screwed up. And guess when we started doing things like social security and federal welfare programs that were so glaringly unconstitutional the president had to threaten to stack the Court before the Supremes backed down and let him have his way? It was the last time we had a big economic crisis, and FDR decided to "fix" it. And now, we spend 2/3 of our federal budget on programs that were supposed to "fix" the economy 70 or 80 years ago. Personally, I'd rather have a couple of lousy years while we get our act together than pay for this for the next 70 or 80 years. Maybe if it's bad enough, we'll learn from our mistakes.
It's called declaratory judgment, and it's done all the time, for lots of reasons. For example, if i sue on DJ, I get to pick the venue instead of the other guy.
Your post is cheeky and funny, but I would like to point out that in the legal arena, Jones Day is friggin' HUGE. These guys are not some two-bit operation. And yes, they do carry a reputation for pretentiousness and all-around snobbery* (I offer no opinion on whether it's deserved). That said, I know somebody who is an associate there (not in Chicago, though), and she's a brilliant and ethical attorney. So they're not all like this. The truth is, I work for a firm a little more than a tenth of their size, and you don't usually know what the guy down the hall is doing; much less the guy across the country. So if you meet a Jones Day attorney, remember, they're not all evil. Just the ones who filed this suit.
*This is my personal opinion and is not reflective of my firm's or anybody else's opinion.
I hear this repeated so much, but I don't think I'm aware of a single Continental policy that is truly so "liberal" that our Democrats* wouldn't support it given the chance. It's true that they aren't as effective at passing strong liberal policies, because they have Republican "loonies" opposing them. But that doesn't mean they don't WANT things like universal health care. Similarly, the Republicans* would destroy all state consumer protection laws and pass sweeping federal tort reform (regardless of the question of constitutionality) given the opportunity. It's not that they don't want to; it's that they can't because there's somebody pushing back. Please---and I'm serious here---somebody show me a European policy that is colorable as a liberal cause, but is so liberal the Washington Democrats would shoot it down, even if they had the chance to pass it.
*Yes, I know you're thinking of some individual Democrats or Republicans that wouldn't do this. But as a body, I believe this is true. Give either party free reign, and this is where they would go.
Either you're a leftist troll, or somebody with a big heart who has simply been seriously deceived by the Establishment. You might want to check out this pie chart. We spend about 2/3 of our budget on "programs of [pretended] social uplift." These programs do not, for the most part, "uplift" people. But they do ensure that Democrats keep getting elected. Which is their real purpose.
There are programs designed to ensure Republicans get re-elected too. They're just as evil, but not nearly as expensive.