I'm sure there is some very specific crap in there to somehow make this 'different' and 'patentable'. If so, then that "very specific crap" will limit the claims to make them allowable. A patent does not give you the right to prohibit anybody from doing anything that looks like the abstract. It's limited by the claims, which have to be patentable over prior art. Until you've read and carefully examined the claims, you have not idea what the "patent" is.
Yes, don't you love how those scheming, conniving Republicans, who had only to push around a few bits to tweak the results, manipulated the elections to throw both houses of Congress to the Democrats last year? What a brilliant way to throw people off the scent! Now if they can just get Hillary in the White House, their diabolical strangle hold on power will be all but unbreakable! MUHAHAHA
I agree, but that's still only upon reasonable anticipation of litigation. R. 37 is protecting a business from getting hit with sanctions for just going about their business before they know they're getting sued. And that date is even self-policing in many cases. On one hand, the litigant may want to postpone the date of reasonable anticipation to postpone the duty to preserve. On the other hand, the same litigant often wants to make the date of reasonable anticipation early so he/she/it can claim privilege on the e-mails that say stuff like "Help! We screwed up!"
Actually, it's the well-funded special interest group lobbyists of nature. Obviously Big Gravity and Big Quantum Mechanics have very disparate interests, so we're stuck with these laws we can't seem to reconcile.
I should also mention that R. 37 has a safe harbor provision. "Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." If your normal policy is to dump certain stuff at certain times, you won't get smacked unless it looks like you did it in bad faith (e.g., implemented the policy to screw adverse litigants or something).
This "law" should not be "overturned." It is not a "law." It is Rules of Civil Procedure for parties in litigation in Federal court. You can read them here. The rule you want is R. 34.
This post does not constitute legal advice and is not endorsed by Jackson Walker LLP
Or maybe it's not a "law" at all, but rather the Federal Rules of Civil Procedure, which only apply to parties in litigation in Federal court (or at the very most, those who reasonably anticipate they will be in litigation in federal court for a specific matter). Really, I don't see the story here. The new e-discovery rules do not impose onerous requirements on all businesses. They just prevent you from dumping data when you have that "Oh, crap, we're gonna get sued for this" moment.
Not really. Good lawyers conduct discovery amicably with little or no running to the judge unless there is a general, reasonable dispute. Judges hate to have their time wasted, and when it happens, both sides tend to lose something. Shady lawyers with shady clients who have something to hide---those are the ones that object to every reasonable discovery request. I know one like this. He is pretty much hated by every lawyer in the city. He is one of very few lawyers who has to think twice about removing to Federal court when he is on the defense side because he has such a lousy reputation there. He has won a few cases by being such a pain that people just settle to make him go away. But he has built such a poor reputation doing it, he is now a liability to his clients.
One of two things will happen. One: the trademark is granted, Drew gets some laughs, lawsuits, and the TM gets taken away. Or two: the trademark is denied from the beginning.
Or three, there is a distinct possibility that the mark will be perfectly valid, will be granted and will be upheld in court. Or four, something else could happen. Or five, another something else could happen...
I know that this has to be said every single time there's a trademark story on Slashdot, but this is not that big a deal. If somebody gets a trademark, that doesn't mean nobody can ever use it again ever. It means nobody can use a confusingly similar mark in a confusingly similar manner. The purpose of Trademark is to identify the source of goods. It's not like it's a patent on the word. I think a lot of people could benefit by reading a good IP primer (find "Intellectual Property Basics" at the bottom of the page and download gratis---written by my practice group leader with 30 years of experience as an IP attorney).
A few years back, there was a story on Slashdot about a manufacturer of tennis balls who had trademarked the smell of freshly-cut grass. Everybody was up in arms. But there was no problem---it was a GREAT trademark because it was arbitrary. It was not too closely tied to the function of tennis balls. And it doesn't mean you infringe on their trademark rights if you cut your grass. It means you infringe on their trademark rights if you sell tennis balls that smell like freshly-cut grass. And maybe you do if you sell a tennis racket. And maybe you do if you sell balls that smell like old grass clippings. Trademark rights really aren't that broad.
OK, I really don't know squat about how patents are done
Obviously.
If this is typical for real patents, then patent law is even more screwed up than I already thought it was.
It's very common to file "continuation" applications or "continuation-in-part" applications drawn to different aspects of the same invention. It would be very unusual to see a continuation without a word-for-word identical specification. They are not a way to get "time extensions" on your patent. They will expire at the same time as the parent application. They are a mechanism you use to claim different aspects of the same invention, or to capture claims you did not include with your original set that you think you are entitled to. They are not some dirty trick that patent trolls use. They are business as usual. Please do a little research before getting all worked up.
The problem with campaign finance reform is it does not level the playing field for challengers. All else equal, the incumbent has a natural advantage of close to 10:1. So the challenger is already at a tremendous disadvantage. The only thing that has been shown to get closer to a level playing field is a whole lot of money. Imagine a Presidential race where the challengers had no money. Would it ever even be close? Probably not.
Your congressmen, of course, understand this. That's why they passed McCain-Feingold. The law is crassly, glaringly unconstitutional and is aimed squarely at silencing challengers who would call attention to the incumbents' voting records. And it's targeted to the most important time (the last thirty days before an election). And the Supreme Court has already blessed it. So don't look for campaign finance reform to make it easier to unseat corrupt congressmen. Term limits may do the trick, but the party in power is never in favor of those either.
Fortunately, you tend to get periodic backlashes against the establishment (1994, 2006, quite possibly 2008). Unfortunately, the new crooks tend to be just as bad as the old crooks. I wouldn't expect the situation to change unless there is a major upheaval and there is a Constitutional convention held to amend the Constitution to require term limits. Congress will certainly never do it.
Does this mean that sellers will now add a "sales tax" to what they're selling in order to compensate for this new tax?
It's actually not a "new" tax---it's tax on income you're obligated to report anyway. Ironically, if you add in tax to the sale price to compensate for the tax you'll have to pay, it's deemed income (because you got somebody else to pay your tax obligation). So the IRS will tax you on that. But then if you get somebody to pay THAT tax for you, they leave you alone, because that's what they had to say to win the case where this came up.
Competitive sports are a special class where generally all but intentional torts are waived. What you're missing here is that for there to be a tort, first there must be a duty to the aggrieved party (i.e., in general, I have a duty to not hit you). When you voluntarily step into the boxing ring for a match, there is no longer the duty not to hit your opponent. The nature of the sport is to hit him. In this case, society has expressed a policy in favor of allowing certain competitive sports, even where it conflicts with the policy of people not hitting each other.
In contrast, if you have an otherwise valid contract that says, "I am allowed to hit Bill Gates, and said Gates waives any recourse against me," and Bill himself signs the contract, and maybe you pay him a billion dollars for the privilege, you are still not privileged to hit Bill Gates at your whim. The contract is void as a matter of public policy because we have a strong public policy against people hitting each other, and there is no overriding policy that defeats it in this case. This is true of any intentional tort. If you can find a judge willing to hold that the policy of paying software vendors overrides our policy of not intentionally torting each other, I'm sure the BSA would like to speak to him.
And before anyone brings it up, yes, it's true that some morons in Congress once tossed around a law that said that the RIAA could destroy your computer if you downloaded music. They can get away with this because the statute, once passed, would trump the common law. So if you are rich enough to pay for a law, then you can have EULAs that allow you to destroy the user's home folder if he uses an invalid key. I doubt that this moron is.
There are issues as to whether he made the program's behaviour clear in the EULA, and even if he had whether this would make his actions acceptable.
Destroying a user's data is an intentional tort. You cannot waive intentional torts by contract in any jurisdiction of which I am aware. So the author is pretty much toast here.
As for Texas I have heard that, whatever the law is, certain districts are notorious for pro-plaintiff juries.
Laredo, McAllen, Corpus Christi. Basically, the closer you get to the border, the lower the average education level and the higher the jury awards. State court juries there will award you $2M for a dislocated shoulder (true story). You can make out pretty well as long as the elected, all-Republican Texas Supreme Court doesn't grant cert. If they do, you're screwed. You also don't want to get removed to federal court and end up at the Fifth Circuit.
Emotional Distress/Mental Anguish is a loser in Texas. After Boyles v. Kerr, we don't recognize NIED at all (Probably not familiar with the case, but you may have heard of the story---college guy films himself and his girlfriend doing it ca. 1993 then passes the tape around. She sues for NIED because she wants to go after his insurance policy. Texas Supreme Court says there's no such claim in Texas). IIED is also all but dead---Texas recognizes it only when there is extreme and outrageous conduct AND there is no other cause of action at all anywhere. If you have so much as a copyright claim that will get you $750 in statutory damages, you don't get IIED.
Basically, Texas doesn't like plaintiffs. We have some of the most draconian "tort reform" laws to be found. That said, we are an "at-will" employment state. If you don't have a contract, either side can terminate the employment at any time for any reason except an illegal reason. And we still have some good consumer-protection laws left over from the 70s when we LOVED plaintiffs. And we don't like frivolous lawsuits. I try to avoid torts, but I know we have abuse of process provisions. I'd say if they actually file suit, this guy has some remedies. If they don't file suit, you may have an IIED claim, but it's an uphill battle.
NOTE: I AM NOT A LAWYER---JUST A LAW STUDENT. I AM NOT YOUR LAWYER. THIS POST DOES NOT CONSTITUTE LEGAL ADVICE TO YOU OR ANYBODY ELSE AND SHOULD NOT BE RELIED ON. ALSO, I DO PATENTS, NOT TORTS AND/OR EMPLOYMENT, SO ASSUME I DON'T KNOW WHAT I'M TALKING ABOUT.
How feasible would it be to take the USPTO to court for not fulfilling their chartered duty and as a result causing millions of dollars of damage?
Very nearly zero probability. We have a liability system derived from the English common law, which has recognized "sovereign immunity" for a very, very long time. The only way you get to sue the sovereign (i.e., any government agency) is if it passes a statute specifically saying, "You can sue us under these limited circumstances." They do pass such statutes at times (for example, in Texas if you get in a car accident where the driver of a government vehicle is at fault, you can get a limited recovery), but I'm not aware of any statute authorizing suit against the USPTO. So don't start spending that settlement check yet.
Fortunately, there are major patent reforms currently being bandied about by Congress (some of them are actually good), and one of them is a "first to file" system. Which means the scam will be officially sanctioned by the USPTO. Folks like IBM and Microsoft want first-to-file so badly it hurts. Any of the guys at the tops of those corps. would trade his firstborn for it.
Slashdot Mirror
Yes, don't you love how those scheming, conniving Republicans, who had only to push around a few bits to tweak the results, manipulated the elections to throw both houses of Congress to the Democrats last year? What a brilliant way to throw people off the scent! Now if they can just get Hillary in the White House, their diabolical strangle hold on power will be all but unbreakable! MUHAHAHA
I agree, but that's still only upon reasonable anticipation of litigation. R. 37 is protecting a business from getting hit with sanctions for just going about their business before they know they're getting sued. And that date is even self-policing in many cases. On one hand, the litigant may want to postpone the date of reasonable anticipation to postpone the duty to preserve. On the other hand, the same litigant often wants to make the date of reasonable anticipation early so he/she/it can claim privilege on the e-mails that say stuff like "Help! We screwed up!"
Actually, it's the well-funded special interest group lobbyists of nature. Obviously Big Gravity and Big Quantum Mechanics have very disparate interests, so we're stuck with these laws we can't seem to reconcile.
I should also mention that R. 37 has a safe harbor provision. "Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." If your normal policy is to dump certain stuff at certain times, you won't get smacked unless it looks like you did it in bad faith (e.g., implemented the policy to screw adverse litigants or something).
This "law" should not be "overturned." It is not a "law." It is Rules of Civil Procedure for parties in litigation in Federal court. You can read them here. The rule you want is R. 34.
This post does not constitute legal advice and is not endorsed by Jackson Walker LLP
Or maybe it's not a "law" at all, but rather the Federal Rules of Civil Procedure, which only apply to parties in litigation in Federal court (or at the very most, those who reasonably anticipate they will be in litigation in federal court for a specific matter). Really, I don't see the story here. The new e-discovery rules do not impose onerous requirements on all businesses. They just prevent you from dumping data when you have that "Oh, crap, we're gonna get sued for this" moment.
Not really. Good lawyers conduct discovery amicably with little or no running to the judge unless there is a general, reasonable dispute. Judges hate to have their time wasted, and when it happens, both sides tend to lose something. Shady lawyers with shady clients who have something to hide---those are the ones that object to every reasonable discovery request. I know one like this. He is pretty much hated by every lawyer in the city. He is one of very few lawyers who has to think twice about removing to Federal court when he is on the defense side because he has such a lousy reputation there. He has won a few cases by being such a pain that people just settle to make him go away. But he has built such a poor reputation doing it, he is now a liability to his clients.
Wow, I had never heard of that, but it is truly one of the stupidest ideas I've ever heard.
Or three, there is a distinct possibility that the mark will be perfectly valid, will be granted and will be upheld in court. Or four, something else could happen. Or five, another something else could happen ...
I know that this has to be said every single time there's a trademark story on Slashdot, but this is not that big a deal. If somebody gets a trademark, that doesn't mean nobody can ever use it again ever. It means nobody can use a confusingly similar mark in a confusingly similar manner. The purpose of Trademark is to identify the source of goods. It's not like it's a patent on the word. I think a lot of people could benefit by reading a good IP primer (find "Intellectual Property Basics" at the bottom of the page and download gratis---written by my practice group leader with 30 years of experience as an IP attorney).
A few years back, there was a story on Slashdot about a manufacturer of tennis balls who had trademarked the smell of freshly-cut grass. Everybody was up in arms. But there was no problem---it was a GREAT trademark because it was arbitrary. It was not too closely tied to the function of tennis balls. And it doesn't mean you infringe on their trademark rights if you cut your grass. It means you infringe on their trademark rights if you sell tennis balls that smell like freshly-cut grass. And maybe you do if you sell a tennis racket. And maybe you do if you sell balls that smell like old grass clippings. Trademark rights really aren't that broad.
What version of Windows are you running that only gets one virus?
It's very common to file "continuation" applications or "continuation-in-part" applications drawn to different aspects of the same invention. It would be very unusual to see a continuation without a word-for-word identical specification. They are not a way to get "time extensions" on your patent. They will expire at the same time as the parent application. They are a mechanism you use to claim different aspects of the same invention, or to capture claims you did not include with your original set that you think you are entitled to. They are not some dirty trick that patent trolls use. They are business as usual. Please do a little research before getting all worked up.
My USPTO Reg. No. is 57,776.
Your congressmen, of course, understand this. That's why they passed McCain-Feingold. The law is crassly, glaringly unconstitutional and is aimed squarely at silencing challengers who would call attention to the incumbents' voting records. And it's targeted to the most important time (the last thirty days before an election). And the Supreme Court has already blessed it. So don't look for campaign finance reform to make it easier to unseat corrupt congressmen. Term limits may do the trick, but the party in power is never in favor of those either.
Fortunately, you tend to get periodic backlashes against the establishment (1994, 2006, quite possibly 2008). Unfortunately, the new crooks tend to be just as bad as the old crooks. I wouldn't expect the situation to change unless there is a major upheaval and there is a Constitutional convention held to amend the Constitution to require term limits. Congress will certainly never do it.
Competitive sports are a special class where generally all but intentional torts are waived. What you're missing here is that for there to be a tort, first there must be a duty to the aggrieved party (i.e., in general, I have a duty to not hit you). When you voluntarily step into the boxing ring for a match, there is no longer the duty not to hit your opponent. The nature of the sport is to hit him. In this case, society has expressed a policy in favor of allowing certain competitive sports, even where it conflicts with the policy of people not hitting each other.
In contrast, if you have an otherwise valid contract that says, "I am allowed to hit Bill Gates, and said Gates waives any recourse against me," and Bill himself signs the contract, and maybe you pay him a billion dollars for the privilege, you are still not privileged to hit Bill Gates at your whim. The contract is void as a matter of public policy because we have a strong public policy against people hitting each other, and there is no overriding policy that defeats it in this case. This is true of any intentional tort. If you can find a judge willing to hold that the policy of paying software vendors overrides our policy of not intentionally torting each other, I'm sure the BSA would like to speak to him.
And before anyone brings it up, yes, it's true that some morons in Congress once tossed around a law that said that the RIAA could destroy your computer if you downloaded music. They can get away with this because the statute, once passed, would trump the common law. So if you are rich enough to pay for a law, then you can have EULAs that allow you to destroy the user's home folder if he uses an invalid key. I doubt that this moron is.I have seen many, many BSODs in Windows XP. I never saw any in 2000. That was the only decent OS I've ever seen come out of Redmond.
Emotional Distress/Mental Anguish is a loser in Texas. After Boyles v. Kerr, we don't recognize NIED at all (Probably not familiar with the case, but you may have heard of the story---college guy films himself and his girlfriend doing it ca. 1993 then passes the tape around. She sues for NIED because she wants to go after his insurance policy. Texas Supreme Court says there's no such claim in Texas). IIED is also all but dead---Texas recognizes it only when there is extreme and outrageous conduct AND there is no other cause of action at all anywhere. If you have so much as a copyright claim that will get you $750 in statutory damages, you don't get IIED.
Basically, Texas doesn't like plaintiffs. We have some of the most draconian "tort reform" laws to be found. That said, we are an "at-will" employment state. If you don't have a contract, either side can terminate the employment at any time for any reason except an illegal reason. And we still have some good consumer-protection laws left over from the 70s when we LOVED plaintiffs. And we don't like frivolous lawsuits. I try to avoid torts, but I know we have abuse of process provisions. I'd say if they actually file suit, this guy has some remedies. If they don't file suit, you may have an IIED claim, but it's an uphill battle.
NOTE: I AM NOT A LAWYER---JUST A LAW STUDENT. I AM NOT YOUR LAWYER. THIS POST DOES NOT CONSTITUTE LEGAL ADVICE TO YOU OR ANYBODY ELSE AND SHOULD NOT BE RELIED ON. ALSO, I DO PATENTS, NOT TORTS AND/OR EMPLOYMENT, SO ASSUME I DON'T KNOW WHAT I'M TALKING ABOUT.
Fortunately, there are major patent reforms currently being bandied about by Congress (some of them are actually good), and one of them is a "first to file" system. Which means the scam will be officially sanctioned by the USPTO. Folks like IBM and Microsoft want first-to-file so badly it hurts. Any of the guys at the tops of those corps. would trade his firstborn for it.
There are.