As I scanned the posts here, I began to wonder why no one even checked the "About Us" page of the PTC. "Now nearly a million members strong and growing every day..." Then I remembered that most of you had already made up your minds that anyone complaining to the FCC must be evil.
These guys are submitting complaints because their members want them to, and have given them money to do exactly that, so they wouldn't have to do it themselves. This is what lobbying is about. Farming out your activism because you don't have the time and energy to do it yourself. It's not a "small minority." It's a really big organization.
Regardless of what you think about the substantive issues here, this looks like a group with broad support. And there is a vast group of people in this country that agree with their campaign... They re-elected Bush.
I'm going to have a very demanding job soon. I have no time to play games usually, so my dual p3-800 machine i put together as state-of-the-art a couple years ago has sat idle.
I'd much rather just have a console at home for when I want to play something quick, and be able to go somewhere like this to play MMORPGs or other PC games. I wouldn't have to worry about building a machine every couple years and then completely not using it, or even spending the time to figure out what the good games are -- I could just show up on a weekend and play a game through for 10-15 hours!
But you're not strictly right when saying that "[i]f you can't already see it, no magic algorithm is going to help."
There are a lot of times when an image is too dark, but the information is still in there. or the contrast is so minimal it's really hard to see, but there's a tiny but consistent difference along a line in the image. Edge detection, sharpening, wavelet stuff, can all help sometimes.
The point is that there are cases in which these things can help you see a license plate that you couldn't see before.
I am going to be a patent lawyer (in law school now), and I think I would disagree with the advice of these attorneys... I'll have to see if I change my mind later, but for the moment, I think they're taking an overly simplistic approach.
In business terms, you could gain a lot by knowing the state-of-the-art patents in your field and licensing those that are useful. You can also use the patent database to help narrow down the areas that will be most innovative for the future. There are some people in the IP field that have written about mining the patent database for innovative opportunities. I think it's an idea with a lot of potential.
But my main point is that, you only have to disclose those patents that you're aware of that might be relevant prior art. In fact, the more you disclose, and the more references the examiner considers, the more valuable your patent is going to be when it's issued. I don't want to be in the business of getting indefensible patents issued to my future clients unless that's honestly all they want for strategic purposes... I think in most cases, they will want a valuable and defensible patent. When you threaten to sue someone for infringement, I think one of the first things they do is go see how many references were considered by the examiner. That is a very good proxy for the strength of a patent in many cases.
If by becoming aware of the prior art, you discover something that may impact your application, you thereby also allow yourself to distinguish your invention before any later litigation. Really, discovering these things up front is much better in my opinion.
As I said, the lawyers who don't take this view are only thinking about getting it issued, and that could really bite you down the road. You need to get it issued and defensible, and if it's not, in my opinion it's mostly wasted effort that could have been put towards a better application that distinguishes the prior art. You could also potentially prevent yourself from properly protecting the invention with this approach, but that gets too complicated to talk about here...
I reiterate that I'm not a lawyer yet, so don't rely on anything in this post for legal advice.
Unfortunately, the question you pose is a different question from whether a patent is obvious or not _before_ you saw it.
The question the patent office asks in evaluating an application is whether it was obvious, in light of the prior art, to a person having ordinary skill in the art.
There are many inventions whose operation is clear on its face once you see them, but would have been very difficult to come up with beforehand.
Unfortunately, I think this would be a horrible idea.
One of the most important things about patents is that they give the owner and others, e.g. licensees, a degree of certainty about the allocation of the property rights involved.
One of the greatest benefits of patents is that they take hidden value that was hard to quantify and bring it into the economy, linking the value with a property right to allow market trades. This function will not be well-served if the property right is uncertain.
In your scenario, no one would have any degree of certainty that the patent holder's patent was valid, so no one would want to license it. It would lead to the patent holder having to sue for infringement at least once per patent in order to establish validity and begin licensing. Talk about a burden to small businesses!
Regardless of what you think would be the "ideal" solution, it's never a good idea to radically alter the law in a short period of time.
It's also not usually a good idea to throw out law and doctrines that have been refined over hundreds of years. The idea in law is always to build on what already exists, by changing only what needs to be changed, piece by piece.
Russia stands to gain, not lose, by signing. Since their industrial output has dropped so much, apparently they need to do absolutely nothing to fall within their limits.
OTOH, the US would take a big hit.
It's something that needs to be thought about carefully. Bush's problem IMHO is not that he doesn't want to sign it, but rather that he's not willing to sit at the bargaining table and honestly try to hash out something we can agree with.
Obviousness is a very tricky doctrine. You have to be aware that it can't be applied in hindsight... What seems obvious to you today is obvious because you're aware of the state of the art today. But the state of the art was completely different in 1988 when this patent was filed. That's why there are specific requirements to show basically how and why a patent was obvious at the time of invention.
As to the issue of them 'sitting on their rights', you may not be aware of the doctrine of laches. A plaintiff in a patent case has to bring suit basically within a reasonable time of discovering the infringement, or they lose the damages for past infringement. In this case, since the patent is SO old, there's even a presumption of laches on the plaintiff, so the burden is initially on the plaintiff to show that they didn't unreasonably or inexcusably delay their suit.
Suits have been thrown out on summary judgment for laches and equitable estoppel...
Sure, but is it worth making everyone go read guru of the week all the time, and know "Exceptional C++" and its sequels down pat?
I can tell you as a long-time C++ programmer (maybe you are too), probably 90% of the people out there actually writing C++ don't know about the tremendous pitfalls you can fall into with exceptions.
There are so many things to talk about here, but just as an example, in order to be exception safe, you have to make copies of things all the time in C++. You have to copy, change state, check if you succeeded, if not, throw, and if so, swap the changed state with the original and move on. If you don't do it that way, you could end up throwing with a changed state or have someone below you throw in the middle of a non-atomic operation... aggh.
IMHO, it's awesome if you really know your stuff, but it's definitely dangerous otherwise.
Not true. (the bit about untrustworthiness of cpp compilers)
C++ has quite a few areas of the language that actually exhibit _undefined_behavior_. Sure, on any one implementation it may be predictable, but there are still quite a few things that you could ask Stroustrup about and he'd say "well, just stay away from that, eh..."
I can't believe you actually believe this. You think any software can be run mentally??!
You're not talking about running software mentally. You're talking about thinking about what software does mentally. Try running mathematica mentally sometime. It won't just be slow, I think it would be thousands of years before you could complete some fairly straightforward operations through mentally manipulating the binary code.
It's not socialist to grant someone a property right in their work for a limited time, so they can sell it and make some money, any more than it is to allow people to own land, or stocks, or securities, or other more nebulous rights. Property rights are the foundation of economic transactions. Granting rights in intellectual property merely allows those economic trades to occur, and for people to benefit through capitalism rather than appropriation.
When people make an economic transaction for content, both sides win (or at least don't lose). The author wins because he gets paid, and the buyer wins because he's paying for something he wants more than his money, something he values higher than the cost he's paying. This is the ingenious effect of pareto-superior transactions, the reason capitalism benefits people so much.
If, rather than making an economic transaction, one can just take the item or work in question, both sides don't win. One side definitely loses, and that is the author.
You can argue that this is still a Kaldor-Hicks efficient trade, if the rest of society benefits more than the author loses, but think about the incentive effects of this type of trade! Rather than go into a long explanation, I will simply mention that communism sucked.
Actually, this has been argued before. Look at the stats on alcohol use across the country during that time. It dropped waaay down, and only began to approach its pre-prohibition levels recently.
Lawyers often adhere to specific language because that specific language has been adjudicated to have a specific and desired meaning in a case. So if you stick to that language, you're reasonably assured of the desired interpretation.
However, if you deviate from that language, sometimes a judge might construe it differently that you wish, which could be bad. When you're working for a client, the important thing is getting the desired meaning and result, not the clarity of the documents in question...:)
It was just an analogy to breaking a contract. When you break a contract you've agreed to with someone else, and thereby cause them to lose profits somehow, you're liable to them for those lost profits.
For example, if I pay you for a year's supply of widgets, for my computers, and you fail to supply me for the whole year, I can sue you for the profits I lost due to my inability to make and sell as many computers as I would normally have done.
Copyright issues are not contract issues, but the concept of lost profits is similar...
But your actually having it means that you received a benefit wrongfully, by violating copyright law.
Through legal means, you would have had to pay in order to get the song. Under the law, you're not allowed to just copy it because you don't have the money to pay for it, or don't want to pay for it...
Ok. Strictly speaking, that should have read "If the copyright owner loses a sale he would have made but for someone's violation of copyright law, then it is a real loss."
These are lost profits, and are awarded by courts all the time.
First, these cases are not about anything being illegal in a criminal sense, just about whether someone who writes p2p software or runs p2p networks can be liable to the companies that own the copyright to files being traded.
The lines are drawn in the law and in the courts' decisions interpreting the law. You don't see any of the fine distinctions and considerations unless you actually study the law and the cases.
Under these cases, there's little chance that all those technologies would make their creators liable, but they could be in specific instances...
This is not what the court said. It considered whether there were substantial non-infringing uses to the VCR, and found that there were, specifically mentioning time-shifting.
Posner in the Aimster decision in the 7th Circuit took the position that the Sony court had put forth a balancing test. He said basically that although the p2p networks want ANY potential non-infringing use to avoid contributory infringement, and the MPAA wants ANY infringing use to do so, neither is correct under Sony.
Also, the MPAA doesn't have to decide whether users or p2p software authors are at fault. They can obviously both violate copyright law if they do something prohibited by the law. Contributory and vicarious infringement are clearly prohibited in the law, and the courts have a long set of things to consider in finding those types of infringement. If they are met, it's definitely possible that users are direct infringers and p2p software authors are contributory infringers.
Slashdot Mirror
As I scanned the posts here, I began to wonder why no one even checked the "About Us" page of the PTC. "Now nearly a million members strong and growing every day..." Then I remembered that most of you had already made up your minds that anyone complaining to the FCC must be evil.
These guys are submitting complaints because their members want them to, and have given them money to do exactly that, so they wouldn't have to do it themselves. This is what lobbying is about. Farming out your activism because you don't have the time and energy to do it yourself. It's not a "small minority." It's a really big organization.
Regardless of what you think about the substantive issues here, this looks like a group with broad support. And there is a vast group of people in this country that agree with their campaign... They re-elected Bush.
I'm going to have a very demanding job soon. I have no time to play games usually, so my dual p3-800 machine i put together as state-of-the-art a couple years ago has sat idle.
I'd much rather just have a console at home for when I want to play something quick, and be able to go somewhere like this to play MMORPGs or other PC games. I wouldn't have to worry about building a machine every couple years and then completely not using it, or even spending the time to figure out what the good games are -- I could just show up on a weekend and play a game through for 10-15 hours!
I think it would rock.
Well, you're right that the TV tech is bogus.
But you're not strictly right when saying that "[i]f you can't already see it, no magic algorithm is going to help."
There are a lot of times when an image is too dark, but the information is still in there. or the contrast is so minimal it's really hard to see, but there's a tiny but consistent difference along a line in the image. Edge detection, sharpening, wavelet stuff, can all help sometimes.
The point is that there are cases in which these things can help you see a license plate that you couldn't see before.
I am going to be a patent lawyer (in law school now), and I think I would disagree with the advice of these attorneys... I'll have to see if I change my mind later, but for the moment, I think they're taking an overly simplistic approach.
In business terms, you could gain a lot by knowing the state-of-the-art patents in your field and licensing those that are useful. You can also use the patent database to help narrow down the areas that will be most innovative for the future. There are some people in the IP field that have written about mining the patent database for innovative opportunities. I think it's an idea with a lot of potential.
But my main point is that, you only have to disclose those patents that you're aware of that might be relevant prior art. In fact, the more you disclose, and the more references the examiner considers, the more valuable your patent is going to be when it's issued. I don't want to be in the business of getting indefensible patents issued to my future clients unless that's honestly all they want for strategic purposes... I think in most cases, they will want a valuable and defensible patent. When you threaten to sue someone for infringement, I think one of the first things they do is go see how many references were considered by the examiner. That is a very good proxy for the strength of a patent in many cases.
If by becoming aware of the prior art, you discover something that may impact your application, you thereby also allow yourself to distinguish your invention before any later litigation. Really, discovering these things up front is much better in my opinion.
As I said, the lawyers who don't take this view are only thinking about getting it issued, and that could really bite you down the road. You need to get it issued and defensible, and if it's not, in my opinion it's mostly wasted effort that could have been put towards a better application that distinguishes the prior art. You could also potentially prevent yourself from properly protecting the invention with this approach, but that gets too complicated to talk about here...
I reiterate that I'm not a lawyer yet, so don't rely on anything in this post for legal advice.
Um. He's not appealing to authority as you aver.
He's actually questioning authority. This is different. Read that wikipedia link again...
Unfortunately, the question you pose is a different question from whether a patent is obvious or not _before_ you saw it.
The question the patent office asks in evaluating an application is whether it was obvious, in light of the prior art, to a person having ordinary skill in the art.
There are many inventions whose operation is clear on its face once you see them, but would have been very difficult to come up with beforehand.
Unfortunately, I think this would be a horrible idea.
One of the most important things about patents is that they give the owner and others, e.g. licensees, a degree of certainty about the allocation of the property rights involved.
One of the greatest benefits of patents is that they take hidden value that was hard to quantify and bring it into the economy, linking the value with a property right to allow market trades. This function will not be well-served if the property right is uncertain.
In your scenario, no one would have any degree of certainty that the patent holder's patent was valid, so no one would want to license it. It would lead to the patent holder having to sue for infringement at least once per patent in order to establish validity and begin licensing. Talk about a burden to small businesses!
Regardless of what you think would be the "ideal" solution, it's never a good idea to radically alter the law in a short period of time.
It's also not usually a good idea to throw out law and doctrines that have been refined over hundreds of years. The idea in law is always to build on what already exists, by changing only what needs to be changed, piece by piece.
Russia stands to gain, not lose, by signing. Since their industrial output has dropped so much, apparently they need to do absolutely nothing to fall within their limits.
OTOH, the US would take a big hit.
It's something that needs to be thought about carefully. Bush's problem IMHO is not that he doesn't want to sign it, but rather that he's not willing to sit at the bargaining table and honestly try to hash out something we can agree with.
Even if it's expired, they can get damages for past infringement (while the patent was in force) if they've recently discovered it.
Obviousness is a very tricky doctrine. You have to be aware that it can't be applied in hindsight... What seems obvious to you today is obvious because you're aware of the state of the art today. But the state of the art was completely different in 1988 when this patent was filed. That's why there are specific requirements to show basically how and why a patent was obvious at the time of invention.
As to the issue of them 'sitting on their rights', you may not be aware of the doctrine of laches. A plaintiff in a patent case has to bring suit basically within a reasonable time of discovering the infringement, or they lose the damages for past infringement. In this case, since the patent is SO old, there's even a presumption of laches on the plaintiff, so the burden is initially on the plaintiff to show that they didn't unreasonably or inexcusably delay their suit.
Suits have been thrown out on summary judgment for laches and equitable estoppel...
So maybe we'll finally see what ancient cultures may have lived on antarctica. ;) That will be extremely interesting.
Sure, but is it worth making everyone go read guru of the week all the time, and know "Exceptional C++" and its sequels down pat?
I can tell you as a long-time C++ programmer (maybe you are too), probably 90% of the people out there actually writing C++ don't know about the tremendous pitfalls you can fall into with exceptions.
There are so many things to talk about here, but just as an example, in order to be exception safe, you have to make copies of things all the time in C++. You have to copy, change state, check if you succeeded, if not, throw, and if so, swap the changed state with the original and move on. If you don't do it that way, you could end up throwing with a changed state or have someone below you throw in the middle of a non-atomic operation... aggh.
IMHO, it's awesome if you really know your stuff, but it's definitely dangerous otherwise.
Not true. (the bit about untrustworthiness of cpp compilers)
C++ has quite a few areas of the language that actually exhibit _undefined_behavior_. Sure, on any one implementation it may be predictable, but there are still quite a few things that you could ask Stroustrup about and he'd say "well, just stay away from that, eh..."
I can't believe you actually believe this. You think any software can be run mentally??!
You're not talking about running software mentally. You're talking about thinking about what software does mentally. Try running mathematica mentally sometime. It won't just be slow, I think it would be thousands of years before you could complete some fairly straightforward operations through mentally manipulating the binary code.
Your post is complete BS.
It's not socialist to grant someone a property right in their work for a limited time, so they can sell it and make some money, any more than it is to allow people to own land, or stocks, or securities, or other more nebulous rights. Property rights are the foundation of economic transactions. Granting rights in intellectual property merely allows those economic trades to occur, and for people to benefit through capitalism rather than appropriation.
When people make an economic transaction for content, both sides win (or at least don't lose). The author wins because he gets paid, and the buyer wins because he's paying for something he wants more than his money, something he values higher than the cost he's paying. This is the ingenious effect of pareto-superior transactions, the reason capitalism benefits people so much.
If, rather than making an economic transaction, one can just take the item or work in question, both sides don't win. One side definitely loses, and that is the author.
You can argue that this is still a Kaldor-Hicks efficient trade, if the rest of society benefits more than the author loses, but think about the incentive effects of this type of trade! Rather than go into a long explanation, I will simply mention that communism sucked.
Actually, this has been argued before. Look at the stats on alcohol use across the country during that time. It dropped waaay down, and only began to approach its pre-prohibition levels recently.
Lawyers often adhere to specific language because that specific language has been adjudicated to have a specific and desired meaning in a case. So if you stick to that language, you're reasonably assured of the desired interpretation.
:)
However, if you deviate from that language, sometimes a judge might construe it differently that you wish, which could be bad. When you're working for a client, the important thing is getting the desired meaning and result, not the clarity of the documents in question...
Because we'd end up with the most efficient system possible -- facism. ;)
It was just an analogy to breaking a contract. When you break a contract you've agreed to with someone else, and thereby cause them to lose profits somehow, you're liable to them for those lost profits.
For example, if I pay you for a year's supply of widgets, for my computers, and you fail to supply me for the whole year, I can sue you for the profits I lost due to my inability to make and sell as many computers as I would normally have done.
Copyright issues are not contract issues, but the concept of lost profits is similar...
But your actually having it means that you received a benefit wrongfully, by violating copyright law.
Through legal means, you would have had to pay in order to get the song. Under the law, you're not allowed to just copy it because you don't have the money to pay for it, or don't want to pay for it...
Ok. Strictly speaking, that should have read "If the copyright owner loses a sale he would have made but for someone's violation of copyright law, then it is a real loss."
These are lost profits, and are awarded by courts all the time.
It's not considered wrongful under the law to lobby for a bill and get it passed. ;)
First, these cases are not about anything being illegal in a criminal sense, just about whether someone who writes p2p software or runs p2p networks can be liable to the companies that own the copyright to files being traded.
The lines are drawn in the law and in the courts' decisions interpreting the law. You don't see any of the fine distinctions and considerations unless you actually study the law and the cases.
Under these cases, there's little chance that all those technologies would make their creators liable, but they could be in specific instances...
This is not what the court said. It considered whether there were substantial non-infringing uses to the VCR, and found that there were, specifically mentioning time-shifting.
Posner in the Aimster decision in the 7th Circuit took the position that the Sony court had put forth a balancing test. He said basically that although the p2p networks want ANY potential non-infringing use to avoid contributory infringement, and the MPAA wants ANY infringing use to do so, neither is correct under Sony.
Also, the MPAA doesn't have to decide whether users or p2p software authors are at fault. They can obviously both violate copyright law if they do something prohibited by the law. Contributory and vicarious infringement are clearly prohibited in the law, and the courts have a long set of things to consider in finding those types of infringement. If they are met, it's definitely possible that users are direct infringers and p2p software authors are contributory infringers.