I'd comment that most systems of rules state that more specific rules have precedence.
Ah, but most systems of rules also state that later rules take precedence over earlier rules. So while the Copyright Clause is arguably more specific than the First Amendment, it's also earlier in time. So the tension remains.
Here are two examples, just to get you started. "The Congress shall have Power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" but yet "Congress shall make no law...abridging the freedom of speech, or of the press."
So which one trumps? Can Congress make a law abridging the freedom of speech or of the press in order to grant an author the exclusive right to his or her writings? And, hey, what about visual artists? They don't write anything, so do they get copyright protection or not? Or composers? And what about laws that only incidentally affect the press, like taxes on ink or printing equipment? What about a general sales tax that happens to affect ink?
Not so clear, is it?
Or how about this one "The Congress shall have Power...To regulate Commerce...among the several States?" What does that mean? Does it apply only to things like interstate taxes? What about the infrastructure of commerce like interstate roads? What about products sold across state lines? What if the seller doesn't ship it across state lines but the buyer brings it across? What if one state subsidizes the heck out of a product, leading to competition problems with the neighboring state? What about products that are illegal but sold across state lines, like drugs? What if the product is being given away, like open source software, is that still commerce?
So you can see that the Constitution is not very clear at all on a lot of points. Sometimes it's because parts of the document are in tension with other parts. Other times it's because the words are just plain vague. Scholars, politicians, and judges have spent centuries trying to figure out the best way to balance those tensions and interpret those vague words.
First and foremost, if you're being honest with yourself, these kinds of decisions are too important to leave up to people in non-elected positions. Just because I agree with the decision they made doesn't make it right to try and do an end run around the politicos to get their way.
The FCC can only do what the law that created it allows it to do, plus other powers granted to it by Congress through additional legislation. This isn't an "end run around the politicos." The legislature has already given the FCC the power to do this. It's the whole reason we have agencies: we grant rule-making power to experts so that Congress can focus on other issues.
Imagine if the FCC were doing the opposite, and trying to encourage a non-neutral net.
Then we'd have to live with the consequences of an agency exercising the powers duly granted to it by Congress. We could petition the FCC not do so, and we could lobby Congress to override it, but there wouldn't be anything inherently inappropriate about it as long as it's within the FCC's rulemaking authority.
Secondly, this wouldn't be a law on the books. All it would take for this policy to change would be a new management at the FCC. That means both that businesses couldn't count on it staying the same for any kind of long term and that the next election cycle could see it thrown out the window without so much as a vote in congress.
As a technical point it would be "on the books" (the Code of Federal Regulations) and it would probably carry with it the force of law. But anyway, your argument could just as easily be applied to all regulations. The fact that they can be changed without Congressional approval is a feature, not a bug. It allows the regulations to be updated more frequently, for one thing. For another, deference to the executive branch is a decision Congress made when it passed the law giving the FCC the power to make these kinds of rules.
And anyway, that argument basically amounts to "since this good thing might be taken away later, we shouldn't bother with it in the first place," which isn't a very good argument at all since ultimately everything is subject to change, even the Constitution.
You mention one case whre prior art would have to be from 1990, so I assume you mean that one was filed in 1991; when was it issued? Isn't the patent term 17 years?
That patent (5479472) issued in 1995. The patent term used to be 17 years from the date of issue. It is now 20 years from the date of filing, but it was 17 years from issue when that patent was filed. Anyway, so that patent will be in force until approximately 2012. But remember that the statute of limitations on patent infringement is 6 years, so NTP could theoretically sue up until 2018 for infringement that occurred as late as when the patent expired in 2012.
So, their patents can't possibly be valid. I'd look them up and show exactly why
It's no secret which patents NTP owns, and the patents will necessarily be named in the complaint filed with the court, which like most federal court documents will be available on the PACER system for a nominal fee. I don't why you'd expect NTP to name the patents in its press release.
Combining email with IP-over-GSM is simply combining two existing technologies, which isn't patent worthy, so they couldn't have patented that
In fact, combining two existing technologies is patent worthy if the combination is new, useful, nonobvious, and adequately described in the patent application. So after you review that list of patents I linked, you'll need to show that the claimed inventions (i.e., the claims as read in light of the specification) are either fully described in a single piece of prior art (i.e., anticipated) or that there exist multiple pieces of prior art that can be combined to fully describe the invention (i.e., that the invention was obvious at the time). Good luck with that, since several massive companies (RIM included) have already had millions of dollars worth of incentives to find said prior art. By the way, most of the patents date back to around 1995, so your prior art will need to be from roughly around 1994. In one case your prior art will need to be from around 1990. What seems perfectly obvious now was probably not so obvious back then.
While it's true that NTP received a $612.5 million damages award from RIM, it's important to remember that NTP initially offered to settle with RIM for approximately $6 million. Remember too that RIM was found to have been a willful infringer, so its damages were increased and included attorney's fees. It also engaged in some courtroom shenanigans that likely contributed to the increased damages award. Another reason the eventual settlement was so high was that it was a full and final settlement (i.e., accounted for future use of the patented invention), not just a payment of damages that had already accrued. Finally, the litigation took 6 years, and in that time (2000-2006) the market for smart phones exploded, so RIM effectively racked up a lot of damages.
The point is that a lot of the large settlement was RIM's fault: it chose to fight a losing battle, it was a willful infringer, and it behaved unethically in the courtroom. It's hard to have a lot of sympathy for them.
In any event, the cost to end users was not that great. RIM has sold ~100 million BlackBerries. The cost of the settlement amounts to roughly $6 per unit, which is about a 2-5% royalty on the cost of each device. Compared to the cost of owning a smartphone (often well over $1000 per year when you factor in the voice and data plans), $6 isn't much.
Many of you may now be saying, sure 2-5% isn't much, but it adds up fast if you have to settle with multiple patent owners, each of which wants their 2-5%. That's true, and a significant litigation reform effort is building behind allowing defendants in patent infringement suits to present evidence regarding the royalty rates for patents other than the ones in suit. Right now, the jury doesn't get to hear that you have to pay royalties on X other patents for each device sold and that those royalties are typically very small (e.g., pennies per unit or.1% of the cost or somesuch), so it's common for the jury to award comparatively high royalties. There is an effort to change that to allow juries to work with a much more complete picture of how royalty structures work in the real world rather than viewing only the patents in suit in isolation.
Furthermore, it is settled law that discussion of a patented invention, including detailed explanation of how to implement it, is not infringement.
But in this case the code is a functioning implementation, which is quite a bit more than even a 'detailed explanation of how to implement it.' Furthermore, the availability of a functioning implementation means that it's trivial (even encouraged by the blog post) for others to use the implementation. So the blog author made the claimed invention (direct infringement) and induced others to use it (indirect infringement by active inducement), or so the patentee would probably argue anyway. This is not the frivolous claim that many here are painting it as, though it is a jerk move likely to hurt Shazam more than help it.
Last I looked Patents do not remove the right to "free speech" in any country.
Then you didn't look very hard. In the US, for example, the right to free speech is not absolute by any means. The government may prohibit defamatory speech such as libel and slander. It may regulate speech in a content-neutral manner (so-called time, place, and manner restrictions), such as ordinances regarding billboards. It may regulate obscene speech. The same Constitution that describes the right to free speech also gives Congress the power to grant patents and copyrights. There is some inherent tension between the First Amendment and the Patent & Copyright Clause, but there is no contradiction.
In this case, the argument (and it's a perfectly typical one) is that the code on the web page represents an active inducement to infringe the patent, for which the blogger would be liable for patent infringement. The ready-to-use code is a step too far towards actually using the claimed invention (which the patentee has the exclusive right to do). It would be one thing to discuss the song-recognition method in general, mathematical, or even pseudocode terms, but when you give people ready-to-use code that's too close to infringement. A court may or may not agree, but it's a close enough call that a cease & desist letter is legally appropriate, albeit kind of a jerk move on the part of the patentee.
In addition, my understanding is that this goes even further - there's nothing preventing him from developing his own implementation of their patent. The only issue arises when he distributes it beyond himself. IANAL, so this part I'm only 99.9% sure on.:)
I'm afraid you're wrong here. In the US, a patent gives the patentee the right to exclude others from making, using, selling, offering to sell, or importing the claimed invention. 35 USC 271. Now, of course, the patentee must actually sue for patent infringement, and that's unlikely in the case of garage tinkerers (those that don't post everything online, that is), but there is no exception to patent infringement for 'developing your own implementation.' There is a research exemption related to preparing data that will be presented to the FDA, but that's not relevant here.
This is BS. You don't actually mind the name, just THE ACRONYM. Any reason you're FORCED to use the most common abbreviated name instead of forming one of your own, or worse, USING THE FULL NAME?
Don't want to say "gimp"? Fine. So call it IMP, GNU-IMP, Image MP, etc. If the name bothered anyone all that much, they'd just use CinePaint instead.
Except when I want to point people to the homepage, gimp.org. Or when they launch the program and see GIMP in giant letters on the splash screen. And in their dock/taskbar. And their task switcher. And the titles of books written about it. And all over the Wikipedia page. Face it: GIMP is the de facto name of the program. If individuals try to call it something else, it will only lead to confusion, and a name change is too minor an issue to make an effective fork. Change needs to come from the project leaders recognizing that it's a stupid, counter-productive name that costs the project respect and marketshare.
The article mentions Scribus and Google Docs by name but dances around the GIMP, saying only that they used "free software instead of Photoshop." The GIMP's ridiculous name has cost it some valuable media exposure. How can the GIMP expect to be taken seriously by professionals when they don't even feel comfortable using the name?
To me, this is a good example of how free software development being divorced from dependence upon market success is sometimes a bad thing. A proprietary program with a name so bad that professionals avoid using it in print would rapidly be renamed. In fact, the name would probably be developed by a marketing team and focus group tested first to avoid the problem in the first place. But in the free software world the developers are free to stubbornly hold on to a frankly terrible name because there's a much weaker market success feedback loop.
These guys have been using their proprietary software for decades, they're used to every single button. Then they switch over to radicaly different software interface (hi Gimp!) for a single day... of course they're way less efficient.
Did you read the article? They produced one issue with free software, but they've been working on it for a while. For example, "News Editor Paul Tackett has been working days and nights, on top of his usual job, to set up most of the day's pages in a layout program called Scribus." Not all newspaper articles are written within 24 hours of going to print. Many are the product of several days or even weeks of work. The article implies that although only one issue was produced with the free software, it was the product of more than one day's work.
These guys have been using their proprietary software for decades, they're used to every single button.
You're exaggerating. What proprietary newsroom software has kept the same interface for 20 years? Even Photoshop 1.0 was only released exactly 20 years ago, and of course much of the interface has changed and furthermore I'd be surprised if anyone at this paper had been using it in production for 20 years.
Your point that we shouldn't read too much in to the difficulties the paper experienced with free software is valid, but you're overstating the case significantly.
The summary is a strange reading of these applications. The "Wearing Your Health on your Sleeve" invention, for example, has two apparent target markets. The first is unreliable patients (e.g., an unconscious patient or those with Alzheimer's or other mental health issues that make it difficult for the patient to accurately self-report medical information). This is basically a fancy version of a MedicAlert bracelet.
The second apparent target market is dating. But far from being used to report your 'unhealthy behavior' to potential dates, the target market here would be healthy people that want a way to advertise that information. The application doesn't even contain the word 'unhealthy' or phrase 'unhealthy behavior'; that was inserted by the submitter.
The "Kids' Personal Health Records Fed Into Video Games" application describes an extension of something that Wii Fit already does. In Wii Fit, your Mii (i.e., your in-game avatar) is given a larger waistline if the player is overweight. This will likely see use in connection with Microsoft's Kinect product. I don't see anything particularly scary here. In fact, it seems like a good way to make an exercise-type game both more immersive and better target both areas for improvement and avoid areas of difficulty (e.g., the invention could also be used to ensure that a character played by a paraplegic is given tasks that can be completed without moving ones legs).
The "Centralized Healthcare Data Management" application is a variation on existing incentive systems for employees who, for example, quit smoking.
Remember, too, that these are just patent applications. They aren't issued patents, and furthermore a patent is not a business plan. There's no particular reason to think that Microsoft or any other company is going to use these inventions to evil ends. If you see a patent for poison, for example, you shouldn't assume the inventor is planning to murder someone. They probably just want to sell pesticide.
If I want a better breakfast do I let people patent the steps in making waffles or do I let them patent an automatic waffle maker.
I see little advantage in the first over the second except that it lets them be lazier and not bother designing a machine to do it automatically.
First, a well written patent on a method for making waffles would actually read on an automatic waffle maker because it would only describe the essential steps of making waffles and not claim specifics like mixing by hand. Of course, the automatic waffle maker could still be patented separately, but the automatic waffle maker company would need a license from the method patentee before they could sell their product. So in the end, the public gets automatic waffle makers and the inventor of waffles gets a royalty for his or her (indirect) contribution to the invention of the automatic waffle maker. What, exactly, is the issue?
Second, you seem to be suggesting that a patent claiming a machine that carries out a method is okay whereas a more general patent claiming only the method is not. Why should it matter whether a doctor performs the diagnostic method or a machine analyzes a sample then prints out the new dose to be given?
Furthermore, what about the case where a person can actually perform the test more easily and cheaply than machines? Or when a machine cannot (yet) perform the task at all? For example, the sex of baby chickens is still determined by hand in most cases because machines are not yet capable of doing it, or at least not efficiently. Should we grant patents on methods unless a machine could do it? What if a machine can probably do it soon (i.e. within the lifetime of the patent)? Where and how is the PTO supposed to draw the line?
Sounds like there is prior art for this patent. No?
There are (basically) two ways to invalidate a patent based on prior art: anticipation and obviousness. Anticipation requires that a single piece of prior art (e.g., another patent, a paper in a journal, a web page, etc) describe each and every element of the claimed invention. The prior art must also enable someone to use the invention, which is why a dictionary isn't prior art for every invention imaginable; although a dictionary technically contains all the right words, they're not in a useful order. Clearly the method you describe would not anticipate another therapeutic method unless it was either identical to or a subset of the method you've described.
The other prior art-based invalidation is obviousness, which allows the combination of multiple pieces of prior art that would each by themselves be incomplete. Since the KSR decision, obviousness can also be based on a certain degree of common sense or common ingenuity rather than explicit teachings documented in evidence. So, the method you describe might be a part of a larger body of prior art that could establish the obviousness of a similar therapeutic method. For example, it could be combined with prior art describing a drug similar to levothyroxine to make obvious a method that was the same except for substituting that other drug for levothyroxine. After all, a doctor or researcher having ordinary skill in the art would probably find it obvious that a drug with a similar pharmacokinetic profile to levothyroxine could have its dosage optimized in the same way.
What it would not do, however, is make obvious all therapeutic methods based on measuring a substance, observing the level, and adjusting treatment because the nonobvious part is discovering exactly what the critical levels are and what the appropriate dose response is. Nothing about the method you described would suggest what the optimal level of, say, azathioprine is for someone with rheumatoid arthritis or how much to adjust the dose by given a certain level of azathioprine or its metabolites in the blood.
I'd be interested in actually hearing the audio of the arguments so that I could know the tone in which those questions were raised. Anyone have a link handy?
The audio recordings of the oral arguments in Bilski have not been released yet. They will probably be released at the beginning of the next term (i.e., in late September or early October).
But do the incentives for investment added outweigh the costs to society of other doctors or hospitals not being able to use these methods for 20 years?
Why do you think the methods would be unavailable to 'other doctors or hospitals?' The patent holders would want to maximize revenue by making the methods available to as many licensees as possible. The Prometheus v. Mayo Clinic case, for example, was not about doctors at Mayo being unable to use the diagnostic method or patients not having access to it; they just didn't want to pay Prometheus for it.
People sometimes invent this boogeyman of the greedy inventor or company patenting something then refusing to license or practice the invention. After all, why would a company invest in R&D, then invest between tens of thousands and millions in patenting the invention in the US (and likely abroad), and further invest potentially millions in litigation to prevent others from using the invention? This essentially never happens.
And remember, of course, that the US government has 'march-in rights' to any NIH-funded invention. And that the US government can always infringe any patent and only pay the patentee a reasonable royalty (the government has immunity from injunctions to prevent patent infringement). And finally the government can always take a patent outright, in the worst case. There is really no danger that life-saving cures will sit on the shelf. To the extent they ever do, the most likely culprit is that the regulatory regime makes bringing the product or service to market more expensive than it's worth, not that a patent is the problem.
Um...did you listen to/read the oral arguments from last November? They fucking CRUCIFIED method patents.
The Supreme Court Justices often push very hard against all sides. It's very difficult to try to guess at the outcome based on a line of questioning. The Court is loath to revisit cases, so it tries to get the result correct the first time, and that requires being critical even of the side the Justices might agree with.
Now, to be sure, most observers felt the Court would come down harder on business method patents than it did, but it wasn't so much because of the way oral argument went. Because of the way the Federal Circuit works (as opposed to the regional circuits), the Supreme Court rarely grants certiorari simply to affirm the Federal Circuit, so it seemed likely that the Court would reverse, and if it were to reverse it seemed likely that it would impose a stricter rule, not a looser one, as lately the Supreme Court has typically weakened patents rather than strengthened them (see, e.g., the eBay and KSR cases). And of course virtually no one thought that the Court would actually say that the application-in-question (i.e., the Bilski & Warsaw application) claimed patentable subject matter, and it would be very difficult to announce an expansive subject matter rule that nonetheless excluded the Bilski application, so a narrow rule or test seemed likely for that reason as well.
In sum: reading oral argument tea leaves won't get you very far, but the result was indeed still surprising given the Court's recent history of weakening patents and willingness to create new rules rather than defer to the Federal Circuit.
I thought that a patent was still permitted if (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. It's hard to believe that a drug or gene couldn't meet those qualifications if a piece of software can.
Well, first, the Supreme Court held that the machine-or-transformation test, which you recited, is only a tool or clue to the patentability of a method, not the sole test. Second, the diagnostic patents being discussed here generally take this form:
"A method for treating disease X, comprising performing test A, observing the result, and administering treatment foo, bar, or baz depending on the result."
The issue here is that in many of these patents test A and treatments foo, bar, and baz are all known in the art. The invention is the discovery of the association or correlation between test results and the optimal treatment (e.g., if you have a certain gene then you get this drug, but if you lack it you should get this other drug). The Federal Circuit has hinted that it is the observing or correlating step that must pass the machine-or-transformation test; (possibly) the testing and (more likely) the treatment steps are merely 'insignificant postsolution activity' that can't rescue the patent from unpatentability.
In my opinion, however, such patents should be granted so long as they are new, useful, nonobvious, and adequately specified in the patent. Subject matter is too crude a tool to filter out undesirable patents. As a society we want investment into new diagnostic methods and personalized medicine. For example, the availability of fast, inexpensive genetic testing has opened up new doors to making sure that people are given the best drug at the best dose, but determining which genes match which drugs and doses will require significant studies. We can encourage investment in those kinds of studies by offering patent protection to the resulting diagnostic and therapeutic methods.
Once again a Slashdot patent story is posted with reference to the titles of the patents. Patent titles are legally meaningless. The patentee doesn't even have to supply one; the Patent Office will write one for you if you leave it out. What matters are the claims read in light of the specification.
The '768 patent was originally assigned to Silicon Graphics. It was one of several SGI patents assigned to Microsoft in 2002 as part of a $62.5 million deal.
Some of the patents are related. The '164 patent, for example, was the result of a continuation application based on the application that eventually became the '879 patent.
Anyone looking at these from a prior art perspective should bear in mind that the patents have quite early priority dates. Most of them seem to date from the mid-90s. The '164 and '879 patents, for example, stretch back to June 16, 1994.
What the OP is describing exists already in various forms, all of which cost money. That they exist should not be surprising as they are extremely useful to attorneys, legislators, judges, etc.
There are two companies, WestLaw and LexisNexis, that have online databases of just about all the statutes, cases, regulations, constitutions, treaties, and academic articles ever published in the US and the UK, which is relevant to US law for certain common law issues. Access to both is not cheap, but using at least one is a necessity for an attorney. Their databases are actually even more extensive than that, but those are the important ones for the question.
WestLaw has a system (the West Key Number) that is sort of an ontology of the law: just about every individual issue imaginable is assigned a key number. So you can find cases in a given jurisdiction by looking up your issues in the index and then finding cases that discuss those issues. The key numbers are the same between jurisdictions, so once you know the number you can use it to find cases in every state or federal court.
LexisNexis offers a different system, which it took from Shephard's Digest, which was a kind of print citation history of every case and statute in the country. What 'Shephardizing' does is give you a list of every case that has cited a given case or statute and tells you how it was cited (e.g., favorably, unfavorably, overruled, etc). It can also tell you if a case or statute was overruled by statute. It can also tell you what academic writing has cited the case or statute, but that's mostly of interest to academics.
Both companies also offer services for tracking the revision history of statutes.
WestLaw still publishes a print version of its Key Number System indices, but the print version is expensive, laborious to keep up to date, and requires a full law library (e.g., print versions of the cases) to really use effectively. Online access is cheaper and more convenient in the end. The exception to this is using someone else's law library, which can be found at a law school or a very large public library. Many law schools make their collections available to the public during normal business hours, although books cannot be checked out.
There are many other approaches: legal encyclopedias, treatises, the American Law Reports, 50 state surveys, etc. To find out more, buy a book on legal research or become a law librarian, paralegal, or attorney.
If you read the description, the claimed invention is not about trial and error development. The idea is that every time code is refactored, the development environment will tag the refactoring. Refactorings that could affect performance are transparently undone at compile time, so long as it wouldn't change the functional behavior of the program. Thus, the developer sees nice, neat comprehensible code, and the compiler sees more optimized, compiler-friendly code.
Also, if you look the application up on PAIR (the PTO's public patent application database, which contains more detail than the regular patent search or Google Patents), you'll see that it's a new case. That is, the Patent Office hasn't examined the application yet. It's highly likely that after a few rounds of office actions the claims will not look like the current ones. They will probably be narrower and hew more closely to the description in the specification.
Hopefully this will go a long way in ensuring that patents on genes do not stand in the way of research.
If you look at the empirical data, gene patents don't interfere with research. In a survey of 414 biomedical researchers at universities, government, and nonprofit institutions, none of the 381 respondents reported abandoning a line of research due to patents and only five delayed completion of an experiment for more than one month. Only one respondent reported paying for access to research materials covered by a patent and the fee was under $100. The paper concluded that "access to patents on knowledge inputs rarely imposes a significant burden on academic biomedical research." John P. Walsh, et al, "View from the Bench: Patents and Material Transfers," 309 Science 2002 (September 2005).
The Patent Office does not do that and hasn't for years, except of course for papers that are mailed or faxed in. The Patent Office's Electronic Filing System is an end-to-end electronic system for the most part.
Now, the EFS system does convert searchable PDFs to bitmap PDFs, which causes them to lose their searchability and greatly increases the file size, which is still incredibly backwards, but not quite as bad as printing things out and scanning them back in.
Slashdot Mirror
I'd comment that most systems of rules state that more specific rules have precedence.
Ah, but most systems of rules also state that later rules take precedence over earlier rules. So while the Copyright Clause is arguably more specific than the First Amendment, it's also earlier in time. So the tension remains.
What is so unclear about the constitution?
Here are two examples, just to get you started. "The Congress shall have Power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" but yet "Congress shall make no law...abridging the freedom of speech, or of the press."
So which one trumps? Can Congress make a law abridging the freedom of speech or of the press in order to grant an author the exclusive right to his or her writings? And, hey, what about visual artists? They don't write anything, so do they get copyright protection or not? Or composers? And what about laws that only incidentally affect the press, like taxes on ink or printing equipment? What about a general sales tax that happens to affect ink?
Not so clear, is it?
Or how about this one "The Congress shall have Power...To regulate Commerce...among the several States?" What does that mean? Does it apply only to things like interstate taxes? What about the infrastructure of commerce like interstate roads? What about products sold across state lines? What if the seller doesn't ship it across state lines but the buyer brings it across? What if one state subsidizes the heck out of a product, leading to competition problems with the neighboring state? What about products that are illegal but sold across state lines, like drugs? What if the product is being given away, like open source software, is that still commerce?
So you can see that the Constitution is not very clear at all on a lot of points. Sometimes it's because parts of the document are in tension with other parts. Other times it's because the words are just plain vague. Scholars, politicians, and judges have spent centuries trying to figure out the best way to balance those tensions and interpret those vague words.
First and foremost, if you're being honest with yourself, these kinds of decisions are too important to leave up to people in non-elected positions. Just because I agree with the decision they made doesn't make it right to try and do an end run around the politicos to get their way.
The FCC can only do what the law that created it allows it to do, plus other powers granted to it by Congress through additional legislation. This isn't an "end run around the politicos." The legislature has already given the FCC the power to do this. It's the whole reason we have agencies: we grant rule-making power to experts so that Congress can focus on other issues.
Imagine if the FCC were doing the opposite, and trying to encourage a non-neutral net.
Then we'd have to live with the consequences of an agency exercising the powers duly granted to it by Congress. We could petition the FCC not do so, and we could lobby Congress to override it, but there wouldn't be anything inherently inappropriate about it as long as it's within the FCC's rulemaking authority.
Secondly, this wouldn't be a law on the books. All it would take for this policy to change would be a new management at the FCC. That means both that businesses couldn't count on it staying the same for any kind of long term and that the next election cycle could see it thrown out the window without so much as a vote in congress.
As a technical point it would be "on the books" (the Code of Federal Regulations) and it would probably carry with it the force of law. But anyway, your argument could just as easily be applied to all regulations. The fact that they can be changed without Congressional approval is a feature, not a bug. It allows the regulations to be updated more frequently, for one thing. For another, deference to the executive branch is a decision Congress made when it passed the law giving the FCC the power to make these kinds of rules.
And anyway, that argument basically amounts to "since this good thing might be taken away later, we shouldn't bother with it in the first place," which isn't a very good argument at all since ultimately everything is subject to change, even the Constitution.
You mention one case whre prior art would have to be from 1990, so I assume you mean that one was filed in 1991; when was it issued? Isn't the patent term 17 years?
That patent (5479472) issued in 1995. The patent term used to be 17 years from the date of issue. It is now 20 years from the date of filing, but it was 17 years from issue when that patent was filed. Anyway, so that patent will be in force until approximately 2012. But remember that the statute of limitations on patent infringement is 6 years, so NTP could theoretically sue up until 2018 for infringement that occurred as late as when the patent expired in 2012.
So, their patents can't possibly be valid. I'd look them up and show exactly why
It's no secret which patents NTP owns, and the patents will necessarily be named in the complaint filed with the court, which like most federal court documents will be available on the PACER system for a nominal fee. I don't why you'd expect NTP to name the patents in its press release.
Combining email with IP-over-GSM is simply combining two existing technologies, which isn't patent worthy, so they couldn't have patented that
In fact, combining two existing technologies is patent worthy if the combination is new, useful, nonobvious, and adequately described in the patent application. So after you review that list of patents I linked, you'll need to show that the claimed inventions (i.e., the claims as read in light of the specification) are either fully described in a single piece of prior art (i.e., anticipated) or that there exist multiple pieces of prior art that can be combined to fully describe the invention (i.e., that the invention was obvious at the time). Good luck with that, since several massive companies (RIM included) have already had millions of dollars worth of incentives to find said prior art. By the way, most of the patents date back to around 1995, so your prior art will need to be from roughly around 1994. In one case your prior art will need to be from around 1990. What seems perfectly obvious now was probably not so obvious back then.
While it's true that NTP received a $612.5 million damages award from RIM, it's important to remember that NTP initially offered to settle with RIM for approximately $6 million. Remember too that RIM was found to have been a willful infringer, so its damages were increased and included attorney's fees. It also engaged in some courtroom shenanigans that likely contributed to the increased damages award. Another reason the eventual settlement was so high was that it was a full and final settlement (i.e., accounted for future use of the patented invention), not just a payment of damages that had already accrued. Finally, the litigation took 6 years, and in that time (2000-2006) the market for smart phones exploded, so RIM effectively racked up a lot of damages.
The point is that a lot of the large settlement was RIM's fault: it chose to fight a losing battle, it was a willful infringer, and it behaved unethically in the courtroom. It's hard to have a lot of sympathy for them.
In any event, the cost to end users was not that great. RIM has sold ~100 million BlackBerries. The cost of the settlement amounts to roughly $6 per unit, which is about a 2-5% royalty on the cost of each device. Compared to the cost of owning a smartphone (often well over $1000 per year when you factor in the voice and data plans), $6 isn't much.
Many of you may now be saying, sure 2-5% isn't much, but it adds up fast if you have to settle with multiple patent owners, each of which wants their 2-5%. That's true, and a significant litigation reform effort is building behind allowing defendants in patent infringement suits to present evidence regarding the royalty rates for patents other than the ones in suit. Right now, the jury doesn't get to hear that you have to pay royalties on X other patents for each device sold and that those royalties are typically very small (e.g., pennies per unit or .1% of the cost or somesuch), so it's common for the jury to award comparatively high royalties. There is an effort to change that to allow juries to work with a much more complete picture of how royalty structures work in the real world rather than viewing only the patents in suit in isolation.
Furthermore, it is settled law that discussion of a patented invention, including detailed explanation of how to implement it, is not infringement.
But in this case the code is a functioning implementation, which is quite a bit more than even a 'detailed explanation of how to implement it.' Furthermore, the availability of a functioning implementation means that it's trivial (even encouraged by the blog post) for others to use the implementation. So the blog author made the claimed invention (direct infringement) and induced others to use it (indirect infringement by active inducement), or so the patentee would probably argue anyway. This is not the frivolous claim that many here are painting it as, though it is a jerk move likely to hurt Shazam more than help it.
Last I looked Patents do not remove the right to "free speech" in any country.
Then you didn't look very hard. In the US, for example, the right to free speech is not absolute by any means. The government may prohibit defamatory speech such as libel and slander. It may regulate speech in a content-neutral manner (so-called time, place, and manner restrictions), such as ordinances regarding billboards. It may regulate obscene speech. The same Constitution that describes the right to free speech also gives Congress the power to grant patents and copyrights. There is some inherent tension between the First Amendment and the Patent & Copyright Clause, but there is no contradiction.
In this case, the argument (and it's a perfectly typical one) is that the code on the web page represents an active inducement to infringe the patent, for which the blogger would be liable for patent infringement. The ready-to-use code is a step too far towards actually using the claimed invention (which the patentee has the exclusive right to do). It would be one thing to discuss the song-recognition method in general, mathematical, or even pseudocode terms, but when you give people ready-to-use code that's too close to infringement. A court may or may not agree, but it's a close enough call that a cease & desist letter is legally appropriate, albeit kind of a jerk move on the part of the patentee.
In addition, my understanding is that this goes even further - there's nothing preventing him from developing his own implementation of their patent. The only issue arises when he distributes it beyond himself. IANAL, so this part I'm only 99.9% sure on. :)
I'm afraid you're wrong here. In the US, a patent gives the patentee the right to exclude others from making, using, selling, offering to sell, or importing the claimed invention. 35 USC 271. Now, of course, the patentee must actually sue for patent infringement, and that's unlikely in the case of garage tinkerers (those that don't post everything online, that is), but there is no exception to patent infringement for 'developing your own implementation.' There is a research exemption related to preparing data that will be presented to the FDA, but that's not relevant here.
This is BS. You don't actually mind the name, just THE ACRONYM. Any reason you're FORCED to use the most common abbreviated name instead of forming one of your own, or worse, USING THE FULL NAME?
Don't want to say "gimp"? Fine. So call it IMP, GNU-IMP, Image MP, etc. If the name bothered anyone all that much, they'd just use CinePaint instead.
Except when I want to point people to the homepage, gimp.org. Or when they launch the program and see GIMP in giant letters on the splash screen. And in their dock/taskbar. And their task switcher. And the titles of books written about it. And all over the Wikipedia page. Face it: GIMP is the de facto name of the program. If individuals try to call it something else, it will only lead to confusion, and a name change is too minor an issue to make an effective fork. Change needs to come from the project leaders recognizing that it's a stupid, counter-productive name that costs the project respect and marketshare.
The article mentions Scribus and Google Docs by name but dances around the GIMP, saying only that they used "free software instead of Photoshop." The GIMP's ridiculous name has cost it some valuable media exposure. How can the GIMP expect to be taken seriously by professionals when they don't even feel comfortable using the name?
To me, this is a good example of how free software development being divorced from dependence upon market success is sometimes a bad thing. A proprietary program with a name so bad that professionals avoid using it in print would rapidly be renamed. In fact, the name would probably be developed by a marketing team and focus group tested first to avoid the problem in the first place. But in the free software world the developers are free to stubbornly hold on to a frankly terrible name because there's a much weaker market success feedback loop.
These guys have been using their proprietary software for decades, they're used to every single button.
Then they switch over to radicaly different software interface (hi Gimp!) for a single day... of course they're way less efficient.
Did you read the article? They produced one issue with free software, but they've been working on it for a while. For example, "News Editor Paul Tackett has been working days and nights, on top of his usual job, to set up most of the day's pages in a layout program called Scribus." Not all newspaper articles are written within 24 hours of going to print. Many are the product of several days or even weeks of work. The article implies that although only one issue was produced with the free software, it was the product of more than one day's work.
These guys have been using their proprietary software for decades, they're used to every single button.
You're exaggerating. What proprietary newsroom software has kept the same interface for 20 years? Even Photoshop 1.0 was only released exactly 20 years ago, and of course much of the interface has changed and furthermore I'd be surprised if anyone at this paper had been using it in production for 20 years.
Your point that we shouldn't read too much in to the difficulties the paper experienced with free software is valid, but you're overstating the case significantly.
The summary is a strange reading of these applications. The "Wearing Your Health on your Sleeve" invention, for example, has two apparent target markets. The first is unreliable patients (e.g., an unconscious patient or those with Alzheimer's or other mental health issues that make it difficult for the patient to accurately self-report medical information). This is basically a fancy version of a MedicAlert bracelet.
The second apparent target market is dating. But far from being used to report your 'unhealthy behavior' to potential dates, the target market here would be healthy people that want a way to advertise that information. The application doesn't even contain the word 'unhealthy' or phrase 'unhealthy behavior'; that was inserted by the submitter.
The "Kids' Personal Health Records Fed Into Video Games" application describes an extension of something that Wii Fit already does. In Wii Fit, your Mii (i.e., your in-game avatar) is given a larger waistline if the player is overweight. This will likely see use in connection with Microsoft's Kinect product. I don't see anything particularly scary here. In fact, it seems like a good way to make an exercise-type game both more immersive and better target both areas for improvement and avoid areas of difficulty (e.g., the invention could also be used to ensure that a character played by a paraplegic is given tasks that can be completed without moving ones legs).
The "Centralized Healthcare Data Management" application is a variation on existing incentive systems for employees who, for example, quit smoking.
Remember, too, that these are just patent applications. They aren't issued patents, and furthermore a patent is not a business plan. There's no particular reason to think that Microsoft or any other company is going to use these inventions to evil ends. If you see a patent for poison, for example, you shouldn't assume the inventor is planning to murder someone. They probably just want to sell pesticide.
If I want a better breakfast do I let people patent the steps in making waffles or do I let them patent an automatic waffle maker.
I see little advantage in the first over the second except that it lets them be lazier and not bother designing a machine to do it automatically.
First, a well written patent on a method for making waffles would actually read on an automatic waffle maker because it would only describe the essential steps of making waffles and not claim specifics like mixing by hand. Of course, the automatic waffle maker could still be patented separately, but the automatic waffle maker company would need a license from the method patentee before they could sell their product. So in the end, the public gets automatic waffle makers and the inventor of waffles gets a royalty for his or her (indirect) contribution to the invention of the automatic waffle maker. What, exactly, is the issue?
Second, you seem to be suggesting that a patent claiming a machine that carries out a method is okay whereas a more general patent claiming only the method is not. Why should it matter whether a doctor performs the diagnostic method or a machine analyzes a sample then prints out the new dose to be given?
Furthermore, what about the case where a person can actually perform the test more easily and cheaply than machines? Or when a machine cannot (yet) perform the task at all? For example, the sex of baby chickens is still determined by hand in most cases because machines are not yet capable of doing it, or at least not efficiently. Should we grant patents on methods unless a machine could do it? What if a machine can probably do it soon (i.e. within the lifetime of the patent)? Where and how is the PTO supposed to draw the line?
Sounds like there is prior art for this patent. No?
There are (basically) two ways to invalidate a patent based on prior art: anticipation and obviousness. Anticipation requires that a single piece of prior art (e.g., another patent, a paper in a journal, a web page, etc) describe each and every element of the claimed invention. The prior art must also enable someone to use the invention, which is why a dictionary isn't prior art for every invention imaginable; although a dictionary technically contains all the right words, they're not in a useful order. Clearly the method you describe would not anticipate another therapeutic method unless it was either identical to or a subset of the method you've described.
The other prior art-based invalidation is obviousness, which allows the combination of multiple pieces of prior art that would each by themselves be incomplete. Since the KSR decision, obviousness can also be based on a certain degree of common sense or common ingenuity rather than explicit teachings documented in evidence. So, the method you describe might be a part of a larger body of prior art that could establish the obviousness of a similar therapeutic method. For example, it could be combined with prior art describing a drug similar to levothyroxine to make obvious a method that was the same except for substituting that other drug for levothyroxine. After all, a doctor or researcher having ordinary skill in the art would probably find it obvious that a drug with a similar pharmacokinetic profile to levothyroxine could have its dosage optimized in the same way.
What it would not do, however, is make obvious all therapeutic methods based on measuring a substance, observing the level, and adjusting treatment because the nonobvious part is discovering exactly what the critical levels are and what the appropriate dose response is. Nothing about the method you described would suggest what the optimal level of, say, azathioprine is for someone with rheumatoid arthritis or how much to adjust the dose by given a certain level of azathioprine or its metabolites in the blood.
I'd be interested in actually hearing the audio of the arguments so that I could know the tone in which those questions were raised. Anyone have a link handy?
The audio recordings of the oral arguments in Bilski have not been released yet. They will probably be released at the beginning of the next term (i.e., in late September or early October).
But do the incentives for investment added outweigh the costs to society of other doctors or hospitals not being able to use these methods for 20 years?
Why do you think the methods would be unavailable to 'other doctors or hospitals?' The patent holders would want to maximize revenue by making the methods available to as many licensees as possible. The Prometheus v. Mayo Clinic case, for example, was not about doctors at Mayo being unable to use the diagnostic method or patients not having access to it; they just didn't want to pay Prometheus for it.
People sometimes invent this boogeyman of the greedy inventor or company patenting something then refusing to license or practice the invention. After all, why would a company invest in R&D, then invest between tens of thousands and millions in patenting the invention in the US (and likely abroad), and further invest potentially millions in litigation to prevent others from using the invention? This essentially never happens.
And remember, of course, that the US government has 'march-in rights' to any NIH-funded invention. And that the US government can always infringe any patent and only pay the patentee a reasonable royalty (the government has immunity from injunctions to prevent patent infringement). And finally the government can always take a patent outright, in the worst case. There is really no danger that life-saving cures will sit on the shelf. To the extent they ever do, the most likely culprit is that the regulatory regime makes bringing the product or service to market more expensive than it's worth, not that a patent is the problem.
Um...did you listen to/read the oral arguments from last November? They fucking CRUCIFIED method patents.
The Supreme Court Justices often push very hard against all sides. It's very difficult to try to guess at the outcome based on a line of questioning. The Court is loath to revisit cases, so it tries to get the result correct the first time, and that requires being critical even of the side the Justices might agree with.
Now, to be sure, most observers felt the Court would come down harder on business method patents than it did, but it wasn't so much because of the way oral argument went. Because of the way the Federal Circuit works (as opposed to the regional circuits), the Supreme Court rarely grants certiorari simply to affirm the Federal Circuit, so it seemed likely that the Court would reverse, and if it were to reverse it seemed likely that it would impose a stricter rule, not a looser one, as lately the Supreme Court has typically weakened patents rather than strengthened them (see, e.g., the eBay and KSR cases). And of course virtually no one thought that the Court would actually say that the application-in-question (i.e., the Bilski & Warsaw application) claimed patentable subject matter, and it would be very difficult to announce an expansive subject matter rule that nonetheless excluded the Bilski application, so a narrow rule or test seemed likely for that reason as well.
In sum: reading oral argument tea leaves won't get you very far, but the result was indeed still surprising given the Court's recent history of weakening patents and willingness to create new rules rather than defer to the Federal Circuit.
I thought that a patent was still permitted if (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. It's hard to believe that a drug or gene couldn't meet those qualifications if a piece of software can.
Well, first, the Supreme Court held that the machine-or-transformation test, which you recited, is only a tool or clue to the patentability of a method, not the sole test. Second, the diagnostic patents being discussed here generally take this form:
"A method for treating disease X, comprising performing test A, observing the result, and administering treatment foo, bar, or baz depending on the result."
The issue here is that in many of these patents test A and treatments foo, bar, and baz are all known in the art. The invention is the discovery of the association or correlation between test results and the optimal treatment (e.g., if you have a certain gene then you get this drug, but if you lack it you should get this other drug). The Federal Circuit has hinted that it is the observing or correlating step that must pass the machine-or-transformation test; (possibly) the testing and (more likely) the treatment steps are merely 'insignificant postsolution activity' that can't rescue the patent from unpatentability.
In my opinion, however, such patents should be granted so long as they are new, useful, nonobvious, and adequately specified in the patent. Subject matter is too crude a tool to filter out undesirable patents. As a society we want investment into new diagnostic methods and personalized medicine. For example, the availability of fast, inexpensive genetic testing has opened up new doors to making sure that people are given the best drug at the best dose, but determining which genes match which drugs and doses will require significant studies. We can encourage investment in those kinds of studies by offering patent protection to the resulting diagnostic and therapeutic methods.
Full Disclosure: I worked with the team that wrote the amicus brief for Dr. Ananda Chakrabarty (of Diamond v. Chakrabarty fame) in the Bilski case.
Once again a Slashdot patent story is posted with reference to the titles of the patents. Patent titles are legally meaningless. The patentee doesn't even have to supply one; the Patent Office will write one for you if you leave it out. What matters are the claims read in light of the specification.
Anyway, from the complaint, the patents in question are:
7,251,653
5,742,768
5,644,737
6,263,352
6,122,558
6,542,164
6,281,879
5,845,077 (the leading 5 was left off in the complaint, but this is the right patent)
5,941,947
The '768 patent was originally assigned to Silicon Graphics. It was one of several SGI patents assigned to Microsoft in 2002 as part of a $62.5 million deal.
Some of the patents are related. The '164 patent, for example, was the result of a continuation application based on the application that eventually became the '879 patent.
Anyone looking at these from a prior art perspective should bear in mind that the patents have quite early priority dates. Most of them seem to date from the mid-90s. The '164 and '879 patents, for example, stretch back to June 16, 1994.
Protecting for 20 years would be prohibitively expensive, $104,857,600. No sane company would pay that much.
Actually, for many pharmaceutical companies it would be entirely rational to pay that much for their so-called blockbuster drugs.
What the OP is describing exists already in various forms, all of which cost money. That they exist should not be surprising as they are extremely useful to attorneys, legislators, judges, etc.
There are two companies, WestLaw and LexisNexis, that have online databases of just about all the statutes, cases, regulations, constitutions, treaties, and academic articles ever published in the US and the UK, which is relevant to US law for certain common law issues. Access to both is not cheap, but using at least one is a necessity for an attorney. Their databases are actually even more extensive than that, but those are the important ones for the question.
WestLaw has a system (the West Key Number) that is sort of an ontology of the law: just about every individual issue imaginable is assigned a key number. So you can find cases in a given jurisdiction by looking up your issues in the index and then finding cases that discuss those issues. The key numbers are the same between jurisdictions, so once you know the number you can use it to find cases in every state or federal court.
LexisNexis offers a different system, which it took from Shephard's Digest, which was a kind of print citation history of every case and statute in the country. What 'Shephardizing' does is give you a list of every case that has cited a given case or statute and tells you how it was cited (e.g., favorably, unfavorably, overruled, etc). It can also tell you if a case or statute was overruled by statute. It can also tell you what academic writing has cited the case or statute, but that's mostly of interest to academics.
Both companies also offer services for tracking the revision history of statutes.
WestLaw still publishes a print version of its Key Number System indices, but the print version is expensive, laborious to keep up to date, and requires a full law library (e.g., print versions of the cases) to really use effectively. Online access is cheaper and more convenient in the end. The exception to this is using someone else's law library, which can be found at a law school or a very large public library. Many law schools make their collections available to the public during normal business hours, although books cannot be checked out.
There are many other approaches: legal encyclopedias, treatises, the American Law Reports, 50 state surveys, etc. To find out more, buy a book on legal research or become a law librarian, paralegal, or attorney.
If you read the description, the claimed invention is not about trial and error development. The idea is that every time code is refactored, the development environment will tag the refactoring. Refactorings that could affect performance are transparently undone at compile time, so long as it wouldn't change the functional behavior of the program. Thus, the developer sees nice, neat comprehensible code, and the compiler sees more optimized, compiler-friendly code.
Also, if you look the application up on PAIR (the PTO's public patent application database, which contains more detail than the regular patent search or Google Patents), you'll see that it's a new case. That is, the Patent Office hasn't examined the application yet. It's highly likely that after a few rounds of office actions the claims will not look like the current ones. They will probably be narrower and hew more closely to the description in the specification.
Hopefully this will go a long way in ensuring that patents on genes do not stand in the way of research.
If you look at the empirical data, gene patents don't interfere with research. In a survey of 414 biomedical researchers at universities, government, and nonprofit institutions, none of the 381 respondents reported abandoning a line of research due to patents and only five delayed completion of an experiment for more than one month. Only one respondent reported paying for access to research materials covered by a patent and the fee was under $100. The paper concluded that "access to patents on knowledge inputs rarely imposes a significant burden on academic biomedical research." John P. Walsh, et al, "View from the Bench: Patents and Material Transfers," 309 Science 2002 (September 2005).
The Patent Office does not do that and hasn't for years, except of course for papers that are mailed or faxed in. The Patent Office's Electronic Filing System is an end-to-end electronic system for the most part.
Now, the EFS system does convert searchable PDFs to bitmap PDFs, which causes them to lose their searchability and greatly increases the file size, which is still incredibly backwards, but not quite as bad as printing things out and scanning them back in.