Another rambling mess from Mr. Haselton
on
Suspension of Disbelief
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· Score: 4, Interesting
Once again Mr. Haselton demonstrates his tremendous ignorance of the law by attempting to analyze it from his own preconceived first principles using his own methods of reasoning rather than from within the appropriate legal framework using legal reasoning.
Judges are not like doctors who look at a mammogram, and draw on experience that the general public does not have, in order to see something that would be hidden from the rest of us.
The general public does not have substantial legal experience or knowledge, so judges do indeed see something that would be hidden from most people, Mr. Haselton included, evidently.
In cases like these, judges simply have multiple plausible interpretations in front of them, and they pick one. As such they're acting more like referees (who make a decision so that the game -- or, in this case, society -- can move on) than true "experts".
Although Mr. Haselton almost certainly does not know it, this is close to a critical legal studies view of jurisprudence. It is a controversial view, to put it mildly, and the majority of judges and attorneys do not subscribe to it.
There is a temptation to think that there is some consistent reasoning behind the different courts' rulings...This, I think, is nonsense, an attempt to put a consistent theory on top of a legal system that does not follow consistent rules from one court ruling to the next.
Those rulings were written by judges in different circuits who were thus bound by different precedents. Furthermore, one was written by a district court judge who is generally constrained to follow the law in his circuit. The other was a decision on appeal written by a circuit judges who were considerably more free to deviate from prior precedent. Mr. Haselton is comparing apples and oranges.
And indeed in the 3rd Circuit case you see 3rd Circuit cases cited, and in the Southern District of Florida case you see different cases cited, including the earlier 3rd Circuit case! There is no inconsistency here: the Southern Florida judge is distinguishing his case from the 3rd Circuit case based on the facts present in the particular case. Judges do this all the time.
Mr. Haselton seems to think that rulings are always simplistic hard and fast rules. Here he seems think that the rule is something like "students can't be punished for something they do online outside the school." In fact, as the case discusses, there is a complex legal and factual inquiry that is dependent on balancing competing factors and making fine distinctions. The case itself makes this clear: "While the Frederick decision offers little aid in solving the specific issue of student speech published on the internet, it does, however, make clear that the operative test is not a simple one of geography. Where the speech is published is not the only question that needs to be asked." (emphasis added)
But even if it's still a roll of the dice how a court would rule in a particular student free-speech case, what matters from the point of view of a principal in a future case, are the potential payoffs.
Here Mr. Haselton is stumbling onto law & economics. But his argument rests on several unstated assumptions: first, he's assuming that the principal is a rational actor, which is a pretty questionable assumption. Second, he's assuming that principal's have sufficient information on which to base a rational choice; in particular he's assuming that the principals (or their lawyers) know about this and related cases and know all of the ground facts of the case that a court might use to come to a decision. This is also a questionable assumption. He offers nothing to support either of these assumptions.
How did the legal and societal climate of attitudes toward people under 18, lead to a principal thinking that he could punish a 17-year-old for comment
So how is banning jailbreakers from the app store going to help with that? It seems like it would just force the jailbreakers to use pirated apps exclusively.
And assuming Apple limits the bans to the authors of jailbreaking tools rather than end users, it won't do much to deter the development of such tools. You don't need access to the app store to write the tools, and I'm going to go out on a limb and guess that the authors of the tools have no problem pirating apps themselves.
I think jailbreaking isn't a great idea, and Apple is within its rights to deter it through security improvements and the like, but this just seems counterproductive.
"However, his company would not manufacture them."
That doesn't say much. Apple doesn't actually manufacture iPods and Macs, for example. And a university that develops a new drug won't make it itself; it will spin the technology off into a for-proft company.
The details of the business organization are largely irrelevant. The main thing is that they've built a functioning product that they intend to bring to market, perhaps through a subsidiary, perhaps a manufacturing partner, or perhaps by licensing the technology to all comers. That last option is in many ways the best for consumers because it creates competition in the marketplace for the best implementation of the underlying technology.
This came out of Intellectual Ventures, which Slashdot often derides as a patent troll that brainstorms ideas, patents them, then lives off of the licensing revenue without actually contributing real products to the world or even prototyping their vaguely defined ideas.
This shows that IV is quite capable of producing actual, useful products. Its business model is not limited to patent licensing revenue, which makes it more like, say, IBM, than a typical patent holding company.
Maybe, just maybe, IV is not the evil parasite that many on Slashdot made it out to be. In fact, it seems to be in the business of shooting evil parasites with lasers, which is pretty cool.
I've got a better idea. Since the government made up this "patent value" out of thin air in the first place, how about let the government decide how much it's worth.
That would probably require a constitutional amendment. The Fifth Amendment states "nor shall private property be taken for public use, without just compensation." Theoretically the Supreme Court could reinterpret 'just compensation' to mean 'whatever the government feels like,' but that would be an enormous break with precedent and would open the door to the government taking other kinds of property without paying for it or only paying a pittance.
Then I realized this is just clever Venture Capitalism. You want to throw $10M into a startup, to help it with a portion of startup costs for bringing the project to market. You don't want to throw a lot of money at R&D in the initial phases when you have no idea if the person/team/company in question will be able to deliver something legitimate or not.
Actually venture capitalism is usually most valuable at the R&D stage. The X-Prize is a VC who only wants to come in after the idea has already been proven. At that point you normally have no shortage of (non-VC) investors. Where you still need VC is when it's uncertain whether there's actually a market for the product or not.
That's why the space flight X-Prize was useful. Even once you had the proven technology there was no guarantee you were going to be able to recoup your costs because the market was so uncertain. The X-Prize helped overcome that by trying to ensure that the winner would at least break even. (Of course, the winner actually spent well over $10 million but you get the idea).
In this case, the market is guaranteed. Indeed, there are markets for the limited BCI that we have already. The first truly usable, safe BCI will make billions.
Sure, throwing $10M into a startup doing commercial space flight or Brain Computer Interfaces, etc, is peanuts compared to the eventual payoff from the market, $10M is still $10M and should at least provide a little help to anyone struggling to bring a great, proven idea to market.
The issue isn't getting the money to bring it to market. Proven BCI technology will have no shortage of investors willing to pay for patenting, FDA approval, manufacturing, etc. The issue with BCI is developing the technology in the first place, which requires real VC willing to get in at the R&D stage, existing corporate R&D, or non-commercial funding like NIH grants and university research.
Manned commercial space flight was different. Not only was the technology not there, but the market wasn't necessarily there either. So it needed both early funding (which the serious competitors had) and a guarantee that the investors wouldn't lose their shirts if the market failed to materialize. That's where the X-Prize stepped in.
if you think of it as an investment and an effective PR stunt, then it's still useful, I suppose.
Commercial space flight benefited from the PR, to be sure. But in the case of BCI, there's so much money to be made that the companies that would commercialize the technology will be paying plenty of attention, prize or no prize.
I don't mean to rain on the X-Prize's parade. BCI is a big deal, and I suppose the prize can't hurt. But I think there are areas where they could get more bang for their buck.
A $10 million prize is absolute peanuts compared to the obvious commercial value of a usable, non-invasive (or at least low-risk) BCI. Just for starters, an effective BCI would largely solve some of the major side effects of a stroke. That right there is a massive, multi-billion dollar market. Another $10 million is not going to substantially stimulate research and development in this area. It's like offering $10 million for a cure for cancer.
Furthermore, this is an invention with applications in dozens of areas. The company or individual that invents it would be swamped with licensing offers.
Compare this to the original X-Prize. There a prize was useful because there was no substantial pre-existing market for the technology being developed and there were relatively few areas of application for the technology. Under those circumstances a prize model makes sense.
But for situations like this one we already have a prize; it's called a patent. Even better, the value of the prize is determined by the market, so there's less of a risk of under or overvaluing the invention.
Personally I think that we should consider whether the government should be able to exercise eminent domain for patents in cases like this.
Exercising eminent domain in a patent case is usually a bad idea. The compensation the government has to pay for the taking is the value of the patents over their entire term, which in this case is likely to be billions of dollars (for example: Thomson, which is just one member of the MPEG LA patent pool, receives a few hundred million dollars a year in licensing revenue).
The end result is that the cost is spread over the entire tax base instead of being concentrated among the actual users of the technology. So someone who owns a single TV and doesn't watch much web video will end up paying far more than their share while someone who watches tons of web video and runs a video streaming service pays far too little. Ultimately it acts as a transfer of wealth from those who do not produce or consume H.264 video to those who do, which is kind of an odd basis on which to redistribute wealth.
Back then DMCA was not in existence and ATCA was something the RIAA and MPAA would dream about and forget the next morning. Once ACTA comes to life, They will find a way to kill VLC and anyone who dares to slowdown their cash flow.
The DMCA has nothing to do with patents. It's the Digital Millennium Copyright Act. Furthermore, decoding H.264 has nothing to do with circumventing DRM, so the DMCA wouldn't apply anyway.
As for ACTA, well, because of the secret nature of the negotations we don't know what exactly will come of it, but from what we do know it doesn't seem to have much to do with patents either. For example, a lot of ACTA has to do with international cooperation on the prosecution of criminal intellectual property rights infringement. But patent infringement is not a crime anywhere in the world that I know of (certainly not the US or Europe).
The parts of the draft dealing with civil liability do not significantly alter the existing law of patents. Furthermore, comments on the leaked draft from Australia, Singapore, and Canada suggest that different areas of IP should be treated differently, with Singapore and Canada explicitly calling for limiting the scope of ACTA to copyrights and trademarks. And since most of the text explicitly refers to 'pirated or counterfeit' goods, it's unlikely that patents will be substantially affected by the final version of the treaty.
Right, that's why there are no functional video players that support H.264. Except for Windows Media Player, which comes free with Windows. And Quicktime/iTunes, which comes free with OS X and are free for Windows. And VLC, which is free and usually comes free with Linux distributions. And MPlayer. And PowerDVD. And Totem. In fact there are at least 20 such players, some free, some proprietary. Every modern OS comes with a free, functional video player and there are several options if you don't like the one that comes in the box.
Software patents on video codecs didn't start with H.264. MPEG-1 was patented, so was MPEG-2. Royalties were sought in both cases. That didn't stop free and open source encoders and decoders from being produced, and nobody got sued or shut down.
The existence of a patent does not mean that the patent will be enforced in all cases. Patent owners, like other property owners, ignore low-value infringements all the time. It's generally not economically rational to sue free and open source software projects for patent infringement. There are several reasons:
1. Patents are territorial but FOSS development is international. If you get an injunction in one country, development and hosting will continue in others. Even if you had a patent in every single country in the world, enforcement would be incredibly expensive and not at all worth it.
2. You generally can't get money damages and an injunction--assuming you can get one--would be useless. The baseline for patent damages in the US is a reasonable royalty. But a FOSS project would never pay a royalty. So the reasonable royalty is $0. Lost profits are arguable, but even if you can get a judgment, good luck collecting it from free software developers. An injunction may be obtainable, but the code is out there; you can't delete something from the internet, and development will be continued by others either in this country or another one.
3. The cost is prohibitive. Assuming the defendants put up even the slightest fight it would cost the patentee tens of thousands of dollars to sue. And if the EFF/SFLC/RedHat/etc get involved it would probably cost the patentee's millions and risk invalidating the patents. Even if the patentee wins it's doubtful it could collect enough in damages or increased licensing revenue to offset the cost of litigation.
4. The PR is terrible. Suing volunteer developers is a great way to get a terrible reputation among the very people who decide what formats to use on websites. Start suing open source developers and expect to see IT workers all over the world recommend moving to unencumbered or at least litigation-free formats.
All of these reasons and more are why, despite tens of thousands of software patents having issued over the past couple of decades, the Open Source Software Patent Apocalypse has failed to materialize. It's just not a significant risk. The SWPat wiki has only incredibly weak sauce examples, most of which are merely potential dangers, not actual lawsuits or even threats of suits.
Yeah, it's definitely trademarked, but the issue isn't really food; it's the game itself and the viewing thereof. Registered trademark #0882283 from 1969 is for "Entertainment services in the nature of football exhibitions." Arguably a game watching party is a football exhibition, particularly where there's a cover fee of some kind or where the party is purely a commercial venture.
If that's not close enough there's registered trademark #3343714 from 2007, which is for "Television broadcasting services; television transmission services; distribution of television programming to cable and satellite television systems; distribution of television programs for others..." etc, etc. Arguably a Super Bowl Watching Party would fall under "distribution of television programs for others."
Just don't...call it a 'Super Bowl' party, since the term itself is copyright.
The term is not copyrighted. The term is trademarked.
The trademark status has advantages and disadvantages. Since it's been registered and in use for at least 5 years (since 1969 in fact), the trademark is much harder to invalidate, per 15 USC 1065. Unlike copyrights, trademarks really do last forever, given proper maintenance (yes, I realize that copyrights practically last forever too, but there are trademarks that are centuries old).
Some of the disadvantages of a trademark are that the remedies are weaker (no statutory damages) and the trademark holder must police the mark. You can't license it to just anybody. You have to maintain some control over the licensed good or service, typically in the form of quality standards. You also have to go after potential infringers. Failure to do so can lead to losing the mark.
It's that last requirement that is driving the NFL's actions here (well, that and the money to be made). Whether the law in fact requires them to be as strict about it as they are is another question, one that very few people on Slashdot are really competent to answer. Whether the law should require them to be so strict, however, is a different question and one that most of us probably agree on the answer to.
As a side note, footage of individual games is copyrighted. The NFL argues that footage of the game is licensed only for private viewing and not for commercial viewing, which is how they go after sports bars and the like. I would argue that if you put your game on the public airwaves, it should be fair game for live viewing. If they want to enter into a more restrictive license with the viewer they should put the game on pay per view, a premium channel, or a cable channel at the very least.
Non-practicing entities exist in other legal and business contexts. Consider a car rental company, for example. It might own thousands of cars, yet it does not build cars, sell cars, or use the cars itself. What's more, it charges an obscene fee to rent a car compared to buying one (~$20/day for a compact is $7300/year!).
Sounds a lot like a patent troll, right? It doesn't use the technology, it won't sell the technology outright, and it quite possibly didn't even invent it in the first place.
But what both kinds of NPE provide is convenience and certainty. People pay car rental companies a comparative fortune because it's cheaper than owning a car in every city you might want to fly to, and the car rental company provides certainty that the car will be available, in reasonably good condition, properly titled, etc.
By the same token, a patent holding company provides convenience and certainty. Patents and patent applications are publicly available, so you can avoid wasting time and money on duplicate research and development by simply seeking a license from a company that has already done the work. And of course a license gives you legal certainty. Knowing that your product is licensed reduces the risk of an infringement lawsuit, which makes things like developing venture capital and contracting with suppliers and distributors easier.
Now, of course, there are problems. Too may patents are too vague to be of much practical use to a practicing entity because they don't go into adequate detail on how to actually make and use the invention. In response the courts are moving towards tightening the written description and enablement requirements, which I support. Another problem is that too many patents are actually invalid, and Microsoft is currently asking the Supreme Court to make patents easier to invalidate by eliminating the strong presumption of validity that patents currently enjoy, which is another reform I support. (That's right, Microsoft is trying to make it easier to invalidate patents).
The answer to the problem of non-practicing entities is not to ban them outright, nor to engage in overly narrow reforms that will only add complexity to the law. The solution is simple, broad reform that will increase the societal value of all kinds of patents while at the same time reducing the incentive to file for unsupported patents.
how come patent trolls are awarded patents in the first place? Would it be possible to make an applicant show proof that they are in the planning stages or are currently using what they are trying to patent?
That's called a 'working requirement' or a requirement to practice the invention. A few countries have such a requirement (Turkey, for example), but the requirement is usually riddled with exceptions that make it essentially toothless. There are several reasons why a strong working requirement is a bad idea, as I explained in a comment on a recent Slashdot story that suggested forbidding patent ownership by or assignment to non-practicing entities.
In the US patents are personal property--and thus freely assignable--by statute. 35 U.S.C. 261. Assignability is also guaranteed by Article 28 of the TRIPS Agreement, which is a treaty that the US is party to. So changing the assignability of patents would require amending the law and withdrawing from or amending a very important international treaty.
And even if the law were changed, it would mean that hundreds of patent holding companies would suddenly lose their patent rights because of an action by the government. That's called a taking, and the ex-patent holders would be able to sue the government for the value of the patents. It would be a massive litigation and cost the tax payer an enormous amount of money.
But anyway, how would we implement such a requirement? We could require that patents only be assigned to an entity that intended to practice the invention. Sounds great, right? No more patent holding companies, therefore no more trolls. There are at least five big problems with that:
1. Not all patents can be freely practiced because of other patents surrounding the technology. Imagine I own a startup company. If I invent a new transistor design I can't be expected to practice it myself: other companies have patents on things like manufacturing processes, bus designs, chip packaging, etc. I would have to license dozens of other patents in order to sell chips with my new transistor design. But that's backwards. Instead, I should license my one patent to companies like Intel and AMD and let them do the manufacturing and sales. But a requirement to practice means I couldn't do that; I'd have to practice it myself.
2. And what about pure research institutions like universities? They can't be expected to also become manufacturers.
3. But suppose we say it's worth making universities sell their patents. So now the patent will be owned by a single practicing entity. The patent can no longer stay with the university and be licensed to whoever will pay the fee. The end result is less competition in the market place for the finished product.
4. Okay, suppose we say that it's sufficient that the patent owner license the patent to at least one entity that is going to practice it. But then the law is too narrow. Almost no patent trolls actually rely on litigation damages for income; it's too uncertain and the margins are too narrow--and often negative. Litigation is just a tool to extract a licensing fee. So the end result is that the trolls can point to a manufacturer who licenses the patent and nothing changes.
5. What about patents on technologies that are ahead of their time? For example, suppose I invented an amazing new transistor design. It will make computers much faster but it requires X-ray lithography in order to work. Well, X-ray lithography is not cost-effective yet, so I can't really practice my invention. Does my patent just evaporate? How does that spur innovation?
As you can see, there are a lot of problems with such a proposal.
Don't abbreviate it to NPE. Spell it out, each time - non-practicing entity. By just saying three letters, it weakens the point that these companies do nothing. They exist solely to sue.
Right, because universities, individual inventors, and non-profit research organizations do nothing and exist solely to sue. Oh, wait, those are actually common examples of non-practicing entities. For example, in the article the chart of damage awards exceeding $100 million lists 4 NPE plaintiffs, one of whom is an individual inventor (a doctor who invented a kind of drug-eluting stent) and another is Cornell University.
It does exactly what is described in the patent...Of course, the product is no longer sold, so that properly means you can reinvent the wheel where software is concerned
No, you can't, that's the whole point of prior art. Patents do not allow someone to take inventions out of the public domain. It (generally) doesn't matter if the prior art is still on sale or not.
More specifically, if there was software that did exactly what is claimed in the patent (i.e. is anticipatory prior art), and that software was in public use or on sale in the United States more than a year before this patent was applied for, then Google's patent is invalid as anticipated under 35 USC 102(b). If it didn't quite do what's claimed in the patent, then it is still probably strong prior art for invalidity due to obviousness.
Unfortunately since the patent has already been granted the Patent Office will only consider prior art in the form of patents and printed publications. Invalidity on the basis of other kinds of evidence, such as a copy of the software, generally only comes up in court cases. Was there a manual for the product that described this feature? Or perhaps an advertisement or product review that described it? Submitting prior art to the Patent Office is free, but whether they act on it is up to them. You can request reexamination, but that's not free.
If you're interested in submitting prior art to the Patent Office, you should contact a patent agent or patent attorney about preparing the necessary forms and documents.
Google isn't the only site that displays news on stock charts this way, and I don't think they were the first.
The examples you give don't implement the claimed invention. Look at the way Google Finance renders a stock chart. There is a large detail chart and a smaller chart below it. The smaller chart has an adjustable, slidable 'window' which the detail chart shows in, well, more detail. The broadest claim basically refers to this two chart sliding window approach. There are narrower dependent claims that include the news flags feature, but they necessarily require the two chart sliding window feature as well.
As others have pointed out, this patent is basically describing the sliding, adjustable window and news flags features of Google Finance, so it's unlikely that this patent would play much of a role in Ms. Stanton's new job. But if the government wanted to use the invention described in the patent for some reason, it has an automatic license to do so. 28 USC 1498(a) gives the federal government (NB: not state governments) a license to use any patented invention. The patent owner can sue for reasonable compensation but cannot enjoin the government from using the invention.
As a side note, 28 USC 1498(b) gives the government a similar right to use copyrighted works. In that case the copyright owner's damages are limited to reasonable compensation plus the minimum statutory damages, so no overinflated damages for government copyright infringement.
Grond (15515), who appears to be a computer scientist and hobbyist paralegal.
I am a computer scientist (BA and MS), but I'm not a 'hobbyist paralegal.' I have my JD and work full time as an academic researcher with the Stanford University Hoover Institution Project on Commercializing Innovation. This is no secret. I've said as much a few times before here on Slashdot, and if you nose around a bit you can even find my CV on the Project website.
He's given a lot of free legal advice here over the years
I don't think he would appreciate that claim, actually. If he's been giving legal advice to essentially anonymous internet posters in a public forum he has almost certainly breached the ethical rules for lawyers. It would probably also expose him to malpractice liability if anyone relied on the advice.
For the record, Blogspot.com is owned by Google, and I wouldn't be surprised to find that the ads are crammed in there by Google to help pay for the service.
As another poster pointed out, those ads are put there at the blog owner's discretion, not Google's.
The insinuation here (and in other replies immediately following) that he simply posts here to drive people to an "ad-laden" site is more than unfair.
I don't think that's the only reason he ever posts. I think it's the only reason to post this particular non-story. His other posts are some mixture of relevant news, one-sided commentary, indirect marketing for his law firm, and, yes, driving pageviews.
I, for one, appreciate his updates on these very important cases
Then you can get them directly from his site via the web or an RSS reader. The occasional posting of major developments on Slashdot is one thing, but the steady stream of legal minutiae is another.
If you disagree with Ray's take on requests for extension, that's certainly your right (and I disagree with you, by the way; I think it's very significant in this case, given the circumstances).
They aren't significant at all. There's nothing unusual about the timing, the amount of time requested, or the reasons given for the extension. Parties file for extensions all the time. Neither you nor Mr. Beckerman have offered an explanation for why they are 'very significant.'
Requests for extension of time are very common, and there's nothing unusual about the reasons given by the RIAA lawyers in the motions or for the length of extension requested. This seems like little more than an attempt to drive more pageviews to Mr. Beckerman's ad-laden site.
So you don't like the closed OS. Fair enough. So why not jailbreak and install whatever you want? Or help port an open OS to the device? Because Apple won't give you tech support? If you're all about free software you should be used to relying on the community for tech support anyway.
It's a better world when free and proprietary software compete. If the FSF doesn't like the iPhone OS, it should make a better one. If the result is what users actually want (through some combination of openness, price, and quality) then great. But if not, then that's life. Proprietary software sometimes produces better products than free software, and people are sometimes willing to give up free access to the source code in order to get those products. Who is the FSF to tell people what software they should be (morally, if not technically) allowed to use? Isn't that exactly what they're complaining Apple does? It's hypocritical.
I have no problem with arguing that free software is morally or technically superior to proprietary software, but it does bother me when groups like the FSF claim that it's morally wrong to use or sell proprietary software. If it's immoral to use proprietary software, then it's immoral to eat at a restaurant that won't give you the exact recipe for everything on the menu. It would likewise be immoral to buy any product whose composition or process of manufacture is a trade secret. It would be immoral to buy any book not published under an open license. If free software proponents aren't going to be consistent with their own moral choices, where do they get off demanding that everyone else conform to their value system?
The article was written in a very superficial way. The author avoids going into detail on how her proposed solution would be implemented and why it would not have negative side effects. I suspect she has not actually thought very deeply about the problem or her solution.
But do patents have to be freely assignable?
Patents are personal property--and thus freely assignable--by statute. 35 U.S.C. 261. Assignability is also guaranteed by Article 28 of the TRIPS Agreement, which is a treaty that the US is party to. So changing the assignability of patents would require amending the law and withdrawing from or amending a very important international treaty.
And even if it were changed, it would mean that hundreds of patent holding companies would suddenly lose their patent rights because of an action by the government. Other patent holders would lose their right to freely assign their patents. That's called a taking, and the ex-patent holders and patent holders whose patents lost value because of the restriction would be able to sue the government for the value of the patents. It would be a massive litigation and cost the tax payer an enormous amount of money.
But anyway, how does she suggest we restrict the assignability of patents? We could require that they only be assigned to an entity that intended to practice the invention. Sounds great, right? No more patent holding companies, therefore no more trolls. There are at least five big problems with that:
1. Not all patents can be freely practiced because of other patents surrounding the technology. Imagine I own a startup company. If I invent a new transistor design I can't be expected to practice it myself: other companies have patents on things like manufacturing processes, bus designs, chip packaging, etc. I would have to license dozens of other patents in order to sell chips with my new transistor design. But that's backwards. Instead, I should license my one patent to companies like Intel and AMD and let them do the manufacturing and sales. But a requirement to practice means I couldn't do that; I'd have to practice it myself.
2. And what about pure research institutions like universities? They can't be expected to also become manufacturers.
3. But suppose we say it's worth making universities sell their patents. Well, now since they have to sell the patent only a single entity will get the rights. It can no longer stay with the university and be licensed to whoever will pay the fee. The end result is less competition in the market place for the finished product.
4. Okay, suppose we say that it's sufficient that the patent owner license the patent to at least one entity that is going to practice it. But then the law is too narrow. Almost no patent trolls actually rely on litigation damages for income; it's too uncertain and the margins are too narrow and often negative. Litigation is just a tool to extract a licensing fee. So the end result is that the trolls can point to a manufacturer who licenses the patent and nothing changes.
5. What about patents on technologies that are ahead of their time? For example, suppose I invented an amazing new transistor design. It will make computers much faster but it requires X-ray lithography in order to work. Well, X-ray lithography is not cost-effective yet, so I can't really practice my invention. Does my patent just evaporate? How does that spur innovation?
So the author has carefully avoided actually explaining how her solution would be implemented and how it would be narrow enough not to have side effects yet broad enough to be effective yet not invite more litigation or government regulation.
Trademark law dealt with a similar problem, a worry about trafficking in intent-to-use trademark applications, and solved it by forbidding the assignment of them "e
Yes. As far as I can tell, your counterargument does not address the ancillary costs involved. Even if a researcher does not concern himself with patents directly, someone does. The potential for IP infringement does push up insurance premiums, and causes contingency planning at some level in the university or company, which still costs money. These costs also have to be passed on, and in particular are likely to increase the licensing costs for the patents and machines that a researcher might wish to use, which in turn reduces the research money available for actual original research.
That argument would carry some weight if such suits were at all common, but in fact patent infringement suits against university researchers are pretty rare. A quick search of US District Court cases on LexisNexis finds 38 unique cases since 1988 that involved 35 U.S.C. (the patent act) and had a defendant with the word 'college' or 'university' in the name. That's about 1.7 cases per year or about.06% of all patent cases filed each year.
I would be very interested in any research backing up the assertion that the cost of research (or an average university's bottom line) is significantly impacted by the possibility of a patent infringement suit brought against researchers. It would be a surprising result.
Your linked paper is a report by a bunch of non-lawyers asking working scientists whether they think their work is adversely affected by IP law, and you consider that useful why?
Because the claim was made that IP (particularly patents) hobbles traditional biotech research. The paper shows directly that scientists are not changing their research behavior because of patents. If research continues unabated and unaltered despite patents, then the claim that patents hobble traditional research is incorrect. Would you care to explain why that is incorrect? If it's because the potential for lawsuits still exists, then I'll explain why that's wrong in a moment.
Would you also quote a paper that claims the copyright threat is overblown, because the vast majority of music downloaders self-report that they aren't being sued?
If the paper's claim was that the threat of copyright to the individual music downloader is overblown, then yes, I would. Most music downloaders will never be sued, especially now that the RIAA has basically stopped filing new suits (there were a few that were already prepared when they announced they were stopping and those got filed afterward but it's pretty much stopped now). According to the EFF, there were 28,000 people threatened with legal action or sued and there are roughly 60 million file sharers in US. That's.05% or 1 in 2,000. You are more likely to die of injury in a year than to get threatened or sued by the RIAA. (odds of dying by injury in a year in the United States: 1 in 1,643, source)
But even so, music downloaders and biotech researchers cannot be compared so simply. For starters, copyright and patents are very different (e.g., no statutory damages for patent infringement). The nature of patent damages makes it such that it's not economically rational for patentees to sue non-commercial researchers in most cases. Thus, patentees are unlikely to start suing researchers, especially since the recent trend has been to weaken patents, not strengthen them (see, e.g., the eBay and KSR cases).
Furthermore, patent infringement by a biotech researcher is pretty obvious. If the researcher publishes that he or she used Chemical X in a study but the patentee never sold any Chemical X to the researcher, you can bet there was infringement. And researchers keep detailed logs of their experiments. So, again, if patentees aren't suing it's not because it wouldn't be easy to prove infringement.
There are also comparatively few biotech researchers. If one researcher gets sued it would have a much larger impact than the downloader suits. So again, if patentees wanted to shape researcher behavior through lawsuits they would've done it by now.
The real problem is that the IP laws exist in the first place: they are a Sword of Damocles upon researchers, whether they look up or not.
First, in all probability, no, they are not. We have decades of history to show that. Second, legally, no, they are not. Post-eBay it's unlikely that a patentee would be able to enjoin an academic or non-commercial researcher and the damages would be minimal in any case. The rational thing for researchers to do is to continue their research unabated, which is exactly what they're doing.
Remember, most of these researchers work for universities, which have money and patent lawyers. If there were any real risk from a patent suit, the university would tell the researchers to do something else.
Slashdot Mirror
Once again Mr. Haselton demonstrates his tremendous ignorance of the law by attempting to analyze it from his own preconceived first principles using his own methods of reasoning rather than from within the appropriate legal framework using legal reasoning.
Judges are not like doctors who look at a mammogram, and draw on experience that the general public does not have, in order to see something that would be hidden from the rest of us.
The general public does not have substantial legal experience or knowledge, so judges do indeed see something that would be hidden from most people, Mr. Haselton included, evidently.
In cases like these, judges simply have multiple plausible interpretations in front of them, and they pick one. As such they're acting more like referees (who make a decision so that the game -- or, in this case, society -- can move on) than true "experts".
Although Mr. Haselton almost certainly does not know it, this is close to a critical legal studies view of jurisprudence. It is a controversial view, to put it mildly, and the majority of judges and attorneys do not subscribe to it.
There is a temptation to think that there is some consistent reasoning behind the different courts' rulings...This, I think, is nonsense, an attempt to put a consistent theory on top of a legal system that does not follow consistent rules from one court ruling to the next.
Those rulings were written by judges in different circuits who were thus bound by different precedents. Furthermore, one was written by a district court judge who is generally constrained to follow the law in his circuit. The other was a decision on appeal written by a circuit judges who were considerably more free to deviate from prior precedent. Mr. Haselton is comparing apples and oranges.
And indeed in the 3rd Circuit case you see 3rd Circuit cases cited, and in the Southern District of Florida case you see different cases cited, including the earlier 3rd Circuit case! There is no inconsistency here: the Southern Florida judge is distinguishing his case from the 3rd Circuit case based on the facts present in the particular case. Judges do this all the time.
Mr. Haselton seems to think that rulings are always simplistic hard and fast rules. Here he seems think that the rule is something like "students can't be punished for something they do online outside the school." In fact, as the case discusses, there is a complex legal and factual inquiry that is dependent on balancing competing factors and making fine distinctions. The case itself makes this clear: "While the Frederick decision offers little aid in solving the specific issue of student speech published on the internet, it does, however, make clear that the operative test is not a simple one of geography. Where the speech is published is not the only question that needs to be asked." (emphasis added)
But even if it's still a roll of the dice how a court would rule in a particular student free-speech case, what matters from the point of view of a principal in a future case, are the potential payoffs.
Here Mr. Haselton is stumbling onto law & economics. But his argument rests on several unstated assumptions: first, he's assuming that the principal is a rational actor, which is a pretty questionable assumption. Second, he's assuming that principal's have sufficient information on which to base a rational choice; in particular he's assuming that the principals (or their lawyers) know about this and related cases and know all of the ground facts of the case that a court might use to come to a decision. This is also a questionable assumption. He offers nothing to support either of these assumptions.
How did the legal and societal climate of attitudes toward people under 18, lead to a principal thinking that he could punish a 17-year-old for comment
Jail-breaking facilitates piracy
So how is banning jailbreakers from the app store going to help with that? It seems like it would just force the jailbreakers to use pirated apps exclusively.
And assuming Apple limits the bans to the authors of jailbreaking tools rather than end users, it won't do much to deter the development of such tools. You don't need access to the app store to write the tools, and I'm going to go out on a limb and guess that the authors of the tools have no problem pirating apps themselves.
I think jailbreaking isn't a great idea, and Apple is within its rights to deter it through security improvements and the like, but this just seems counterproductive.
"However, his company would not manufacture them."
That doesn't say much. Apple doesn't actually manufacture iPods and Macs, for example. And a university that develops a new drug won't make it itself; it will spin the technology off into a for-proft company.
The details of the business organization are largely irrelevant. The main thing is that they've built a functioning product that they intend to bring to market, perhaps through a subsidiary, perhaps a manufacturing partner, or perhaps by licensing the technology to all comers. That last option is in many ways the best for consumers because it creates competition in the marketplace for the best implementation of the underlying technology.
This came out of Intellectual Ventures, which Slashdot often derides as a patent troll that brainstorms ideas, patents them, then lives off of the licensing revenue without actually contributing real products to the world or even prototyping their vaguely defined ideas.
This shows that IV is quite capable of producing actual, useful products. Its business model is not limited to patent licensing revenue, which makes it more like, say, IBM, than a typical patent holding company.
Maybe, just maybe, IV is not the evil parasite that many on Slashdot made it out to be. In fact, it seems to be in the business of shooting evil parasites with lasers, which is pretty cool.
I've got a better idea. Since the government made up this "patent value" out of thin air in the first place, how about let the government decide how much it's worth.
That would probably require a constitutional amendment. The Fifth Amendment states "nor shall private property be taken for public use, without just compensation." Theoretically the Supreme Court could reinterpret 'just compensation' to mean 'whatever the government feels like,' but that would be an enormous break with precedent and would open the door to the government taking other kinds of property without paying for it or only paying a pittance.
Then I realized this is just clever Venture Capitalism. You want to throw $10M into a startup, to help it with a portion of startup costs for bringing the project to market. You don't want to throw a lot of money at R&D in the initial phases when you have no idea if the person/team/company in question will be able to deliver something legitimate or not.
Actually venture capitalism is usually most valuable at the R&D stage. The X-Prize is a VC who only wants to come in after the idea has already been proven. At that point you normally have no shortage of (non-VC) investors. Where you still need VC is when it's uncertain whether there's actually a market for the product or not.
That's why the space flight X-Prize was useful. Even once you had the proven technology there was no guarantee you were going to be able to recoup your costs because the market was so uncertain. The X-Prize helped overcome that by trying to ensure that the winner would at least break even. (Of course, the winner actually spent well over $10 million but you get the idea).
In this case, the market is guaranteed. Indeed, there are markets for the limited BCI that we have already. The first truly usable, safe BCI will make billions.
Sure, throwing $10M into a startup doing commercial space flight or Brain Computer Interfaces, etc, is peanuts compared to the eventual payoff from the market, $10M is still $10M and should at least provide a little help to anyone struggling to bring a great, proven idea to market.
The issue isn't getting the money to bring it to market. Proven BCI technology will have no shortage of investors willing to pay for patenting, FDA approval, manufacturing, etc. The issue with BCI is developing the technology in the first place, which requires real VC willing to get in at the R&D stage, existing corporate R&D, or non-commercial funding like NIH grants and university research.
Manned commercial space flight was different. Not only was the technology not there, but the market wasn't necessarily there either. So it needed both early funding (which the serious competitors had) and a guarantee that the investors wouldn't lose their shirts if the market failed to materialize. That's where the X-Prize stepped in.
if you think of it as an investment and an effective PR stunt, then it's still useful, I suppose.
Commercial space flight benefited from the PR, to be sure. But in the case of BCI, there's so much money to be made that the companies that would commercialize the technology will be paying plenty of attention, prize or no prize.
I don't mean to rain on the X-Prize's parade. BCI is a big deal, and I suppose the prize can't hurt. But I think there are areas where they could get more bang for their buck.
A $10 million prize is absolute peanuts compared to the obvious commercial value of a usable, non-invasive (or at least low-risk) BCI. Just for starters, an effective BCI would largely solve some of the major side effects of a stroke. That right there is a massive, multi-billion dollar market. Another $10 million is not going to substantially stimulate research and development in this area. It's like offering $10 million for a cure for cancer.
Furthermore, this is an invention with applications in dozens of areas. The company or individual that invents it would be swamped with licensing offers.
Compare this to the original X-Prize. There a prize was useful because there was no substantial pre-existing market for the technology being developed and there were relatively few areas of application for the technology. Under those circumstances a prize model makes sense.
But for situations like this one we already have a prize; it's called a patent. Even better, the value of the prize is determined by the market, so there's less of a risk of under or overvaluing the invention.
Personally I think that we should consider whether the government should be able to exercise eminent domain for patents in cases like this.
Exercising eminent domain in a patent case is usually a bad idea. The compensation the government has to pay for the taking is the value of the patents over their entire term, which in this case is likely to be billions of dollars (for example: Thomson, which is just one member of the MPEG LA patent pool, receives a few hundred million dollars a year in licensing revenue).
The end result is that the cost is spread over the entire tax base instead of being concentrated among the actual users of the technology. So someone who owns a single TV and doesn't watch much web video will end up paying far more than their share while someone who watches tons of web video and runs a video streaming service pays far too little. Ultimately it acts as a transfer of wealth from those who do not produce or consume H.264 video to those who do, which is kind of an odd basis on which to redistribute wealth.
Back then DMCA was not in existence and ATCA was something the RIAA and MPAA would dream about and forget the next morning. Once ACTA comes to life, They will find a way to kill VLC and anyone who dares to slowdown their cash flow.
The DMCA has nothing to do with patents. It's the Digital Millennium Copyright Act. Furthermore, decoding H.264 has nothing to do with circumventing DRM, so the DMCA wouldn't apply anyway.
As for ACTA, well, because of the secret nature of the negotations we don't know what exactly will come of it, but from what we do know it doesn't seem to have much to do with patents either. For example, a lot of ACTA has to do with international cooperation on the prosecution of criminal intellectual property rights infringement. But patent infringement is not a crime anywhere in the world that I know of (certainly not the US or Europe).
The parts of the draft dealing with civil liability do not significantly alter the existing law of patents. Furthermore, comments on the leaked draft from Australia, Singapore, and Canada suggest that different areas of IP should be treated differently, with Singapore and Canada explicitly calling for limiting the scope of ACTA to copyrights and trademarks. And since most of the text explicitly refers to 'pirated or counterfeit' goods, it's unlikely that patents will be substantially affected by the final version of the treaty.
Right, that's why there are no functional video players that support H.264. Except for Windows Media Player, which comes free with Windows. And Quicktime/iTunes, which comes free with OS X and are free for Windows. And VLC, which is free and usually comes free with Linux distributions. And MPlayer. And PowerDVD. And Totem. In fact there are at least 20 such players, some free, some proprietary. Every modern OS comes with a free, functional video player and there are several options if you don't like the one that comes in the box.
Software patents on video codecs didn't start with H.264. MPEG-1 was patented, so was MPEG-2. Royalties were sought in both cases. That didn't stop free and open source encoders and decoders from being produced, and nobody got sued or shut down.
The existence of a patent does not mean that the patent will be enforced in all cases. Patent owners, like other property owners, ignore low-value infringements all the time. It's generally not economically rational to sue free and open source software projects for patent infringement. There are several reasons:
1. Patents are territorial but FOSS development is international. If you get an injunction in one country, development and hosting will continue in others. Even if you had a patent in every single country in the world, enforcement would be incredibly expensive and not at all worth it.
2. You generally can't get money damages and an injunction--assuming you can get one--would be useless. The baseline for patent damages in the US is a reasonable royalty. But a FOSS project would never pay a royalty. So the reasonable royalty is $0. Lost profits are arguable, but even if you can get a judgment, good luck collecting it from free software developers. An injunction may be obtainable, but the code is out there; you can't delete something from the internet, and development will be continued by others either in this country or another one.
3. The cost is prohibitive. Assuming the defendants put up even the slightest fight it would cost the patentee tens of thousands of dollars to sue. And if the EFF/SFLC/RedHat/etc get involved it would probably cost the patentee's millions and risk invalidating the patents. Even if the patentee wins it's doubtful it could collect enough in damages or increased licensing revenue to offset the cost of litigation.
4. The PR is terrible. Suing volunteer developers is a great way to get a terrible reputation among the very people who decide what formats to use on websites. Start suing open source developers and expect to see IT workers all over the world recommend moving to unencumbered or at least litigation-free formats.
All of these reasons and more are why, despite tens of thousands of software patents having issued over the past couple of decades, the Open Source Software Patent Apocalypse has failed to materialize. It's just not a significant risk. The SWPat wiki has only incredibly weak sauce examples, most of which are merely potential dangers, not actual lawsuits or even threats of suits.
Yeah, it's definitely trademarked, but the issue isn't really food; it's the game itself and the viewing thereof. Registered trademark #0882283 from 1969 is for "Entertainment services in the nature of football exhibitions." Arguably a game watching party is a football exhibition, particularly where there's a cover fee of some kind or where the party is purely a commercial venture.
If that's not close enough there's registered trademark #3343714 from 2007, which is for "Television broadcasting services; television transmission services; distribution of television programming to cable and satellite television systems; distribution of television programs for others..." etc, etc. Arguably a Super Bowl Watching Party would fall under "distribution of television programs for others."
Just don't...call it a 'Super Bowl' party, since the term itself is copyright.
The term is not copyrighted. The term is trademarked.
The trademark status has advantages and disadvantages. Since it's been registered and in use for at least 5 years (since 1969 in fact), the trademark is much harder to invalidate, per 15 USC 1065. Unlike copyrights, trademarks really do last forever, given proper maintenance (yes, I realize that copyrights practically last forever too, but there are trademarks that are centuries old).
Some of the disadvantages of a trademark are that the remedies are weaker (no statutory damages) and the trademark holder must police the mark. You can't license it to just anybody. You have to maintain some control over the licensed good or service, typically in the form of quality standards. You also have to go after potential infringers. Failure to do so can lead to losing the mark.
It's that last requirement that is driving the NFL's actions here (well, that and the money to be made). Whether the law in fact requires them to be as strict about it as they are is another question, one that very few people on Slashdot are really competent to answer. Whether the law should require them to be so strict, however, is a different question and one that most of us probably agree on the answer to.
As a side note, footage of individual games is copyrighted. The NFL argues that footage of the game is licensed only for private viewing and not for commercial viewing, which is how they go after sports bars and the like. I would argue that if you put your game on the public airwaves, it should be fair game for live viewing. If they want to enter into a more restrictive license with the viewer they should put the game on pay per view, a premium channel, or a cable channel at the very least.
Non-practicing entities exist in other legal and business contexts. Consider a car rental company, for example. It might own thousands of cars, yet it does not build cars, sell cars, or use the cars itself. What's more, it charges an obscene fee to rent a car compared to buying one (~$20/day for a compact is $7300/year!).
Sounds a lot like a patent troll, right? It doesn't use the technology, it won't sell the technology outright, and it quite possibly didn't even invent it in the first place.
But what both kinds of NPE provide is convenience and certainty. People pay car rental companies a comparative fortune because it's cheaper than owning a car in every city you might want to fly to, and the car rental company provides certainty that the car will be available, in reasonably good condition, properly titled, etc.
By the same token, a patent holding company provides convenience and certainty. Patents and patent applications are publicly available, so you can avoid wasting time and money on duplicate research and development by simply seeking a license from a company that has already done the work. And of course a license gives you legal certainty. Knowing that your product is licensed reduces the risk of an infringement lawsuit, which makes things like developing venture capital and contracting with suppliers and distributors easier.
Now, of course, there are problems. Too may patents are too vague to be of much practical use to a practicing entity because they don't go into adequate detail on how to actually make and use the invention. In response the courts are moving towards tightening the written description and enablement requirements, which I support. Another problem is that too many patents are actually invalid, and Microsoft is currently asking the Supreme Court to make patents easier to invalidate by eliminating the strong presumption of validity that patents currently enjoy, which is another reform I support. (That's right, Microsoft is trying to make it easier to invalidate patents).
The answer to the problem of non-practicing entities is not to ban them outright, nor to engage in overly narrow reforms that will only add complexity to the law. The solution is simple, broad reform that will increase the societal value of all kinds of patents while at the same time reducing the incentive to file for unsupported patents.
how come patent trolls are awarded patents in the first place? Would it be possible to make an applicant show proof that they are in the planning stages or are currently using what they are trying to patent?
That's called a 'working requirement' or a requirement to practice the invention. A few countries have such a requirement (Turkey, for example), but the requirement is usually riddled with exceptions that make it essentially toothless. There are several reasons why a strong working requirement is a bad idea, as I explained in a comment on a recent Slashdot story that suggested forbidding patent ownership by or assignment to non-practicing entities.
In the US patents are personal property--and thus freely assignable--by statute. 35 U.S.C. 261. Assignability is also guaranteed by Article 28 of the TRIPS Agreement, which is a treaty that the US is party to. So changing the assignability of patents would require amending the law and withdrawing from or amending a very important international treaty.
And even if the law were changed, it would mean that hundreds of patent holding companies would suddenly lose their patent rights because of an action by the government. That's called a taking, and the ex-patent holders would be able to sue the government for the value of the patents. It would be a massive litigation and cost the tax payer an enormous amount of money.
But anyway, how would we implement such a requirement? We could require that patents only be assigned to an entity that intended to practice the invention. Sounds great, right? No more patent holding companies, therefore no more trolls. There are at least five big problems with that:
1. Not all patents can be freely practiced because of other patents surrounding the technology. Imagine I own a startup company. If I invent a new transistor design I can't be expected to practice it myself: other companies have patents on things like manufacturing processes, bus designs, chip packaging, etc. I would have to license dozens of other patents in order to sell chips with my new transistor design. But that's backwards. Instead, I should license my one patent to companies like Intel and AMD and let them do the manufacturing and sales. But a requirement to practice means I couldn't do that; I'd have to practice it myself.
2. And what about pure research institutions like universities? They can't be expected to also become manufacturers.
3. But suppose we say it's worth making universities sell their patents. So now the patent will be owned by a single practicing entity. The patent can no longer stay with the university and be licensed to whoever will pay the fee. The end result is less competition in the market place for the finished product.
4. Okay, suppose we say that it's sufficient that the patent owner license the patent to at least one entity that is going to practice it. But then the law is too narrow. Almost no patent trolls actually rely on litigation damages for income; it's too uncertain and the margins are too narrow--and often negative. Litigation is just a tool to extract a licensing fee. So the end result is that the trolls can point to a manufacturer who licenses the patent and nothing changes.
5. What about patents on technologies that are ahead of their time? For example, suppose I invented an amazing new transistor design. It will make computers much faster but it requires X-ray lithography in order to work. Well, X-ray lithography is not cost-effective yet, so I can't really practice my invention. Does my patent just evaporate? How does that spur innovation?
As you can see, there are a lot of problems with such a proposal.
Don't abbreviate it to NPE. Spell it out, each time - non-practicing entity. By just saying three letters, it weakens the point that these companies do nothing. They exist solely to sue.
Right, because universities, individual inventors, and non-profit research organizations do nothing and exist solely to sue. Oh, wait, those are actually common examples of non-practicing entities. For example, in the article the chart of damage awards exceeding $100 million lists 4 NPE plaintiffs, one of whom is an individual inventor (a doctor who invented a kind of drug-eluting stent) and another is Cornell University.
It does exactly what is described in the patent...Of course, the product is no longer sold, so that properly means you can reinvent the wheel where software is concerned
No, you can't, that's the whole point of prior art. Patents do not allow someone to take inventions out of the public domain. It (generally) doesn't matter if the prior art is still on sale or not.
More specifically, if there was software that did exactly what is claimed in the patent (i.e. is anticipatory prior art), and that software was in public use or on sale in the United States more than a year before this patent was applied for, then Google's patent is invalid as anticipated under 35 USC 102(b). If it didn't quite do what's claimed in the patent, then it is still probably strong prior art for invalidity due to obviousness.
Unfortunately since the patent has already been granted the Patent Office will only consider prior art in the form of patents and printed publications. Invalidity on the basis of other kinds of evidence, such as a copy of the software, generally only comes up in court cases. Was there a manual for the product that described this feature? Or perhaps an advertisement or product review that described it? Submitting prior art to the Patent Office is free, but whether they act on it is up to them. You can request reexamination, but that's not free.
If you're interested in submitting prior art to the Patent Office, you should contact a patent agent or patent attorney about preparing the necessary forms and documents.
Google isn't the only site that displays news on stock charts this way, and I don't think they were the first.
The examples you give don't implement the claimed invention. Look at the way Google Finance renders a stock chart. There is a large detail chart and a smaller chart below it. The smaller chart has an adjustable, slidable 'window' which the detail chart shows in, well, more detail. The broadest claim basically refers to this two chart sliding window approach. There are narrower dependent claims that include the news flags feature, but they necessarily require the two chart sliding window feature as well.
As others have pointed out, this patent is basically describing the sliding, adjustable window and news flags features of Google Finance, so it's unlikely that this patent would play much of a role in Ms. Stanton's new job. But if the government wanted to use the invention described in the patent for some reason, it has an automatic license to do so. 28 USC 1498(a) gives the federal government (NB: not state governments) a license to use any patented invention. The patent owner can sue for reasonable compensation but cannot enjoin the government from using the invention.
As a side note, 28 USC 1498(b) gives the government a similar right to use copyrighted works. In that case the copyright owner's damages are limited to reasonable compensation plus the minimum statutory damages, so no overinflated damages for government copyright infringement.
Grond (15515), who appears to be a computer scientist and hobbyist paralegal.
I am a computer scientist (BA and MS), but I'm not a 'hobbyist paralegal.' I have my JD and work full time as an academic researcher with the Stanford University Hoover Institution Project on Commercializing Innovation. This is no secret. I've said as much a few times before here on Slashdot, and if you nose around a bit you can even find my CV on the Project website.
He's given a lot of free legal advice here over the years
I don't think he would appreciate that claim, actually. If he's been giving legal advice to essentially anonymous internet posters in a public forum he has almost certainly breached the ethical rules for lawyers. It would probably also expose him to malpractice liability if anyone relied on the advice.
For the record, Blogspot.com is owned by Google, and I wouldn't be surprised to find that the ads are crammed in there by Google to help pay for the service.
As another poster pointed out, those ads are put there at the blog owner's discretion, not Google's.
The insinuation here (and in other replies immediately following) that he simply posts here to drive people to an "ad-laden" site is more than unfair.
I don't think that's the only reason he ever posts. I think it's the only reason to post this particular non-story. His other posts are some mixture of relevant news, one-sided commentary, indirect marketing for his law firm, and, yes, driving pageviews.
I, for one, appreciate his updates on these very important cases
Then you can get them directly from his site via the web or an RSS reader. The occasional posting of major developments on Slashdot is one thing, but the steady stream of legal minutiae is another.
If you disagree with Ray's take on requests for extension, that's certainly your right (and I disagree with you, by the way; I think it's very significant in this case, given the circumstances).
They aren't significant at all. There's nothing unusual about the timing, the amount of time requested, or the reasons given for the extension. Parties file for extensions all the time. Neither you nor Mr. Beckerman have offered an explanation for why they are 'very significant.'
Requests for extension of time are very common, and there's nothing unusual about the reasons given by the RIAA lawyers in the motions or for the length of extension requested. This seems like little more than an attempt to drive more pageviews to Mr. Beckerman's ad-laden site.
So you don't like the closed OS. Fair enough. So why not jailbreak and install whatever you want? Or help port an open OS to the device? Because Apple won't give you tech support? If you're all about free software you should be used to relying on the community for tech support anyway.
It's a better world when free and proprietary software compete. If the FSF doesn't like the iPhone OS, it should make a better one. If the result is what users actually want (through some combination of openness, price, and quality) then great. But if not, then that's life. Proprietary software sometimes produces better products than free software, and people are sometimes willing to give up free access to the source code in order to get those products. Who is the FSF to tell people what software they should be (morally, if not technically) allowed to use? Isn't that exactly what they're complaining Apple does? It's hypocritical.
I have no problem with arguing that free software is morally or technically superior to proprietary software, but it does bother me when groups like the FSF claim that it's morally wrong to use or sell proprietary software. If it's immoral to use proprietary software, then it's immoral to eat at a restaurant that won't give you the exact recipe for everything on the menu. It would likewise be immoral to buy any product whose composition or process of manufacture is a trade secret. It would be immoral to buy any book not published under an open license. If free software proponents aren't going to be consistent with their own moral choices, where do they get off demanding that everyone else conform to their value system?
The article was written in a very superficial way. The author avoids going into detail on how her proposed solution would be implemented and why it would not have negative side effects. I suspect she has not actually thought very deeply about the problem or her solution.
But do patents have to be freely assignable?
Patents are personal property--and thus freely assignable--by statute. 35 U.S.C. 261. Assignability is also guaranteed by Article 28 of the TRIPS Agreement, which is a treaty that the US is party to. So changing the assignability of patents would require amending the law and withdrawing from or amending a very important international treaty.
And even if it were changed, it would mean that hundreds of patent holding companies would suddenly lose their patent rights because of an action by the government. Other patent holders would lose their right to freely assign their patents. That's called a taking, and the ex-patent holders and patent holders whose patents lost value because of the restriction would be able to sue the government for the value of the patents. It would be a massive litigation and cost the tax payer an enormous amount of money.
But anyway, how does she suggest we restrict the assignability of patents? We could require that they only be assigned to an entity that intended to practice the invention. Sounds great, right? No more patent holding companies, therefore no more trolls. There are at least five big problems with that:
1. Not all patents can be freely practiced because of other patents surrounding the technology. Imagine I own a startup company. If I invent a new transistor design I can't be expected to practice it myself: other companies have patents on things like manufacturing processes, bus designs, chip packaging, etc. I would have to license dozens of other patents in order to sell chips with my new transistor design. But that's backwards. Instead, I should license my one patent to companies like Intel and AMD and let them do the manufacturing and sales. But a requirement to practice means I couldn't do that; I'd have to practice it myself.
2. And what about pure research institutions like universities? They can't be expected to also become manufacturers.
3. But suppose we say it's worth making universities sell their patents. Well, now since they have to sell the patent only a single entity will get the rights. It can no longer stay with the university and be licensed to whoever will pay the fee. The end result is less competition in the market place for the finished product.
4. Okay, suppose we say that it's sufficient that the patent owner license the patent to at least one entity that is going to practice it. But then the law is too narrow. Almost no patent trolls actually rely on litigation damages for income; it's too uncertain and the margins are too narrow and often negative. Litigation is just a tool to extract a licensing fee. So the end result is that the trolls can point to a manufacturer who licenses the patent and nothing changes.
5. What about patents on technologies that are ahead of their time? For example, suppose I invented an amazing new transistor design. It will make computers much faster but it requires X-ray lithography in order to work. Well, X-ray lithography is not cost-effective yet, so I can't really practice my invention. Does my patent just evaporate? How does that spur innovation?
So the author has carefully avoided actually explaining how her solution would be implemented and how it would be narrow enough not to have side effects yet broad enough to be effective yet not invite more litigation or government regulation.
Trademark law dealt with a similar problem, a worry about trafficking in intent-to-use trademark applications, and solved it by forbidding the assignment of them "e
Yes. As far as I can tell, your counterargument does not address the ancillary costs involved. Even if a researcher does not concern himself with patents directly, someone does. The potential for IP infringement does push up insurance premiums, and causes contingency planning at some level in the university or company, which still costs money. These costs also have to be passed on, and in particular are likely to increase the licensing costs for the patents and machines that a researcher might wish to use, which in turn reduces the research money available for actual original research.
That argument would carry some weight if such suits were at all common, but in fact patent infringement suits against university researchers are pretty rare. A quick search of US District Court cases on LexisNexis finds 38 unique cases since 1988 that involved 35 U.S.C. (the patent act) and had a defendant with the word 'college' or 'university' in the name. That's about 1.7 cases per year or about .06% of all patent cases filed each year.
I would be very interested in any research backing up the assertion that the cost of research (or an average university's bottom line) is significantly impacted by the possibility of a patent infringement suit brought against researchers. It would be a surprising result.
Your linked paper is a report by a bunch of non-lawyers asking working scientists whether they think their work is adversely affected by IP law, and you consider that useful why?
Because the claim was made that IP (particularly patents) hobbles traditional biotech research. The paper shows directly that scientists are not changing their research behavior because of patents. If research continues unabated and unaltered despite patents, then the claim that patents hobble traditional research is incorrect. Would you care to explain why that is incorrect? If it's because the potential for lawsuits still exists, then I'll explain why that's wrong in a moment.
Would you also quote a paper that claims the copyright threat is overblown, because the vast majority of music downloaders self-report that they aren't being sued?
If the paper's claim was that the threat of copyright to the individual music downloader is overblown, then yes, I would. Most music downloaders will never be sued, especially now that the RIAA has basically stopped filing new suits (there were a few that were already prepared when they announced they were stopping and those got filed afterward but it's pretty much stopped now). According to the EFF, there were 28,000 people threatened with legal action or sued and there are roughly 60 million file sharers in US. That's .05% or 1 in 2,000. You are more likely to die of injury in a year than to get threatened or sued by the RIAA. (odds of dying by injury in a year in the United States: 1 in 1,643, source)
But even so, music downloaders and biotech researchers cannot be compared so simply. For starters, copyright and patents are very different (e.g., no statutory damages for patent infringement). The nature of patent damages makes it such that it's not economically rational for patentees to sue non-commercial researchers in most cases. Thus, patentees are unlikely to start suing researchers, especially since the recent trend has been to weaken patents, not strengthen them (see, e.g., the eBay and KSR cases).
Furthermore, patent infringement by a biotech researcher is pretty obvious. If the researcher publishes that he or she used Chemical X in a study but the patentee never sold any Chemical X to the researcher, you can bet there was infringement. And researchers keep detailed logs of their experiments. So, again, if patentees aren't suing it's not because it wouldn't be easy to prove infringement.
There are also comparatively few biotech researchers. If one researcher gets sued it would have a much larger impact than the downloader suits. So again, if patentees wanted to shape researcher behavior through lawsuits they would've done it by now.
The real problem is that the IP laws exist in the first place: they are a Sword of Damocles upon researchers, whether they look up or not.
First, in all probability, no, they are not. We have decades of history to show that. Second, legally, no, they are not. Post-eBay it's unlikely that a patentee would be able to enjoin an academic or non-commercial researcher and the damages would be minimal in any case. The rational thing for researchers to do is to continue their research unabated, which is exactly what they're doing.
Remember, most of these researchers work for universities, which have money and patent lawyers. If there were any real risk from a patent suit, the university would tell the researchers to do something else.