I doubt that the harm happens at the level of actualised research, but rather research choices are effected by intellectual property. Thus, it slips by this study relatively unnoticed.
Actually the study authors looked at that, too. "[F]ew academic bench scientists currently pay much attention to others' patents. Only 5% (18 out of 379) regularly check for patents on knowledge inputs related to their research...Five percent had been made aware of intellectual property (IP) relevant to their research through a notification letter sent either to them or their institution." If they don't even know if something is patented or not, it can't affect whether they decide to research it.
Furthermore, "[E]ven for the few who were aware of others' patents, those third-party patents did not have a large impact on their research. Of the 32 respondents who were aware of relevant IP, four reported changing their research approach and five delayed completion of an experiment by more than 1 month. No one reported abandoning a line of research."
In fact, I'd be all for a general extension to patent law to explicitly allow violation of any patent for the purpose of non-commercial research where any devices made in violation of a patent are not sold or distributed.
What's the need? If the research is non-commercial and no infringing products are sold or distributed, why would the patentee bother suing? It's non-commercial, so the defendant probably has little money and it would likely be a PR disaster. They didn't sell or distribute any infringing products, so damages are likely to be minimal. These are the main reasons why non-profit research is already basically in the clear.
So why not go ahead and codify the de facto research exemption into the law as you suggest? The reason is that it would be exploited like crazy (see the FDA safe harbor for an example). Companies would set up non-profit research arms to do their research, license-free, and then bring the results to market. It's very difficult (maybe impossible, given powerful corporate interests) to design a law that's narrow enough not to be exploited, broad enough to achieve its goal, yet also doesn't invite litigation or burdensome regulatory oversight.
The article makes some vague statements that IP limits traditional biotech research. In fact, empirical studies do not back up such claims. John Walsh, Charlene Cho, Wesley Cohen, View from the Bench: Patents and Material Transfers, 309 Science 2002-2003 (2005). Some highlights:
"Thus, of 381 academic scientists, even including the 10% who claimed to be doing drug development or related downstream work, none were stopped by the existence of third-party patents, and even modifications or delays were rare, each affecting around 1% of our sample."
"In addition, 22 of the 23 respondents to our question about costs reported that there was no fee for the patented technology, and the 23rd respondent said the fee was in the range of $1 to $100."
19% of the respondents reported that other scientists had not complied with material transfer requests (i.e. requests for data or samples), but analysis found that "The patent status of the requested material had no significant effect on noncompliance."
An additional, more focused case study of a highly-commercialized area of research with a lot of patent activity found that "only 3% of respondents reported stopping a project in the past 2 years because of a patent."
But just search law journals and economic journals for terms like "American rule," "English rule," "loser pays," and "attorney fee shifting." You'll get thousands of hits. This is an extremely thoroughly studied problem whose roots go back centuries. It's also one with no clear solution, either theoretically or in practice.
The EFF actually made a claim for attorney's fees earlier in the case, and the claim was denied. The court found that a violation of 512(f) requires either actual knowledge that the material is not infringing or that the fair use be self-evident. Lenz v. Universal Music Corp., Copy. L. Rep. (CCH) P29,540, 8 (N.D. Cal. 2008). The court then found that the plaintiff had neither alleged facts from which actual knowledge could be inferred nor facts showing that the fair use was self-evident. Id. at 9. The plaintiff was given leave to amend the claim to correct these issues, which she did.
The amended version of the complaint alleged that Universal acted in bad faith and deliberate ignorance of fair use. Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150, 1156 (N.D. Cal. 2008). It further alleges that Universal is acting solely to satisfy Prince's personal agenda. Id. Those allegations were held sufficient to deny a motion to dismiss the claim. Id at 1157. The court ruled that copyright holders must undertake a good faith consideration of fair use but they are not required to make a full investigation. Id at 1155-56. The court noted that cases of bad faith are likely to be rare. Id at 1155.
So the outcome here hinges on whether Universal considered fair use and decided in good faith that it did not apply. Normally it would be difficult to prove that Universal ignored fair use as a possible defense or considered it only in bad faith (e.g., had its lawyers tell it what it wanted to hear). The evidence would normally be protected by the attorney-client privilege or the attorney work-product privilege. In this case, however, the EFF won significant parts of a motion to discover such evidence. Lenz v. Universal Music Corp., 2009 U.S. Dist. LEXIS 105180 (N.D. Cal. 2009). Unfortunately, I can't find a link to the EFF's argument for this motion, so it's hard to say how strong their case actually is (e.g., whether they uncovered a smoking gun memo).
As for Mr. Haselton's extensive discussion of the best way to apportion the cost of litigation between parties I will say this: It is remarkable only for its complete lack of citation to or recognition of the numerous legal and economic studies that have been made of the subject over the past couple of centuries. It is the law and economics version of the phenomenon described in this XKCD comic and its accompanying alt-text.
Google has at least 173 issued patents as well as over two hundred pending applications. That doesn't include the various patents (such as the PageRank patent) that it is the exclusive licensee for but does not actually own (Stanford owns it). Google's software patent strategy dates back to at least 1997, when it filed this application, which actually predates the PageRank application.
about half of the 4,400 toll records collected in emergency situations or with after-the-fact approvals were done in technical violation of the law.
'Technical violation of the law' is also known as 'crime.' The degree to which the law has been violated may be relevant for sentencing, but it's irrelevant in determining whether or not a crime has, in fact, taken place.
In true emergencies, Caproni said, agents always had the legal right to get phone records, and lawyers have now concluded there was no need for the after-the-fact approval process.
So how many of these were actually true emergencies? And having the legal right to get something doesn't excuse getting it illegally. If the police have probable cause they can get a warrant to search my house. If they decided to skip getting a warrant and search it anyway, the results of that search are inadmissible even though the police could have done it legally. It should be no different in this case. In fact, in this case there's a statute specifically defining the crime, and it does not excuse a criminal act if it could have been done legally but wasn't.
Bureau officials said agents were working quickly under the stress of trying to thwart the next terrorist attack and were not violating the law deliberately.
That's not a legally recognized excuse. The intent that matters is the intent to intercept the communication, which was plainly present (this is not a case of accidentally tapping the wrong line or anything like that). Whether they knew what they were doing was illegal or whether they thought what they were doing was justified is irrelevant in this case, per the statute.
Caproni said the bureau will use the inspector general's findings to determine whether discipline is warranted.
Discipline? I hope that's just for starters. The ECPA provides for a jail sentence of up to 5 years per violation, and I would like to see prosecutors pursue significant jail sentences for the "senior FBI managers up to the assistant director level" that approved the procedures for emergency requests, particularly for those who did so "for two years after bureau lawyers raised concerns and an FBI official began pressing for changes." They betrayed the public trust and broke the law even after their illegal behavior was pointed out to them. It's utterly inexcusable.
The federal government should also be made to pay the appropriate statutory civil fine to the parties whose phone records were illegally gathered, which is the greater of actual damages, $100 per day of violation, or $10,000. If $10,000 in statutory damages seems excessive, the government should take a look at the Copyright Act some time. And if 5 years in jail seems excessive, it should take a look at the penalties for growing certain plants in your back yard.
So it's okay for them to pollute all of civilization as long as it's to a small enough degree?
Yes, as in most cases this is a matter of degree. The punishment should fit the crime and some things are too small to be worth the transaction cost of quibbling over. In particular, the Nuclear Regulatory Commission has decided that this level of tritium release is below acceptable levels. Would it be better if nuclear plants never released any tritium? Sure.
Over time this could add up and I would suspect that even reaching 1% contamination on our water from years of pollution from these many sources would reduce public water to unusable.
Tritium has a half-life of 12 years. At these ultra low leakage rates it will decay fast enough that it would take an eternity to build up to, as you suggest, 1% contamination. That said, leaks have a way of getting worse if they aren't fixed, so it's appropriate for the plant to find and fix it.
However, this likely will never happen since in essence the contaminated water is being consumed and filtered by every(thing/one) on a daily basis.
Radioactive contaminants aren't really filtered or consumed. They'll stick around until they decay, which is one reason why the laws and regulations for nuclear power in the US are as strict as they are.
I still can't help but wonder what affects these pollutants could ultimately have on all life.
That's a very good attitude to have and I applaud it, but a reduction in the acceptable levels of tritium release should be based on evidence not merely an hypothesis or a hunch.
If it's safe, why should the leak be found and fixed?
I didn't say it was safe, just that it did not demonstrate that the plants are unsafe. If one car randomly explodes, does that prove that all cars are inherently unsafe? Neither did I say the leak was safe forever: obviously if the plant is leaking then something is going wrong. It may be safe now but problems left unattended tend to get worse over time.
Let's be honest here. To the advocates of nuclear power, Chernobyl isn't a demonstration of the danger of nuclear power, so why should any lesser event be considered such?
Well, no Chernobyl-style plants are operated in the US, so why should it demonstrate anything about powerplants in the US?
In any case, the comparison you give is, at best, misleading, and at worst, deliberately so. For the comparison to be meaningful, we'd need to know the mix of uranium isotopes in order to compare their decay modes, energies, and products.
Well, the mix of uranium isotopes in sea water is known, so why don't you pull it up and prove that the comparison wasn't meaningful instead of just assuming that it isn't. I'd say it actually goes in my favor: uranium is toxic whereas tritium isn't, uranium decays into toxic lead (via various radioactive and toxic intermediaries), whereas tritium decays into helium, which isn't toxic or radioactive, and uranium has a decay energy orders of magnitude greater than tritium. Tritium also has a short biological half-life and is readily removed from the body. Uranium, on the other hand, though not readily absorbed by the body tends to bioaccumulate and can stay in the body for years.
Either you haven't the foggiest notion what you're talking about...or you're an energy industry shill
That's a false dichotomy. I both have some idea what I'm talking about and have no connection to the energy industry.
The linked article says that the tritium levels are only half what must be reported to the Nuclear Regulatory Commission. And let's think about what 17,000 parts per liter is. A liter of water contains 3.34192092 * 1025 molecules. So those 17,000 atoms mean that, assuming one tritum atom per molecule, 0.00000000000000000005% of the water is contaminated with tritium. At 3.3ppb the concentration of uranium in seawater is several orders of magnitude higher. This is not to say that the leak shouldn't be found and fixed, but the notion that this demonstrates that our nuclear power plants are unsafe is absurd.
The better question is whether throwing technology at the problem is going to actually help children learn. Of course, the experiment has to be done, but I wouldn't be surprised if, once again, teacher quality and home life quality are by far the dominant factors in student success.
It turns out that there are lots of responses to your criticisms and questions. I will go over a few of the main ones.
First, patents are for 'concrete stuff.' The patent statute makes this quite clear. "The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention." 35 USC 112 (emphasis added). Furthermore, "The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains...to make and use the same." Id (emphasis added).
Now, a common rejoinder here is that many patents have very broadly written claims and weak specifications. This has not gone unnoticed, and there is a trend in Federal Circuit decisions to tighten down the requirement that the claims indeed be fully supported by the specification, which will tend to result in narrower claims and more detailed specifications. Furthermore, many broad claims that get through prosecution end up being invalidated on reexamination or during litigation; broad claims are easier to invalidate than narrower claims. Personally I support eliminating the strong presumption of validity for patents, which would make all patents easier to invalidate.
Second, copyright is not for 'abstract stuff.' Quite the opposite, in fact: copyright protects the concrete expression of an abstract idea. In software this has been interpreted quite narrowly; as long as the source code, object code, and UI elements have not been copied or derived from, one is generally free to duplicate what a program does. This is because copyright explicitly does not cover the functional aspects of a work, only the creative, non-functional aspects. "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." 17 USC 102(b).
Thus, if only copyright were available for software and not patents, there would be at least two major gaps in protection. First, functional aspects of a program could not be protected. All technical innovations would be up for grabs. Second, copyright does not protect against independent implementation, so even the creative aspects would not be protected against clean-room reverse-engineering.
This is all without really getting into the fact that copyright is free and automatic whereas patents are expensive and must be applied for, that a copyright in one country is generally a copyright worldwide whereas patents are territorially limited, that patents have a limited duration whereas copyright is practically forever, or that patents can be invalidated due to obviousness whereas there is no clear equivalent to that doctrine in copyright. All of these and more are reasons why copyright in software cannot simply substitute for patents.
Now one can argue that the patent system has its faults as implemented (and I would agree) or that it doesn't encourage innovation (and I would generally disagree) or even that all software should be open source by statute (and I would certainly disagree), but on at least a theoretical level the different kinds of intellectual property serve different, complementary purposes.
I've noticed that, in general, the more expensive a place is the more likely it is to charge for WiFi. Hotels are especially bad about this. Inexpensive chains usually offer free WiFi whereas expensive hotels generally charge. Hiltons, in particular, often charge unbelievable rates: $15/night in some hotels. Far from competition bringing the price down, some have actually increased their rates over the years; $10/night used to be fairly standard. As best I can figure, they're targeting business travelers with expense accounts. For example, many hotels charge extra for the ability to use a VPN, which makes no technical sense but is a great way to price discriminate.
I've also found that the terrible WiFi rates at many high-end hotels actually make sites like Priceline less useful. Yeah, you might get a great rate on a 4-star hotel, but when you figure in the cost of WiFi and parking it often ends up being nearly a wash. I think in the end it'll actually be the cell phone companies that kill overpriced WiFi. If you can use your tethered cell phone, why pay for WiFi? Sure a tethered data plan might be $60/month, but that's for 30 days compared to just 4 nights of WiFi at a Hilton.
Wow, yeah, you're right. My apologies. I read the summary as 'A federal court overturned the patent as anticipated and obvious, and not drawn to patentable subject matter' and presumed that referred to the Federal Circuit. Someone should go ahead and mod my first post down to avoid confusion.
The district court held that the patent did not claim patentable subject matter and was anticipated by prior art, but the Federal Circuit did not address those aspects of the appeal. The Circuit court confined its opinion to the issue of obviousness. To wit:
Because we agree with the district court's holding of obviousness as to all asserted claims, we need not and do not reach its alternative reasons for holding the '400 patent invalid--namely, that the claims were anticipated and directed to unpatentable subject matter.
That's not prior art at all. The patent is about "obtaining delivery information," not gift ideas or suggestions. A better example would be walking into a store and saying "I'd like to send this widget to my friend Bob who lives on Main Street," the clerk looking up Bob in the phone book and confirming that you meant Bob Smith who lives at 123 Main St, Apt 1, Anytown, Somestate, 12345.
The patent is just about filling in the blanks in the delivery information in case you don't happen to know the gift recipient's ZIP code, apartment number, etc. It's actually an extremely narrow patent, and I've never seen another retailer offer the service. That doesn't mean it's novel and nonobvious, of course, but it passes the laugh test, in my opinion.
updating a graph is not patentable, spreadsheets already do it.
It's a legal rule that in an obviousness analysis you have to consider the claims as a whole. You can't dissect the claims into individual, obvious elements. It's the combination of all of the elements that must be found obvious.
I'm not saying that dynamically updating sparklines in a spreadsheet isn't obvious, just that the argument you made isn't a legally valid one.
Well, see, there you go. That's the kind of prior art worth submitting to the patent office, assuming the examiner doesn't find it.
Plus, I'm not sure why you emphasize open source implementations that predate it. Did you really mean to imply that if I had a closed source implementation that predated it, it would not be prior art ?
No, I didn't mean to imply that at all. I just didn't realize Excel was capable of doing in-cell charting through VB or a plug-in, so I assumed a prior art implementation would most likely come from Open Office, gnumeric, etc.
*facepalm* That should be Model Rules of Professional Conduct, of course. The predecessor to the Model Rules was the Model Code of Professional Responsibility. It's late, and I got the names jumbled up.
The examiner will almost certainly come back with multiple rejections based on obviousness [....]
You're saying this about the patent system that approved the patents on swinging on a swing and using a laser pointer as a cat toy?
I said rejections would be made, not that Microsoft wouldn't be able to overcome them with arguments or amendments. And a quick check shows that rejections were filed in both cases*. Both patents have since been abandoned for failure to pay the maintenance fees, by the way.
* Technically, the record shows that one and two office actions were filed, respectively. Each office action contained one or more rejections, and it's common for them to contain several. The patents are old enough that the complete record is not available on PAIR, so all I can say for certain is that there were rejections filed.
Please stop thinking in a FOSS mind frame. In our world, someone asks a question and if we're experienced in that field we don't mind helping out. In the law world, they just lol'd at you (just like every patent attorney who actually read your post) and are currently waiting for you to swipe your credit card details. Now... Armchair Patent Attorneys... now that's another matter. I'm sure they're willing to provide an abundance of information.
I'm taking the patent bar in a month and the state bar in three. I'm currently an academic, so naturally part of my job is teaching people about the law, but I'm not going to stop doing so if I'm admitted to the bar. In fact, the Model Rules of Professional Responsibility state that lawyers should help to educate the public about the law (note: they aren't required to, but they should).
Furthermore, there are patent attorneys that have made helpful comments on Slashdot over the years, which stands in direct contradiction to your claim.
Similarly, one of the people I work with is an experienced patent attorney and distinguished law professor. We offered to be the subject of a Slashdot interview about patents, particularly software patents. We felt we'd be a good match since he graduated from MIT and I have bachelor's and master's degrees in computer science. Slashdot didn't take us up on the offer, but at least we tried.
And finally I'll just point out that there are, of course, far more armchair patent attorneys than patent attorneys on Slashdot, so statistically it's hardly surprising that most comments, helpful or otherwise, come from non-experts. It would actually be pretty incredible if every patent-related post or comment on Slashdot was met by a host of patent attorneys chiming in on the issue.
A quick search shows: http://sparkline.org/ which on their sf page have a release dated 2004-11-09
It doesn't anticipate any of the claims, but it may help in an obviousness analysis. Specifically, it doesn't automatically update the sparkline if the data changes and it doesn't automatically adjust the horizontal proportion of the sparkline (at least that I could tell the width is set explicitly by the programmer).
Of course, this is to be expected since it's for the web and not a spreadsheet. I suspect a good obviousness argument could come from it though: This is a static sparkline graphing tool. Other static graphing tools have been incorporated into spreadsheets as dynamically updating charts. It would be obvious to add this one new kind of chart to a spreadsheet, especially given that their use on a computer has already been demonstrated.
Normal sparklines are vertically proportional to the surrounding text but not horizontally proportional because, apart from the width of the page, free flowing text has no natural notion of width. A spreadsheet, on the other hand, is made up of discrete cells, so it would be obvious to make the sparkline's width proportional to the width of one or more cells.
I fully expect that those arguments, or something very much like them, will be made by the patent examiner.
The examiner will almost certainly come back with multiple rejections based on obviousness
You have such faith in the Federal Gov't. I wish I were still as naive as you.
This is not naïveté, this is based on personal experience and empirical research. Virtually no patent applications sail through completely unopposed, especially not applications--like this one--that claim combinations of known prior art elements whose combination behaves in a predictable way.
Furthermore, obviousness is probably the most common basis for rejection, especially in a case like this, where the broadest claim is basically 'sparklines in a spreadsheet.' Sparklines are prior art, spreadsheets are prior art, so it's at least arguable that the combination is obvious, especially given that sparklines are really just a special type of chart, which are of course a common and well known spreadsheet feature.
This is one of those issues I'd love to hear a real patent attorney weigh in on: If someone files a patent on something you can prove you demonstrated publicly at an earlier date, what are your options? Can you file an opposition to the patent? How does it work?
I am not an attorney (I'm an academic) and this is not legal advice. If you ever find yourself in a situation like this you should consult a competent patent attorney in your jurisdiction. To be clear, when I use the word 'you' in this post I mean the generic 'you,' not you personally.
Here's the basic flowchart. Has the other party filed an application or received a patent? If they've already received a patent, then your primary option is to put the patent into reexamination. To do this requires evidence of a substantial new question of patentability (i.e., something new the examiner or the courts haven't looked at yet) and the payment of a fee. You can either put it into ex parte reexamination, where you submit your evidence and the patent office takes it from there, or you can put it into inter partes reexamination, where the patent office holds a sort of mini trial with you arguing against the patent's validity and the patent owner arguing for it.
If the patent holder is actually demanding a license, threatening a lawsuit, etc, then you may also have the option of filing what's called a declaratory judgment lawsuit where you ask a court to determine whether the patent is valid or not.
If things are still at the application stage, your options are much more limited. You can submit prior art to the patent office, or, in the rare circumstance that you also have a pending patent application on the same invention, then the patent office may declare what's called an interference and try to figure out who invented the claimed invention first.
Slashdot Mirror
I doubt that the harm happens at the level of actualised research, but rather research choices are effected by intellectual property. Thus, it slips by this study relatively unnoticed.
Actually the study authors looked at that, too. "[F]ew academic bench scientists currently pay much attention to others' patents. Only 5% (18 out of 379) regularly check for patents on knowledge inputs related to their research...Five percent had been made aware of intellectual property (IP) relevant to their research through a notification letter sent either to them or their institution." If they don't even know if something is patented or not, it can't affect whether they decide to research it.
Furthermore, "[E]ven for the few who were aware of others' patents, those third-party patents did not have a large impact on their research. Of the 32 respondents who were aware of relevant IP, four reported changing their research approach and five delayed completion of an experiment by more than 1 month. No one reported abandoning a line of research."
In fact, I'd be all for a general extension to patent law to explicitly allow violation of any patent for the purpose of non-commercial research where any devices made in violation of a patent are not sold or distributed.
What's the need? If the research is non-commercial and no infringing products are sold or distributed, why would the patentee bother suing? It's non-commercial, so the defendant probably has little money and it would likely be a PR disaster. They didn't sell or distribute any infringing products, so damages are likely to be minimal. These are the main reasons why non-profit research is already basically in the clear.
So why not go ahead and codify the de facto research exemption into the law as you suggest? The reason is that it would be exploited like crazy (see the FDA safe harbor for an example). Companies would set up non-profit research arms to do their research, license-free, and then bring the results to market. It's very difficult (maybe impossible, given powerful corporate interests) to design a law that's narrow enough not to be exploited, broad enough to achieve its goal, yet also doesn't invite litigation or burdensome regulatory oversight.
The article makes some vague statements that IP limits traditional biotech research. In fact, empirical studies do not back up such claims. John Walsh, Charlene Cho, Wesley Cohen, View from the Bench: Patents and Material Transfers , 309 Science 2002-2003 (2005). Some highlights:
"Thus, of 381 academic scientists, even including the 10% who claimed to be doing drug development or related downstream work, none were stopped by the existence of third-party patents, and even modifications or delays were rare, each affecting around 1% of our sample."
"In addition, 22 of the 23 respondents to our question about costs reported that there was no fee for the patented technology, and the 23rd respondent said the fee was in the range of $1 to $100."
19% of the respondents reported that other scientists had not complied with material transfer requests (i.e. requests for data or samples), but analysis found that "The patent status of the requested material had no significant effect on noncompliance."
An additional, more focused case study of a highly-commercialized area of research with a lot of patent activity found that "only 3% of respondents reported stopping a project in the past 2 years because of a patent."
Care to cite any of these?
Sure. Here's a few:
Richard A. Posner, An Economic Approach to Legal Procedure and Judicial Administration , 2 J. Legal Stud. 399 (June 1973).
John Leubsdorf, Toward a History of the American Rule on Attorney Fee Recovery , 47 L. & Contemp. Prob. (1984).
Thomas D. Rowe, Jr., The Legal Theory of Attorney Fee Shifting: A Critical Overview , 1982 Duke L.J. 651.
Thomas D. Rowe, Jr., Predicting the Effects of Attorney Fee Shifting, 47 Law & Contemp. Probs. 139 (1984)
But just search law journals and economic journals for terms like "American rule," "English rule," "loser pays," and "attorney fee shifting." You'll get thousands of hits. This is an extremely thoroughly studied problem whose roots go back centuries. It's also one with no clear solution, either theoretically or in practice.
The EFF actually made a claim for attorney's fees earlier in the case, and the claim was denied. The court found that a violation of 512(f) requires either actual knowledge that the material is not infringing or that the fair use be self-evident. Lenz v. Universal Music Corp., Copy. L. Rep. (CCH) P29,540, 8 (N.D. Cal. 2008). The court then found that the plaintiff had neither alleged facts from which actual knowledge could be inferred nor facts showing that the fair use was self-evident. Id. at 9. The plaintiff was given leave to amend the claim to correct these issues, which she did.
The amended version of the complaint alleged that Universal acted in bad faith and deliberate ignorance of fair use. Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150, 1156 (N.D. Cal. 2008). It further alleges that Universal is acting solely to satisfy Prince's personal agenda. Id. Those allegations were held sufficient to deny a motion to dismiss the claim. Id at 1157. The court ruled that copyright holders must undertake a good faith consideration of fair use but they are not required to make a full investigation. Id at 1155-56. The court noted that cases of bad faith are likely to be rare. Id at 1155.
So the outcome here hinges on whether Universal considered fair use and decided in good faith that it did not apply. Normally it would be difficult to prove that Universal ignored fair use as a possible defense or considered it only in bad faith (e.g., had its lawyers tell it what it wanted to hear). The evidence would normally be protected by the attorney-client privilege or the attorney work-product privilege. In this case, however, the EFF won significant parts of a motion to discover such evidence. Lenz v. Universal Music Corp., 2009 U.S. Dist. LEXIS 105180 (N.D. Cal. 2009). Unfortunately, I can't find a link to the EFF's argument for this motion, so it's hard to say how strong their case actually is (e.g., whether they uncovered a smoking gun memo).
As for Mr. Haselton's extensive discussion of the best way to apportion the cost of litigation between parties I will say this: It is remarkable only for its complete lack of citation to or recognition of the numerous legal and economic studies that have been made of the subject over the past couple of centuries. It is the law and economics version of the phenomenon described in this XKCD comic and its accompanying alt-text.
Google has at least 173 issued patents as well as over two hundred pending applications. That doesn't include the various patents (such as the PageRank patent) that it is the exclusive licensee for but does not actually own (Stanford owns it). Google's software patent strategy dates back to at least 1997, when it filed this application, which actually predates the PageRank application.
about half of the 4,400 toll records collected in emergency situations or with after-the-fact approvals were done in technical violation of the law.
'Technical violation of the law' is also known as 'crime.' The degree to which the law has been violated may be relevant for sentencing, but it's irrelevant in determining whether or not a crime has, in fact, taken place.
In true emergencies, Caproni said, agents always had the legal right to get phone records, and lawyers have now concluded there was no need for the after-the-fact approval process.
So how many of these were actually true emergencies? And having the legal right to get something doesn't excuse getting it illegally. If the police have probable cause they can get a warrant to search my house. If they decided to skip getting a warrant and search it anyway, the results of that search are inadmissible even though the police could have done it legally. It should be no different in this case. In fact, in this case there's a statute specifically defining the crime, and it does not excuse a criminal act if it could have been done legally but wasn't.
Bureau officials said agents were working quickly under the stress of trying to thwart the next terrorist attack and were not violating the law deliberately.
That's not a legally recognized excuse. The intent that matters is the intent to intercept the communication, which was plainly present (this is not a case of accidentally tapping the wrong line or anything like that). Whether they knew what they were doing was illegal or whether they thought what they were doing was justified is irrelevant in this case, per the statute.
Caproni said the bureau will use the inspector general's findings to determine whether discipline is warranted.
Discipline? I hope that's just for starters. The ECPA provides for a jail sentence of up to 5 years per violation, and I would like to see prosecutors pursue significant jail sentences for the "senior FBI managers up to the assistant director level" that approved the procedures for emergency requests, particularly for those who did so "for two years after bureau lawyers raised concerns and an FBI official began pressing for changes." They betrayed the public trust and broke the law even after their illegal behavior was pointed out to them. It's utterly inexcusable.
The federal government should also be made to pay the appropriate statutory civil fine to the parties whose phone records were illegally gathered, which is the greater of actual damages, $100 per day of violation, or $10,000. If $10,000 in statutory damages seems excessive, the government should take a look at the Copyright Act some time. And if 5 years in jail seems excessive, it should take a look at the penalties for growing certain plants in your back yard.
So it's okay for them to pollute all of civilization as long as it's to a small enough degree?
Yes, as in most cases this is a matter of degree. The punishment should fit the crime and some things are too small to be worth the transaction cost of quibbling over. In particular, the Nuclear Regulatory Commission has decided that this level of tritium release is below acceptable levels. Would it be better if nuclear plants never released any tritium? Sure.
Over time this could add up and I would suspect that even reaching 1% contamination on our water from years of pollution from these many sources would reduce public water to unusable.
Tritium has a half-life of 12 years. At these ultra low leakage rates it will decay fast enough that it would take an eternity to build up to, as you suggest, 1% contamination. That said, leaks have a way of getting worse if they aren't fixed, so it's appropriate for the plant to find and fix it.
However, this likely will never happen since in essence the contaminated water is being consumed and filtered by every(thing/one) on a daily basis.
Radioactive contaminants aren't really filtered or consumed. They'll stick around until they decay, which is one reason why the laws and regulations for nuclear power in the US are as strict as they are.
I still can't help but wonder what affects these pollutants could ultimately have on all life.
That's a very good attitude to have and I applaud it, but a reduction in the acceptable levels of tritium release should be based on evidence not merely an hypothesis or a hunch.
If it's safe, why should the leak be found and fixed?
I didn't say it was safe, just that it did not demonstrate that the plants are unsafe. If one car randomly explodes, does that prove that all cars are inherently unsafe? Neither did I say the leak was safe forever: obviously if the plant is leaking then something is going wrong. It may be safe now but problems left unattended tend to get worse over time.
Let's be honest here. To the advocates of nuclear power, Chernobyl isn't a demonstration of the danger of nuclear power, so why should any lesser event be considered such?
Well, no Chernobyl-style plants are operated in the US, so why should it demonstrate anything about powerplants in the US?
In any case, the comparison you give is, at best, misleading, and at worst, deliberately so. For the comparison to be meaningful, we'd need to know the mix of uranium isotopes in order to compare their decay modes, energies, and products.
Well, the mix of uranium isotopes in sea water is known, so why don't you pull it up and prove that the comparison wasn't meaningful instead of just assuming that it isn't. I'd say it actually goes in my favor: uranium is toxic whereas tritium isn't, uranium decays into toxic lead (via various radioactive and toxic intermediaries), whereas tritium decays into helium, which isn't toxic or radioactive, and uranium has a decay energy orders of magnitude greater than tritium. Tritium also has a short biological half-life and is readily removed from the body. Uranium, on the other hand, though not readily absorbed by the body tends to bioaccumulate and can stay in the body for years.
Either you haven't the foggiest notion what you're talking about...or you're an energy industry shill
That's a false dichotomy. I both have some idea what I'm talking about and have no connection to the energy industry.
Did you mean 3.34192092 * 10^25?
Yes, Slashdot ate my <sup> tag.
The linked article says that the tritium levels are only half what must be reported to the Nuclear Regulatory Commission. And let's think about what 17,000 parts per liter is. A liter of water contains 3.34192092 * 1025 molecules. So those 17,000 atoms mean that, assuming one tritum atom per molecule, 0.00000000000000000005% of the water is contaminated with tritium. At 3.3ppb the concentration of uranium in seawater is several orders of magnitude higher. This is not to say that the leak shouldn't be found and fixed, but the notion that this demonstrates that our nuclear power plants are unsafe is absurd.
In 1972 the PLATO IV terminals (the kind described in the summary) cost $12,000. Adjusting for inflation, that would be over $60,000 today. Moore's Law has worked some miracles, but as the OLPC project showed, creating a child-oriented, large screen portable computer for $100 is still out of reach.
The better question is whether throwing technology at the problem is going to actually help children learn. Of course, the experiment has to be done, but I wouldn't be surprised if, once again, teacher quality and home life quality are by far the dominant factors in student success.
It turns out that there are lots of responses to your criticisms and questions. I will go over a few of the main ones.
First, patents are for 'concrete stuff.' The patent statute makes this quite clear. "The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention." 35 USC 112 (emphasis added). Furthermore, "The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains...to make and use the same." Id (emphasis added).
Now, a common rejoinder here is that many patents have very broadly written claims and weak specifications. This has not gone unnoticed, and there is a trend in Federal Circuit decisions to tighten down the requirement that the claims indeed be fully supported by the specification, which will tend to result in narrower claims and more detailed specifications. Furthermore, many broad claims that get through prosecution end up being invalidated on reexamination or during litigation; broad claims are easier to invalidate than narrower claims. Personally I support eliminating the strong presumption of validity for patents, which would make all patents easier to invalidate.
Second, copyright is not for 'abstract stuff.' Quite the opposite, in fact: copyright protects the concrete expression of an abstract idea. In software this has been interpreted quite narrowly; as long as the source code, object code, and UI elements have not been copied or derived from, one is generally free to duplicate what a program does. This is because copyright explicitly does not cover the functional aspects of a work, only the creative, non-functional aspects. "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." 17 USC 102(b).
Thus, if only copyright were available for software and not patents, there would be at least two major gaps in protection. First, functional aspects of a program could not be protected. All technical innovations would be up for grabs. Second, copyright does not protect against independent implementation, so even the creative aspects would not be protected against clean-room reverse-engineering.
This is all without really getting into the fact that copyright is free and automatic whereas patents are expensive and must be applied for, that a copyright in one country is generally a copyright worldwide whereas patents are territorially limited, that patents have a limited duration whereas copyright is practically forever, or that patents can be invalidated due to obviousness whereas there is no clear equivalent to that doctrine in copyright. All of these and more are reasons why copyright in software cannot simply substitute for patents.
Now one can argue that the patent system has its faults as implemented (and I would agree) or that it doesn't encourage innovation (and I would generally disagree) or even that all software should be open source by statute (and I would certainly disagree), but on at least a theoretical level the different kinds of intellectual property serve different, complementary purposes.
I've noticed that, in general, the more expensive a place is the more likely it is to charge for WiFi. Hotels are especially bad about this. Inexpensive chains usually offer free WiFi whereas expensive hotels generally charge. Hiltons, in particular, often charge unbelievable rates: $15/night in some hotels. Far from competition bringing the price down, some have actually increased their rates over the years; $10/night used to be fairly standard. As best I can figure, they're targeting business travelers with expense accounts. For example, many hotels charge extra for the ability to use a VPN, which makes no technical sense but is a great way to price discriminate.
I've also found that the terrible WiFi rates at many high-end hotels actually make sites like Priceline less useful. Yeah, you might get a great rate on a 4-star hotel, but when you figure in the cost of WiFi and parking it often ends up being nearly a wash. I think in the end it'll actually be the cell phone companies that kill overpriced WiFi. If you can use your tethered cell phone, why pay for WiFi? Sure a tethered data plan might be $60/month, but that's for 30 days compared to just 4 nights of WiFi at a Hilton.
Wow, yeah, you're right. My apologies. I read the summary as 'A federal court overturned the patent as anticipated and obvious, and not drawn to patentable subject matter' and presumed that referred to the Federal Circuit. Someone should go ahead and mod my first post down to avoid confusion.
The district court held that the patent did not claim patentable subject matter and was anticipated by prior art, but the Federal Circuit did not address those aspects of the appeal. The Circuit court confined its opinion to the issue of obviousness. To wit:
That's not prior art at all. The patent is about "obtaining delivery information," not gift ideas or suggestions. A better example would be walking into a store and saying "I'd like to send this widget to my friend Bob who lives on Main Street," the clerk looking up Bob in the phone book and confirming that you meant Bob Smith who lives at 123 Main St, Apt 1, Anytown, Somestate, 12345.
The patent is just about filling in the blanks in the delivery information in case you don't happen to know the gift recipient's ZIP code, apartment number, etc. It's actually an extremely narrow patent, and I've never seen another retailer offer the service. That doesn't mean it's novel and nonobvious, of course, but it passes the laugh test, in my opinion.
updating a graph is not patentable, spreadsheets already do it.
It's a legal rule that in an obviousness analysis you have to consider the claims as a whole. You can't dissect the claims into individual, obvious elements. It's the combination of all of the elements that must be found obvious.
I'm not saying that dynamically updating sparklines in a spreadsheet isn't obvious, just that the argument you made isn't a legally valid one.
Well, see, there you go. That's the kind of prior art worth submitting to the patent office, assuming the examiner doesn't find it.
Plus, I'm not sure why you emphasize open source implementations that predate it. Did you really mean to imply that if I had a closed source implementation that predated it, it would not be prior art ?
No, I didn't mean to imply that at all. I just didn't realize Excel was capable of doing in-cell charting through VB or a plug-in, so I assumed a prior art implementation would most likely come from Open Office, gnumeric, etc.
Model Rules of Professional Responsibility
*facepalm* That should be Model Rules of Professional Conduct, of course. The predecessor to the Model Rules was the Model Code of Professional Responsibility. It's late, and I got the names jumbled up.
The examiner will almost certainly come back with multiple rejections based on obviousness [....]
You're saying this about the patent system that approved the patents on swinging on a swing and using a laser pointer as a cat toy?
I said rejections would be made, not that Microsoft wouldn't be able to overcome them with arguments or amendments. And a quick check shows that rejections were filed in both cases*. Both patents have since been abandoned for failure to pay the maintenance fees, by the way.
* Technically, the record shows that one and two office actions were filed, respectively. Each office action contained one or more rejections, and it's common for them to contain several. The patents are old enough that the complete record is not available on PAIR, so all I can say for certain is that there were rejections filed.
Please stop thinking in a FOSS mind frame. In our world, someone asks a question and if we're experienced in that field we don't mind helping out. In the law world, they just lol'd at you (just like every patent attorney who actually read your post) and are currently waiting for you to swipe your credit card details. Now ... Armchair Patent Attorneys ... now that's another matter. I'm sure they're willing to provide an abundance of information.
I'm taking the patent bar in a month and the state bar in three. I'm currently an academic, so naturally part of my job is teaching people about the law, but I'm not going to stop doing so if I'm admitted to the bar. In fact, the Model Rules of Professional Responsibility state that lawyers should help to educate the public about the law (note: they aren't required to, but they should).
Furthermore, there are patent attorneys that have made helpful comments on Slashdot over the years, which stands in direct contradiction to your claim.
Similarly, one of the people I work with is an experienced patent attorney and distinguished law professor. We offered to be the subject of a Slashdot interview about patents, particularly software patents. We felt we'd be a good match since he graduated from MIT and I have bachelor's and master's degrees in computer science. Slashdot didn't take us up on the offer, but at least we tried.
And finally I'll just point out that there are, of course, far more armchair patent attorneys than patent attorneys on Slashdot, so statistically it's hardly surprising that most comments, helpful or otherwise, come from non-experts. It would actually be pretty incredible if every patent-related post or comment on Slashdot was met by a host of patent attorneys chiming in on the issue.
A quick search shows: http://sparkline.org/ which on their sf page have a release dated 2004-11-09
It doesn't anticipate any of the claims, but it may help in an obviousness analysis. Specifically, it doesn't automatically update the sparkline if the data changes and it doesn't automatically adjust the horizontal proportion of the sparkline (at least that I could tell the width is set explicitly by the programmer).
Of course, this is to be expected since it's for the web and not a spreadsheet. I suspect a good obviousness argument could come from it though: This is a static sparkline graphing tool. Other static graphing tools have been incorporated into spreadsheets as dynamically updating charts. It would be obvious to add this one new kind of chart to a spreadsheet, especially given that their use on a computer has already been demonstrated.
Normal sparklines are vertically proportional to the surrounding text but not horizontally proportional because, apart from the width of the page, free flowing text has no natural notion of width. A spreadsheet, on the other hand, is made up of discrete cells, so it would be obvious to make the sparkline's width proportional to the width of one or more cells.
I fully expect that those arguments, or something very much like them, will be made by the patent examiner.
The examiner will almost certainly come back with multiple rejections based on obviousness
You have such faith in the Federal Gov't. I wish I were still as naive as you.
This is not naïveté, this is based on personal experience and empirical research. Virtually no patent applications sail through completely unopposed, especially not applications--like this one--that claim combinations of known prior art elements whose combination behaves in a predictable way.
Furthermore, obviousness is probably the most common basis for rejection, especially in a case like this, where the broadest claim is basically 'sparklines in a spreadsheet.' Sparklines are prior art, spreadsheets are prior art, so it's at least arguable that the combination is obvious, especially given that sparklines are really just a special type of chart, which are of course a common and well known spreadsheet feature.
This is one of those issues I'd love to hear a real patent attorney weigh in on: If someone files a patent on something you can prove you demonstrated publicly at an earlier date, what are your options? Can you file an opposition to the patent? How does it work?
I am not an attorney (I'm an academic) and this is not legal advice. If you ever find yourself in a situation like this you should consult a competent patent attorney in your jurisdiction. To be clear, when I use the word 'you' in this post I mean the generic 'you,' not you personally.
Here's the basic flowchart. Has the other party filed an application or received a patent? If they've already received a patent, then your primary option is to put the patent into reexamination. To do this requires evidence of a substantial new question of patentability (i.e., something new the examiner or the courts haven't looked at yet) and the payment of a fee. You can either put it into ex parte reexamination, where you submit your evidence and the patent office takes it from there, or you can put it into inter partes reexamination, where the patent office holds a sort of mini trial with you arguing against the patent's validity and the patent owner arguing for it.
If the patent holder is actually demanding a license, threatening a lawsuit, etc, then you may also have the option of filing what's called a declaratory judgment lawsuit where you ask a court to determine whether the patent is valid or not.
If things are still at the application stage, your options are much more limited. You can submit prior art to the patent office, or, in the rare circumstance that you also have a pending patent application on the same invention, then the patent office may declare what's called an interference and try to figure out who invented the claimed invention first.