Trademark infringement is judged under a likelihood of confusion standard. Note that there does not have to be proof of actual confusion (although that's pretty strong evidence of a likelihood of confusion). So it wouldn't necessarily have to be a perfect copy so long as the typical, reasonably prudent consumer passing by the store would likely be confused as to whether it was an Apple Store or not.
Fake Apple Stores are a thing, so one can see why Apple did this. Whether or not one agrees with the trademarkability of store designs as a policy matter is another issue.
In this case the trademark is defined by the illustration, which is basically a line drawing of an Apple Store minus the logo. The text in the summary is drawn from the "description of mark" field, which is just a description of the image and does not define the trademark. Further, the summary suggests that Apple is individually claiming trademark protection on various features of its store design ('clear glass storefront...' or an 'oblong table with stools...'). This is not the case. The trademark claims the entire design as a whole.
If the computer screen is an essential element, then I don't need a patent license for my free software that draws lines using Bresenham's algorithm, because I'm not using Bresenham's patented computer screen!
The patent doesn't claim that the screen is itself new or patented. The patent claims the method of displaying a line on any computer screen. It's no different than a patent on, say, a method of catching mice using a bucket of water, a ramp, and a piece of bait dangled above the bucket. It doesn't matter where you get the bucket, the ramp, or the bait. The patent covers the method of using these pre-existing objects together to catch mice.
You can't have it both ways. If a physical object that I'm not selling or giving away is essential to the patent, then my free software is not covered by the patent.
I'm not trying to have it both ways. This is a long-settled area of the law, codified in the statute. The end users would be directly infringing the patent, and you would likely be liable for indirect infringement. Imagine a patented mechanical device that is held together with screws. If someone sells all of the parts, minus the screws, plus instructions on how to put it together and where to buy the screws, that's indirect infringement. In this hypothetical you're distributing the software knowing that end users will use it in an infringing manner with their computer screens (which, again, could be any kind of computer screen).
software patents are illegal, since software is mathematics.
Good thing "software patents" don't actually claim software per se but rather methods of programming or using physical computing devices.
Consider this highly simplified claim: "A method for displaying a line on a computer screen, comprising using Bresenham's line algorithm to draw the line on the computer screen." Suppose that the patent applicant was Bresenham himself and the method was new.
This claim does not claim mathematics. The algorithm itself can, of course, be reduced to a proof, per the Curry-Howard correspondence. But "a computer screen" is neither software nor mathematics. No amount of thinking about mathematics well ever result in a line appearing on a computer screen. You need hardware to do that. And since the computer screen is an essential element of the claim, mathematics alone (such as the aforementioned proof) will never infringe it.
If Congress wants them to be legal, they have to write a statute to do so.
What in the patent statute prohibits software patents? How is new, useful, and nonobvious software not an improvement of a machine (namely a computer), per 101? How is new, useful, and nonobvious software not a a new use of a known machine, per 100 and 101? It seems to me that the plain language of the patent statute clearly encompasses software, and that it is the judicially-invented "abstract idea" exception that potentially prohibits them.
Software developers are the folks most immediately and directly affected by the software patents the USPTO issues, and it's getting to the point that no one can code anything without potentially getting sued.
Really? How many software developers (not companies, individual developers) have been sued for patent infringement? How often do software developers make the independent decision to design around a software patent, as opposed to being told by management to do so? The fact is that individual developers are actually some of the folks least immediately or directly affected by software patents. They don't get sued, and software patents largely don't affect their day to day work.
Bear in mind that there are perhaps a 1000 patent infringement suits filed per year that involve claims at least tangentially related to software. Many of them feature the same defendants over and over again, and many of the defendants are not primarily software companies. Two years ago there were over 56,000 software companies listed on LinkedIn, and I imagine there are more now. That's a very rough estimate, but the point is that a statement like "no one can code anything without potentially getting sued" is true only in the loosest sense. In fact most software companies will never be sued for patent infringement.
Slashdot has been reporting on the coming software patent apocalypse for over a decade now, and it still has yet to materialize. Software and hardware development continue at an incredible pace rarely seen in history or in any other industry. The software and hardware industries continue to grow. And the United States, with all of its software patents and related litigation, continues to be a leader in these industries.
There are problems with the patent system, and software patents are not immune to those problems. It may even be true (although essentially impossible to prove) that software patents are a net drain on the industry. But it is clearly not the case that software patents are crippling developers or causing everyone to get sued.
Although it's not nice of them to sue without talking to the From1 builders first
Since the 2007 MedImmune v. Genentech case it has been very difficult for a patentee to discuss potential infringement or licensing with another party without creating declaratory judgment jurisdiction. DJ jurisdiction allows the alleged infringer to file a suit for a declaratory judgment that the patent is invalid, unenforceable, or uninfringed (or some combination). The big advantage is that it lets the alleged infringer pick the time and place of the suit. So patentees have become more likely to file suit and talk about settlement later rather than trying to negotiate a license and then filing a suit only if that fails.
Now if any state had the testicular fortitude to challenge them over their utterly unconstitutional use of the threat of withholding federal highway funds from states that failed to raise the drinking age to 21, we might see a restoration of sanity in that direction as well.
A state did challenge the federal government over that very thing. It lost. The decision was 7-2, and with the current makeup of the Court it's unlikely that it would hear a similar case.
What's "a single mechanical device"? Do the multiple tools in a fancy CNC machine make it multiple devices? What about the fact that a CNC mill is really a combination of the tools, the mill, and the software and hardware that control it? What if the various parts can be interchanged and upgraded?
And what's "the output?" If I build a new type of wrench using a forge, a hammer, and an anvil (multiple devices), that's patentable under your theory. But if the exact same wrench gets built using a CNC mill, it isn't? What if it could be made with a CNC mill but wasn't? Why should it matter how the invention was developed?
And what if I design the invention using multiple tools and get a patent but then someone else builds the product using a single specialized device? Under your theory, is that infringement or not? Why or why not?
What I'm trying to underscore in my comments on this story is that drafting laws is hard to do well. I'm not sure why people think Stallman would be particularly good at it. He spends a lot of time thinking about programming, philosophy, and policy. I don't get the impression that he's thought very deeply about how best to implement policy through legislation. It seems like a classic case of Engineer's Disease, assuming that competency in one area automatically imbues one with competency in another.
My issue with software patents are that inventors have the tools to create just about anything in their own home
For the cost of a high-end computer you can also buy a CNC mill or a 3D printer. Should mechanical device patents also be abolished, since just about any device can be designed and built in a person's home?
There's nothing non-obvious with just about any software
Ah, right. That's why computer science had a massive explosion of ideas in the 30s and 40s and then has been completely stagnant ever since. It was all so obvious!
Even worse is the fact you could be unknowingly violating a patent without even knowing it and the system purposely allows patent holders to wait around until inventors start to actually profit from their inventions and THEN start suing
That's not how patent damages work. Damages don't start accruing until after the infringer has notice of the patent (actual or constructive). Actual notice means actually being aware of the patent. Constructive notice requires that the patentee sell a product marked with the patent number, which means doing more than just waiting around until others start to use the invention.
FPGA's are not at this time "generally used computing hardware", so the patent still applies to that line and above.
You've stated a conclusion without giving any reasons. What does "generally used" mean? What does generally mean? A majority of people in the market? What's the market? Used for a long time? How long? What does used mean? Used in a way that would be infringing or used for any purpose? Used by whom? What is "computing hardware?" Is an abacus computing hardware? What about a special-purpose chip that can't be used for general purpose computation? And once you've defined these terms in a rigorous way, please explain why FPGAs don't fit the criteria.
You don't have to muck with the definition of hardware or software or patents (which can all be gamed by lawyers).
Right, you just have to much with the definition of "a program" and "generally used computing hardware." So you do have to muck with the definitions of software ("programs") and hardware after all, plus whatever "generally used" means.
In your example, once you move the code to general purpose hardware, it's no longer infringement.
Stallman's suggestion has nothing to do with general purpose hardware, only generally used hardware, which may or may not be general purpose.
This is not true and hasn't been for a long time, if it ever was. Lawyers have not been a majority of members of Congress since at least some time before 1945. The 92nd Congress (71-73) did have a bare majority of lawyers in the Senate, but that's about it. The percentage of lawyers is presently only around 25% for the House and around 38% for the Senate, and the percentage has been declining for decades, particularly in the House.
Anyone got a citation for this, that Congress does not have the power to limit patents which already have been granted?
It's a long-standing principle dating back to McClurg v. Kingsland, 42 US 202 (1843). But even if a patent could be retroactively invalidated by legislative fiat or effectively invalidated by making it (virtually) unenforceable, the Fifth Amendment's Takings Clause would likely entitle the patent owner to just compensation.
Most of Apple and Google's patent-related spending was not on litigation but rather patent purchases, such as Google buying Motorola primarily for its patent portfolio. But the value of those patents is part of what enabled Motorola to invest in the R&D that produced those inventions in the first place. Effectively, Apple and Google financed R&D done at other companies. I don't think it's meaningful to draw such a bright line between "spending on patents" and "spending on R&D."
Actually, Uniloc has sued Microsoft, Sony, Adobe, Electronic Arts, and a host of other companies large and small. Some of those suits (such as those against Mojang and EA) were based on the same patent as the suit against Laminar Research. It seems to me that the defendants should try to work out a shared defense, since it's in all of their interests to see the patent invalidated.
I'll also note that it's interesting that Google has apparently not tried to intervene in the suit. Compare that to the Lodsys suit in which Apple intervened on behalf of iOS developers.
What this boils down to is tightening up the enablement and written description requirements of 112 of the Patent Act, specifically with regard to the way functional claims are judged. This is not a particularly new idea, and quite a few people (including those that could be called 'pro-patent') have been saying for years that this is a reasonable way to address problems with lots of different kinds of patents, including software patents, that doesn't involve technology-specific changes to the law. I certainly have mentioned it on Slashdot many times (e.g. this comment from 2010).
One issue is that the use of functional claiming has been in pretty steep decline for a few decades now. So I'm not sure just how many software patents this approach will catch, but it could be that software patents are one of the last holdouts for functional claiming. Alternatively, the courts could begin to interpret software patents as using functional claiming even when they don't use the traditional "means-for" construction. This is already done in some cases (i.e. "means for" is not a necessary magic phrase), but it could become more common.
The bottom line is that this is a call to restrict patenting to only that which the inventor actually discovered and actually described 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." In other words, to enforce the statute as written.
The vast majority of defendants settle because patent litigation is risky, disruptive, and expensive, regardless of the merits
Note that patent cases are not unique in this regard. In 2011, only 1.1% of civil cases in federal district court reached trial. Some of the other 98.9% were disposed of through summary judgment or involuntary dismissal, but the great majority settled. The statistics are not skewed by a large number of patent cases, either. In 2011 there were only 3,337 patent suits filed, compared to 301,474 total civil cases. In other words, patent cases made up 1.1% of federal civil cases. And of that 3,337, 868 (26%!) of them didn't involve any court action past filing the suit.
Now, it is true that patent litigation is one of the more expensive kinds of litigation, and I favor a strong fee-shifting policy in order to reduce the leverage that plaintiffs have to extract nuisance settlements (i.e. settling for just under the cost of litigation). But it's not as though patent defendants are unusually likely to settle rather than go to trial. In fact, the patent trial rate is one of the highest in federal litigation, at 3.2%.
It's not actually true, though. The Eastern District of Texas is not the fastest district for patent cases. Virginia Eastern and Wisconsin Western are both significantly faster (29 months to jury trial versus 12 and 13 months, respectively). Nor are its rulings "usually" (i.e. more often than not) in favor of patent owners. These days it's about average, relative to other popular patent litigation districts.
And given the change in the law of venue I'd be surprised if the case stayed in Texas Eastern. Neither Apple nor the university have a significant presence there (Apple's Austin campus is in Texas Western), and it's become significantly easier to get out of an inconvenient forum in patent cases in the past couple of years.
Anyway, gene patents do not cover "a gene." They cover an isolated, purified DNA sequence, which does not occur in nature. It's no different from patenting an isolated, purified drug naturally found in a non-isolated, impure state in a plant.
If you "invented" something that requires other univented technology to work then you haven't invented shit.
Sure you have. This kind of thing happens all the time. For example, the bar code was invented long before affordable lasers were available. Early versions worked, but it wasn't until the invention of cheap lasers that bar code scanners became practical and cheap enough to become ubiquitous.
What Posner is suggesting is called a working requirement, and many countries have it already (e.g. Turkey and India). Working requirements are necessarily so full of exceptions and holes that they are almost completely ineffective. There are many legitimate reasons why a patentee might not be able to produce the patented invention (beyond, perhaps, a prototype or demonstration). The patentee may need additional funding. It might need regulatory approval. It might be waiting for upstream suppliers. It might require an as-yet uninvented technology to make the invention practical or profitable. The market might not exist yet or might not be large enough to make the invention profitable. It might be building large, expensive factories. It might be negotiating with licensees or still looking for licensees. The list goes on.
So, you might say, let's just set a strict deadline and to heck with the excuses and exemptions. The result, then, is that the system favors technologies and industries with low startup costs and quick time to market and disfavors technologies and industries with high startup costs and long lead times. I'm not sure we want to encourage even more short-term thinking in business than we have already.
Instead we can just settle for deciding whether one invention is more novel, useful and non-obvious than another invention, which should be much easier.
Really? How easy do you think it is to compare the novelty, utility, and non-obviousness of a new drug with the novelty, utility, and non-obviousness of a better mousetrap? Or a new metal alloy? Or a new kind of medical imaging device? Or a new method for making smaller integrated circuits? These are completely unquantifiable and highly subjective comparisons.
Slashdot Mirror
Trademark infringement is judged under a likelihood of confusion standard. Note that there does not have to be proof of actual confusion (although that's pretty strong evidence of a likelihood of confusion). So it wouldn't necessarily have to be a perfect copy so long as the typical, reasonably prudent consumer passing by the store would likely be confused as to whether it was an Apple Store or not.
Fake Apple Stores are a thing, so one can see why Apple did this. Whether or not one agrees with the trademarkability of store designs as a policy matter is another issue.
In this case the trademark is defined by the illustration, which is basically a line drawing of an Apple Store minus the logo. The text in the summary is drawn from the "description of mark" field, which is just a description of the image and does not define the trademark. Further, the summary suggests that Apple is individually claiming trademark protection on various features of its store design ('clear glass storefront...' or an 'oblong table with stools...'). This is not the case. The trademark claims the entire design as a whole.
If the computer screen is an essential element, then I don't need a patent license for my free software that draws lines using Bresenham's algorithm, because I'm not using Bresenham's patented computer screen!
The patent doesn't claim that the screen is itself new or patented. The patent claims the method of displaying a line on any computer screen. It's no different than a patent on, say, a method of catching mice using a bucket of water, a ramp, and a piece of bait dangled above the bucket. It doesn't matter where you get the bucket, the ramp, or the bait. The patent covers the method of using these pre-existing objects together to catch mice.
You can't have it both ways. If a physical object that I'm not selling or giving away is essential to the patent, then my free software is not covered by the patent.
I'm not trying to have it both ways. This is a long-settled area of the law, codified in the statute. The end users would be directly infringing the patent, and you would likely be liable for indirect infringement. Imagine a patented mechanical device that is held together with screws. If someone sells all of the parts, minus the screws, plus instructions on how to put it together and where to buy the screws, that's indirect infringement. In this hypothetical you're distributing the software knowing that end users will use it in an infringing manner with their computer screens (which, again, could be any kind of computer screen).
software patents are illegal, since software is mathematics.
Good thing "software patents" don't actually claim software per se but rather methods of programming or using physical computing devices.
Consider this highly simplified claim: "A method for displaying a line on a computer screen, comprising using Bresenham's line algorithm to draw the line on the computer screen." Suppose that the patent applicant was Bresenham himself and the method was new.
This claim does not claim mathematics. The algorithm itself can, of course, be reduced to a proof, per the Curry-Howard correspondence. But "a computer screen" is neither software nor mathematics. No amount of thinking about mathematics well ever result in a line appearing on a computer screen. You need hardware to do that. And since the computer screen is an essential element of the claim, mathematics alone (such as the aforementioned proof) will never infringe it.
If Congress wants them to be legal, they have to write a statute to do so.
What in the patent statute prohibits software patents? How is new, useful, and nonobvious software not an improvement of a machine (namely a computer), per 101? How is new, useful, and nonobvious software not a a new use of a known machine, per 100 and 101? It seems to me that the plain language of the patent statute clearly encompasses software, and that it is the judicially-invented "abstract idea" exception that potentially prohibits them.
Software developers are the folks most immediately and directly affected by the software patents the USPTO issues, and it's getting to the point that no one can code anything without potentially getting sued.
Really? How many software developers (not companies, individual developers) have been sued for patent infringement? How often do software developers make the independent decision to design around a software patent, as opposed to being told by management to do so? The fact is that individual developers are actually some of the folks least immediately or directly affected by software patents. They don't get sued, and software patents largely don't affect their day to day work.
Bear in mind that there are perhaps a 1000 patent infringement suits filed per year that involve claims at least tangentially related to software. Many of them feature the same defendants over and over again, and many of the defendants are not primarily software companies. Two years ago there were over 56,000 software companies listed on LinkedIn, and I imagine there are more now. That's a very rough estimate, but the point is that a statement like "no one can code anything without potentially getting sued" is true only in the loosest sense. In fact most software companies will never be sued for patent infringement.
Slashdot has been reporting on the coming software patent apocalypse for over a decade now, and it still has yet to materialize. Software and hardware development continue at an incredible pace rarely seen in history or in any other industry. The software and hardware industries continue to grow. And the United States, with all of its software patents and related litigation, continues to be a leader in these industries.
There are problems with the patent system, and software patents are not immune to those problems. It may even be true (although essentially impossible to prove) that software patents are a net drain on the industry. But it is clearly not the case that software patents are crippling developers or causing everyone to get sued.
Although it's not nice of them to sue without talking to the From1 builders first
Since the 2007 MedImmune v. Genentech case it has been very difficult for a patentee to discuss potential infringement or licensing with another party without creating declaratory judgment jurisdiction. DJ jurisdiction allows the alleged infringer to file a suit for a declaratory judgment that the patent is invalid, unenforceable, or uninfringed (or some combination). The big advantage is that it lets the alleged infringer pick the time and place of the suit. So patentees have become more likely to file suit and talk about settlement later rather than trying to negotiate a license and then filing a suit only if that fails.
Now if any state had the testicular fortitude to challenge them over their utterly unconstitutional use of the threat of withholding federal highway funds from states that failed to raise the drinking age to 21, we might see a restoration of sanity in that direction as well.
A state did challenge the federal government over that very thing. It lost. The decision was 7-2, and with the current makeup of the Court it's unlikely that it would hear a similar case.
What's "a single mechanical device"? Do the multiple tools in a fancy CNC machine make it multiple devices? What about the fact that a CNC mill is really a combination of the tools, the mill, and the software and hardware that control it? What if the various parts can be interchanged and upgraded?
And what's "the output?" If I build a new type of wrench using a forge, a hammer, and an anvil (multiple devices), that's patentable under your theory. But if the exact same wrench gets built using a CNC mill, it isn't? What if it could be made with a CNC mill but wasn't? Why should it matter how the invention was developed?
And what if I design the invention using multiple tools and get a patent but then someone else builds the product using a single specialized device? Under your theory, is that infringement or not? Why or why not?
What I'm trying to underscore in my comments on this story is that drafting laws is hard to do well. I'm not sure why people think Stallman would be particularly good at it. He spends a lot of time thinking about programming, philosophy, and policy. I don't get the impression that he's thought very deeply about how best to implement policy through legislation. It seems like a classic case of Engineer's Disease, assuming that competency in one area automatically imbues one with competency in another.
My issue with software patents are that inventors have the tools to create just about anything in their own home
For the cost of a high-end computer you can also buy a CNC mill or a 3D printer. Should mechanical device patents also be abolished, since just about any device can be designed and built in a person's home?
There's nothing non-obvious with just about any software
Ah, right. That's why computer science had a massive explosion of ideas in the 30s and 40s and then has been completely stagnant ever since. It was all so obvious!
Even worse is the fact you could be unknowingly violating a patent without even knowing it and the system purposely allows patent holders to wait around until inventors start to actually profit from their inventions and THEN start suing
That's not how patent damages work. Damages don't start accruing until after the infringer has notice of the patent (actual or constructive). Actual notice means actually being aware of the patent. Constructive notice requires that the patentee sell a product marked with the patent number, which means doing more than just waiting around until others start to use the invention.
At the point programmabel hardware was used.
Why? Stallman just talks about "generally used computing hardware." What does that have to do with programmability?
FPGA's are not at this time "generally used computing hardware", so the patent still applies to that line and above.
You've stated a conclusion without giving any reasons. What does "generally used" mean? What does generally mean? A majority of people in the market? What's the market? Used for a long time? How long? What does used mean? Used in a way that would be infringing or used for any purpose? Used by whom? What is "computing hardware?" Is an abacus computing hardware? What about a special-purpose chip that can't be used for general purpose computation? And once you've defined these terms in a rigorous way, please explain why FPGAs don't fit the criteria.
You don't have to muck with the definition of hardware or software or patents (which can all be gamed by lawyers).
Right, you just have to much with the definition of "a program" and "generally used computing hardware." So you do have to muck with the definitions of software ("programs") and hardware after all, plus whatever "generally used" means.
In your example, once you move the code to general purpose hardware, it's no longer infringement.
Stallman's suggestion has nothing to do with general purpose hardware, only generally used hardware, which may or may not be general purpose.
most of the folks in Congress are lawyers
This is not true and hasn't been for a long time, if it ever was. Lawyers have not been a majority of members of Congress since at least some time before 1945. The 92nd Congress (71-73) did have a bare majority of lawyers in the Senate, but that's about it. The percentage of lawyers is presently only around 25% for the House and around 38% for the Senate, and the percentage has been declining for decades, particularly in the House.
Anyone got a citation for this, that Congress does not have the power to limit patents which already have been granted?
It's a long-standing principle dating back to McClurg v. Kingsland, 42 US 202 (1843). But even if a patent could be retroactively invalidated by legislative fiat or effectively invalidated by making it (virtually) unenforceable, the Fifth Amendment's Takings Clause would likely entitle the patent owner to just compensation.
Most of Apple and Google's patent-related spending was not on litigation but rather patent purchases, such as Google buying Motorola primarily for its patent portfolio. But the value of those patents is part of what enabled Motorola to invest in the R&D that produced those inventions in the first place. Effectively, Apple and Google financed R&D done at other companies. I don't think it's meaningful to draw such a bright line between "spending on patents" and "spending on R&D."
Actually, Uniloc has sued Microsoft, Sony, Adobe, Electronic Arts, and a host of other companies large and small. Some of those suits (such as those against Mojang and EA) were based on the same patent as the suit against Laminar Research. It seems to me that the defendants should try to work out a shared defense, since it's in all of their interests to see the patent invalidated.
I'll also note that it's interesting that Google has apparently not tried to intervene in the suit. Compare that to the Lodsys suit in which Apple intervened on behalf of iOS developers.
What this boils down to is tightening up the enablement and written description requirements of 112 of the Patent Act, specifically with regard to the way functional claims are judged. This is not a particularly new idea, and quite a few people (including those that could be called 'pro-patent') have been saying for years that this is a reasonable way to address problems with lots of different kinds of patents, including software patents, that doesn't involve technology-specific changes to the law. I certainly have mentioned it on Slashdot many times (e.g. this comment from 2010).
One issue is that the use of functional claiming has been in pretty steep decline for a few decades now. So I'm not sure just how many software patents this approach will catch, but it could be that software patents are one of the last holdouts for functional claiming. Alternatively, the courts could begin to interpret software patents as using functional claiming even when they don't use the traditional "means-for" construction. This is already done in some cases (i.e. "means for" is not a necessary magic phrase), but it could become more common.
The bottom line is that this is a call to restrict patenting to only that which the inventor actually discovered and actually described 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." In other words, to enforce the statute as written.
The vast majority of defendants settle because patent litigation is risky, disruptive, and expensive, regardless of the merits
Note that patent cases are not unique in this regard. In 2011, only 1.1% of civil cases in federal district court reached trial. Some of the other 98.9% were disposed of through summary judgment or involuntary dismissal, but the great majority settled. The statistics are not skewed by a large number of patent cases, either. In 2011 there were only 3,337 patent suits filed, compared to 301,474 total civil cases. In other words, patent cases made up 1.1% of federal civil cases. And of that 3,337, 868 (26%!) of them didn't involve any court action past filing the suit.
Now, it is true that patent litigation is one of the more expensive kinds of litigation, and I favor a strong fee-shifting policy in order to reduce the leverage that plaintiffs have to extract nuisance settlements (i.e. settling for just under the cost of litigation). But it's not as though patent defendants are unusually likely to settle rather than go to trial. In fact, the patent trial rate is one of the highest in federal litigation, at 3.2%.
It's not actually true, though. The Eastern District of Texas is not the fastest district for patent cases. Virginia Eastern and Wisconsin Western are both significantly faster (29 months to jury trial versus 12 and 13 months, respectively). Nor are its rulings "usually" (i.e. more often than not) in favor of patent owners. These days it's about average, relative to other popular patent litigation districts.
And given the change in the law of venue I'd be surprised if the case stayed in Texas Eastern. Neither Apple nor the university have a significant presence there (Apple's Austin campus is in Texas Western), and it's become significantly easier to get out of an inconvenient forum in patent cases in the past couple of years.
"Invention" means "invention or discovery." 35 USC 100(a). Further, the Constitution's Patent and Copyright Clause refers to "discoveries," not "inventions."
Anyway, gene patents do not cover "a gene." They cover an isolated, purified DNA sequence, which does not occur in nature. It's no different from patenting an isolated, purified drug naturally found in a non-isolated, impure state in a plant.
Then that patent lawyer explained the concept of obviousness very poorly because that's not what it means, nor is it the legal test.
If you "invented" something that requires other univented technology to work then you haven't invented shit.
Sure you have. This kind of thing happens all the time. For example, the bar code was invented long before affordable lasers were available. Early versions worked, but it wasn't until the invention of cheap lasers that bar code scanners became practical and cheap enough to become ubiquitous.
Prosecutorial immunity is not something that all lawyers have. It's a special feature of the office, not of being a lawyer.
What Posner is suggesting is called a working requirement, and many countries have it already (e.g. Turkey and India). Working requirements are necessarily so full of exceptions and holes that they are almost completely ineffective. There are many legitimate reasons why a patentee might not be able to produce the patented invention (beyond, perhaps, a prototype or demonstration). The patentee may need additional funding. It might need regulatory approval. It might be waiting for upstream suppliers. It might require an as-yet uninvented technology to make the invention practical or profitable. The market might not exist yet or might not be large enough to make the invention profitable. It might be building large, expensive factories. It might be negotiating with licensees or still looking for licensees. The list goes on.
So, you might say, let's just set a strict deadline and to heck with the excuses and exemptions. The result, then, is that the system favors technologies and industries with low startup costs and quick time to market and disfavors technologies and industries with high startup costs and long lead times. I'm not sure we want to encourage even more short-term thinking in business than we have already.
Instead we can just settle for deciding whether one invention is more novel, useful and non-obvious than another invention, which should be much easier.
Really? How easy do you think it is to compare the novelty, utility, and non-obviousness of a new drug with the novelty, utility, and non-obviousness of a better mousetrap? Or a new metal alloy? Or a new kind of medical imaging device? Or a new method for making smaller integrated circuits? These are completely unquantifiable and highly subjective comparisons.