The courts took a while to come around to it, but at this point they agree with you. Simply slapping "on a computer" or "on the internet" onto a known algorithm, business method, etc is likely to be considered obvious. For example: "Because Internet and Web browser technologies had become commonplace for communicating and displaying information, it would have been obvious to adapt existing processes to incorporate them for those functions." Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318 (Fed. Cir. 2008). Similarly: "Accommodating a prior art mechanical device that accomplishes that goal to modern electronics would have been reasonably obvious to one of ordinary skill in designing children's learning devices. Applying modern electronics to older mechanical devices has been commonplace in recent years." Leapfrog Enterprises, Inc. v. Fisher-Price, Inc., 485 F. 3d 1157 (Fed.Cir. 2007).
The difficulty of implementing the algorithm once it is described has very little to do with patentability. In fact, if the patent didn't give a person of ordinary skill in the art sufficient information to implement the algorithm without undue experimentation then the patent would be invalid for lack of enablement. As a non-software example, consider patented compositions of matter such as metal alloys. Many alloys are very simple to create in practice; the difficult is coming up with the particular mix of elements in the first place.
However, if the algorithm is known in the prior art, then adding "on a computer" to it is now (properly, in my opinion) considered to be obvious in most cases.
I'm not commenting on whether the claimed invention is obvious. I haven't done much kernel hacking; I'll take other commenters at their word that the method would have been obvious to a kernel programmer of ordinary skill. That's fine. My point is that the invention was not reduced to mathematics, as no amount of mathematics will conjure up a physical computer system. And in fact this is the case for essentially all software patents.
I'm not arguing what should or should not be. I'm explaining what is. The patent was not reduced to math because a physical computer system is an element of the claim. And the Curry Howard Correspondence does not make computer implemented inventions unpatentable. These are facts, for better or worse.
Regarding the general purpose nature of (most) computers: "A general purpose computer, or microprocessor, programmed to carry out an algorithm creates 'a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.'" WMS Gaming, Inc. v. International Game Technology, 184 F. 3d 1339, 1348 (Fed.Cir. 1999) (quoting In re Alappat, 33 F.3d 1526, 1545 (Fed.Cir. 1994) (en banc)).
So, yes, general purpose machine plus software equals a patentable special purpose computer, subject to all the other requirements of patentability. That's the law right now, whether you agree or disagree with whether it ought to be so.
I am an attorney & patent agent and I hold multiple degrees in mathematics and computer science, so I feel fairly competent to speak on this issue.
The claims require a physical implementation (e.g. "An information storage and retrieval system"). No amount of math will produce such a system out of the aether. Nor does thinking about the math or the formulas on pen & paper infringe the patent. The specification makes it clear that "information storage and retrieval system" refers to a computer system. Thus, the patent was not actually reduced to pure mathematics.
The nonpatentability of mathematics refers literally to patenting a formula or algorithm without any useful application, just as chemical elements cannot be patented but a mechanical device made entirely of a single element could be. A claim to a bare formula would be invalid for lack of utility as well as lack of patentable subject matter. Consequently, the Curry-Howard Correspondence has no effect on the patentability of computer-implemented inventions.
In fact we should enact a substantial annual fee to maintain patent protection.
It's every 3.5 years (with a 6 month grace period) instead of annual, but the US already has patent maintenance fees. For regular patentees the maintenance fee schedule is $980 / $2480 / $4110. So over the life of a patent that's $7570, on top of the $330 filing fee, $540 search fee, $220 examination fee, and $1510 issue fee for a total of $10,170. For small entities (i.e. non-profits, individuals, and companies with = 500 employees) it's basically half that. Then there are more fees for long applications, complicated applications, appeals, time extensions, surcharges, and late fees.
Maybe that doesn't seem like much, but bear in mind that most any patent worth having will also be filed in other countries. If you file everywhere with a patent system it's roughly $200,000 in fees. Over the life of the patents it'll be something like $2 million in maintenance fees and annuities. Even if you stick to major markets like the US, Canada, Europe, Australia, and Japan the costs get very high, very quickly.
And that's all before you start paying lawyers and translators (a lot of countries want your applications translated into one of their official languages, and those translations can be very expensive because a patent application is both a legal and scientific document). A very rough guide is that the attorneys and translators will cost you 2-3 times what the government will, at a minimum. Oh, and this process will take about 3-5 years, so a lot of these fees (including what your attorneys charge) will go up during that time.
So, bearing all that in mind, I think that for large entities at least there's still room for growth in fees, but the international context has to be considered. If everybody starts raising fees substantially then the costs will quickly become unduly burdensome. Any increases have to be judged very carefully, which is why the PTO is currently favoring a "pay more, get more" approach (e.g. for another $4000 you can get prioritized examination) rather than raising costs across the board.
If Microsoft wins this case, its purported 235 patents that Linux supposedly infringes upon (they have yet to list them after all these years because they are likely piss-weak) are further weakened?
Microsoft is a defendant in about 50 patent infringement suits at any given time. They are the target of far, far more patent infringement suits than they file. It's in their strategic interest to make it somewhat easier to invalidate patents.
This case also demonstrates the lengths to which Microsoft is willing to go to defend an infringement case. There was a full jury trial, a reexamination at the Patent Office, a (denied) request for a second reexamination, an appeal of the injunction to the Federal Circuit, an appeal of the case itself to the Federal Circuit, and now this appeal to the Supreme Court. If the Supreme Court agrees with Microsoft, the case will go back to the trial court for a new trial, with, potentially, another round of appeals if Microsoft loses again.
I can not lay my hand on any part of the Union Constitution which gives the Executive branch power to act like the Judicial branch. Perhaps I don't understand the "ITC"'s location within the government, but it appears to me to be an unconstitutional organization.
The ITC is an Article I court or "legislative court," so-called because they are created by an act of Congress. The Supreme Court has repeatedly upheld the constitutionality of Article I courts, at least when certain constraints are in place (e.g. their rulings must be reviewable by a regular Article III court). "[I]t long has been settled that Article 3 does not express the full authority of Congress to create courts, and that other articles invest Congress with powers in the exertion of which it may create inferior courts and clothe them with functions deemed essential or helpful in carrying those powers into execution." Ex parte Bakelite Corp., 279 U.S. 438 (1929). "Article III does not confer on litigants an absolute right to the plenary consideration of every nature of claim by an Article III court." Commodity Futures Trading Com'n v. Schor, 478 U.S. 833 (1986). Assigning limited adjudicatory functions to Article I courts is "consistent with Art. III, so long as the essential attributes of the judicial power are retained in the Art. III court, and so long as Congress' adjustment of the traditional manner of adjudication can be sufficiently linked to its legislative power to define substantive rights." Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 US 50 (1982).
There are tons of Article I courts, including the ITC, Bankruptcy Courts, Tax Courts, courts-martial, the Patent Office's Board of Patent Appeals and Interferences and Trademark Trial and Appeal Board. Decisions of the ITC are reviewable by the Court of Appeals for the Federal Circuit and from there the US Supreme Court.
Okay, so you have an individual inventor with a patent. An infringing product is sold nationwide. The alleged injury took place all over the country, including the Eastern District of Texas. Back to square one.
A corporation must sue in a location where that corporation has a significant nexus.
Now the courts spend the next couple of decades hashing out exactly what 'significant nexus' means. Also you get a challenge to the constitutionality of the law because you distinguished between individuals and corporations. In NAACP v. Button the Supreme Court held that litigation by corporate entities falls under the First Amendment right to petition the government for a redress of grievances ("freedom of expression...includes the right to join together for purposes of obtaining judicial redress"). In Citizens United v. Federal Election Commission the Court held that the First Amendment protects the rights of individuals even when they act together in a corporate form. Put those together and you have a tough argument to make.
The Patent and Copyright clause uses a parallel sentence structure that suggests there is little difference in the scope of constitutional authority between copyright and patent. This has lead, for example, to the Supreme Court creating an action for indirect copyright infringement by analogy to indirect patent infringement. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). There has been cross pollination in other areas as well.
Inventors get an entire invention to themselves, regardless of later independent development.
This is the way it is because of the statutory scheme. The statute could easily allow for a general defense of independent creation, but it wasn't written that way. Consider 35 USC 273, which gives a limited defense of independent creation and use in certain circumstances.
You'd sacrifice a just result for a mere cost savings -- not even a saving of tax dollars, really, but to save the money of the parties themselves
Such sacrifices are made in the law all the time. And it would save tax dollars, since litigation costs taxpayer money (albeit not much; the federal judiciary is not very expensive).
The other route is simply to publish your invention prominently enough that a patent examiner is likely to find it. This was the purpose of IBM's Technical Disclosure Bulletin.
A plain reading shows that Congress can only grant a patent to an inventor, not just any person who happens to file for the patent
The first to file system still requires that the applicant actually invented the claimed subject matter. It would not repeal 35 USC 102(f). It's about how the Patent Office prioritizes between multiple independent inventors, not who is allowed to file. There is no constitutional issue.
It's also unconstitutional, and contrary to the overall goals of the patent system. The US Constitution requires that patents only be granted to inventors, as opposed to johnny-come-latelies.
First to file doesn't mean that a non-inventor can file for a patent. The bill wouldn't repeal the 35 USC 102(f) requirement that the applicant actually invent the claimed invention. First to file just means that, if there are multiple independent inventors, the first one to file wins rather than the one who invented it first. There will likely be a constitutional challenge, but it's unlikely that the courts would find it unconstitutional. There are two reasons: first, the Constitution doesn't specify 'first inventor.' Second the copyright laws, which are derived from the same clause of the Constitution, allow for independent creation. This suggests that Congress has the constitutional authority to grant a temporary monopoly to one or more inventors (or authors) as it chooses, so long as they are, in fact, inventors or authors.
Granting rewards to people who can more swiftly negotiate bureaucracy doesn't encourage actual inventors at all.
First, in the vast majority of cases there is no inventorship dispute. The result would be the same under first to file or first to invent. Second, proving priority under a first to invent system is difficult, time-consuming, and expensive. First to file is a simpler system. And again, the people filing under a first to file system are still "actual inventors."
No, this doesn't change the fact that the applicant must still have actually invented the claimed invention. 35 USC 102(f): "A person shall be entitled to a patent unless he did not himself invent the subject matter sought to be patented."
Remember, every country in the world other than the US uses a first to file rather than a first to invent system. There are advantages and disadvantages to both systems, but the disadvantages are not anything like that. First to file does not enable theft or ripping off of inventions.
The courts have been tightening the rules on venue for a while now. East Texas in particular is starting to lose cases. Example 1. Example 2. Example 3.
Not sure if having to file where you live or possibly where the corporate HQ is would help....
In cases with large corporations with offices all around the country there may be more important factors than the location of the corporate HQ. Consider a company based in Washington state with a research office and production facility in Florida. Sure, corporate HQ is in Washington, but all of the witnesses (e.g. the inventors) are in Florida. Important documents related to production costs and the like are in Florida. So in that case perhaps Florida makes more sense as the venue rather than forcing all of the witnesses to fly to Washington. Venue is complicated, and it can be hard to make the rules flexible enough without being so overinclusive that places like East Texas become available.
First to file means the first inventor to file. Priority is based on filing rather than date of inventorship, but the applicant still has to have invented the claimed invention. The law wouldn't change 35 USC 102(f): "A person shall be entitled to a patent unless he did not himself invent the subject matter sought to be patented."
First to file is the way things work in the entire rest of the world. The US is the only country that uses a first to invent system. The Philippines did until several years ago, but now we're the only ones. I'm not citing that fact to argue that we should switch, only that switching is unlikely to cause the sky to fall.
From the summary: "A bill to reduce the likelihood of massive damage awards in patent disputes took a step forward with approval by the Senate Judiciary Committee. The committee voted 15-0 to back the legislation that would give judges a major role in determining how important a particular patent is to a product, so that infringing minor patents would not lead to huge damages."
Judges already have a significant role in the damages determination. First, in some cases the right to a jury trial is waived, so the judge is solely responsible for the damages calculation. Second, even in jury trial cases, the judge determines what evidence the jury sees. Generally evidence on damages is presented by dueling expert witnesses from each side, and the judge may exclude a witness or part of the witness's testimony on various grounds. Third, the judge may modify the jury's award of damages in certain circumstances. Fourth, certain parts of the damages calculation are always performed by the judge anyway.
Then there's this: "determining how important a particular patent is to a product, so that infringing minor patents would not lead to huge damages." That's not a new idea. One of the main ways damages in patent cases are determined is via the Georgia Pacific factors, named after the case where they were set down. Four of the factors are these:
"The utility and advantages of the patent property over the old modes or devices, if any, that had been used for working out similar results. The nature of the patented invention; the character of the commercial embodiment of it as owned and produced by the licensor; and the benefits to those who have used the invention. The portion of the profit or of the selling price that may be customary in the particular business or in comparable businesses to allow for the use of the invention or analogous inventions. The portion of the realizable profit that should be credited to the invention as distinguished from non-patented elements, the manufacturing process, business risks, or significant features or improvements added by the infringer."
As you can see, the law already takes into account how important a patent is to a given product. So it's not clear how much this reform would actually change things. What it almost certainly will do, however, is lead to a spike in litigation and appeals as parties try to figure out exactly what the law means.
Any time the law changes, uncertainty is introduced. In the presence of uncertainty, parties find it hard to come to settlement agreements. So they ask the courts to figure things out. That takes time and costs money, which is something that large, established players have and that small, newer players do not. Legal reform efforts are fraught with unintended consequences.
When the discussion is specifically about what this man has done for the copyright industries, mentioning his leading role in the Grokster and Youtube cases is far more important than what he's done for some beer company
When my point is that it's inaccurate to say that he is an "RIAA lawyer" because he's represented dozens of different clients in a wide range of circumstances, then it's extremely relevant that he has represented, for example, a beer company in a dispute about restrictive labeling laws. The non-copyright cases outstrip the copyright cases by orders of magnitude. Adding one copyright case to the mix changes nothing. You are grasping at straws and picking at nits.
As for Viacom v. Google, copyright cases don't get much more high-profile than this.
You accused me of an error of omission when I was specifically listing his Supreme Court cases. Unlike MGM v. Grokster, Viacom v. Google is not a Supreme Court case. Therefore it is no error of omission to leave it out of such a list, no matter how high-profile or large you may think it is.
Obviously I was not going to recount every single case he was involved in, so omitting one case is not an error, particularly when it does not disprove anything I said.
And if you want to talk about errors of omission, how about your failure to mention that Verrilli was named an Associate Deputy Attorney General back in February of 2009? Verrilli hasn't been involved in that suit for almost two years, and hadn't been involved for almost a year and a half when the district court ruled on the case in June of 2010.
Furthermore, I only gave examples of his Supreme Court cases. The Viacom v. Google case has not even been ruled on by a circuit court of appeals, much less the Supreme Court. It is, at this point, not a particularly important copyright case, despite your erroneous claim to the contrary.
Correct me if I'm wrong, but don't attorneys have a degree of selection in the cases they can represent?
In theory, yes, but generally speaking attorneys (particular partner-level attorneys, which Verrilli was at Jenner & Block) will take any client that they can ethically represent and who will pay their bills. By "ethically represent" I mean that the client is not ruled out due to a conflict of interest or other ethical bar, not that the attorney personally agrees with their case.
This is especially true when the attorney works at a large law firm that can always take more business, and Jenner & Block is such a firm. A sole practitioner can theoretically fill up his or her calendar to the point that he or she has to turn down clients, but this is rare.
Like it or not, the position of Solicitor General IS a political position, and comes with it's own political baggage built-in
That may be true, but the political baggage comes more from the appointer than the appointee. If you want to know the kinds of positions Verrilli will take as SG, look at the president and his policies.
we REALLY need to be worried about his positions on the general public's First Amendment right's to free speech, assembly, and organized dissent.
Then you'll be happy to know that he worked for the American Library Association in conjunction with the American Civil Liberties Union to overturn the Communications Decency Act. Reno v. ACLU, 521 U.S. 844 (1997).
That said, trying to read anything into the particular clients that an attorney has represented in the past is pointless. The Solicitor General is an attorney with the government for a client, and he or she takes his or her cues from the President. If the SG is doing his or her job, then he or she will argue the government's position regardless of his or her personal views or past clients.
apparently, he just got everything from Wikipedia, which fails to mention what I said above).
No, I got it from searching Supreme Court cases for which Verrelli represented a party, and I also pulled up his Jenner & Block profile on the Wayback Machine.
You claim that my facts were "a bit wrong." What, exactly, did I get wrong?
Not particularly. As you can see from the Wayback Machine copy of his Jenner & Block profile, "Mr. Verrilli concentrates his practice on Supreme Court and appellate litigation, telecommunications, and First Amendment and media litigation....Mr. Verrilli has argued many cases in the federal courts of appeals and in state supreme courts on a range of issues, including cases involving copyright, constitutional law (involving the First Amendment, the Takings Clause and the Bill of Attainder Clause), statutory construction, administrative law and criminal law....He is an adjunct professor of constitutional law at the Georgetown University Law Center, where he has taught First Amendment law for the past 14 years."
Copyright and media litigation were only a small part of a wide-ranging practice.
Verrilli was not, as the summary implies, a lawyer who worked exclusively for the RIAA. Verrilli worked for Jenner & Block, one of the larger law firms in the US. The recording studios were one client of many, and it does not appear that he had a habit of representing studios. Judging by his significant Supreme Court experience, Verrilli represented a wide variety of clients, including indigent criminal defendants, a federal employee who alleged he was discriminated against because of his age, insurance agent trade groups, wireless telecommunications companies (against the FCC), Coors Brewing Company (arguing against a state law forbidding the display of alcohol content on beer), citizens alleging violations of their voting rights, and the American Libraries Association (arguing against the Communications Decency Act of 1996) .
That's a broad set of clients, including a lot of litigation against the government, which is what the Solicitor General handles. It is absurd to impute an agenda to an attorney based on one case, and Verrilli seems qualified for the job of Solicitor General.
While a lot of your post is correct, you are mistaken about some of your claims.
Nope. Read on to see why. In fact, some of your alleged corrections are themselves incomplete.
Inter vivo giving (gifts to family members during a giver's life) is limited to $13,000 a year tax free.
It should be clarified that that's a $13,000 per year per recipient limit, not per donor. And if you're married it goes up to $26,000 per year per recipient. And there's a special exemption for tuition paid directly to an educational institution, so that can easily be tens of thousands of dollars per year extra (e.g. don't give $40,000 to your child, instead pay $40,000 in tuition for your grandchildren, which is really the same thing, since money is fungible). You can do a similar trick by paying for another person's medical insurance, including long-term care insurance, which can soak up a lot of money.
See? There are all kinds of fun loopholes. Inter vivos transfers are definitely a significant tool for reducing estate tax liability.
Trusts...don't bypass the [estate] tax
First, it's a tax on inheritance or the estate. It's not a tax on dying or death, so calling it the 'death tax' is simply incorrect. Second, a properly arranged trust can indeed bypass the estate tax, though recent changes in the law have somewhat hampered the 'traditional' estate planning tools (e.g., GRATs, IDITs).
Quit with the hypotheticals, the files were some test files that never shipped on any phone. The damages would be next to nil if these ever went to court.
First: we don't know if these are the only potentially infringing files out there. These are just the only ones brought to public attention so far.
Second: they don't have to ship to be fundamental to Android's success. Oracle could argue that, without these unit tests, Android would have been buggier and later to market.
Slashdot Mirror
The courts took a while to come around to it, but at this point they agree with you. Simply slapping "on a computer" or "on the internet" onto a known algorithm, business method, etc is likely to be considered obvious. For example: "Because Internet and Web browser technologies had become commonplace for communicating and displaying information, it would have been obvious to adapt existing processes to incorporate them for those functions." Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318 (Fed. Cir. 2008). Similarly: "Accommodating a prior art mechanical device that accomplishes that goal to modern electronics would have been reasonably obvious to one of ordinary skill in designing children's learning devices. Applying modern electronics to older mechanical devices has been commonplace in recent years." Leapfrog Enterprises, Inc. v. Fisher-Price, Inc., 485 F. 3d 1157 (Fed.Cir. 2007).
How difficult is that?
The difficulty of implementing the algorithm once it is described has very little to do with patentability. In fact, if the patent didn't give a person of ordinary skill in the art sufficient information to implement the algorithm without undue experimentation then the patent would be invalid for lack of enablement. As a non-software example, consider patented compositions of matter such as metal alloys. Many alloys are very simple to create in practice; the difficult is coming up with the particular mix of elements in the first place.
However, if the algorithm is known in the prior art, then adding "on a computer" to it is now (properly, in my opinion) considered to be obvious in most cases.
I'm not commenting on whether the claimed invention is obvious. I haven't done much kernel hacking; I'll take other commenters at their word that the method would have been obvious to a kernel programmer of ordinary skill. That's fine. My point is that the invention was not reduced to mathematics, as no amount of mathematics will conjure up a physical computer system. And in fact this is the case for essentially all software patents.
I'm not arguing what should or should not be. I'm explaining what is. The patent was not reduced to math because a physical computer system is an element of the claim. And the Curry Howard Correspondence does not make computer implemented inventions unpatentable. These are facts, for better or worse.
Regarding the general purpose nature of (most) computers: "A general purpose computer, or microprocessor, programmed to carry out an algorithm creates 'a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.'" WMS Gaming, Inc. v. International Game Technology, 184 F. 3d 1339, 1348 (Fed.Cir. 1999) (quoting In re Alappat, 33 F.3d 1526, 1545 (Fed.Cir. 1994) (en banc)).
So, yes, general purpose machine plus software equals a patentable special purpose computer, subject to all the other requirements of patentability. That's the law right now, whether you agree or disagree with whether it ought to be so.
I am an attorney & patent agent and I hold multiple degrees in mathematics and computer science, so I feel fairly competent to speak on this issue.
The claims require a physical implementation (e.g. "An information storage and retrieval system"). No amount of math will produce such a system out of the aether. Nor does thinking about the math or the formulas on pen & paper infringe the patent. The specification makes it clear that "information storage and retrieval system" refers to a computer system. Thus, the patent was not actually reduced to pure mathematics.
The nonpatentability of mathematics refers literally to patenting a formula or algorithm without any useful application, just as chemical elements cannot be patented but a mechanical device made entirely of a single element could be. A claim to a bare formula would be invalid for lack of utility as well as lack of patentable subject matter. Consequently, the Curry-Howard Correspondence has no effect on the patentability of computer-implemented inventions.
In fact we should enact a substantial annual fee to maintain patent protection.
It's every 3.5 years (with a 6 month grace period) instead of annual, but the US already has patent maintenance fees. For regular patentees the maintenance fee schedule is $980 / $2480 / $4110. So over the life of a patent that's $7570, on top of the $330 filing fee, $540 search fee, $220 examination fee, and $1510 issue fee for a total of $10,170. For small entities (i.e. non-profits, individuals, and companies with = 500 employees) it's basically half that. Then there are more fees for long applications, complicated applications, appeals, time extensions, surcharges, and late fees.
Maybe that doesn't seem like much, but bear in mind that most any patent worth having will also be filed in other countries. If you file everywhere with a patent system it's roughly $200,000 in fees. Over the life of the patents it'll be something like $2 million in maintenance fees and annuities. Even if you stick to major markets like the US, Canada, Europe, Australia, and Japan the costs get very high, very quickly.
And that's all before you start paying lawyers and translators (a lot of countries want your applications translated into one of their official languages, and those translations can be very expensive because a patent application is both a legal and scientific document). A very rough guide is that the attorneys and translators will cost you 2-3 times what the government will, at a minimum. Oh, and this process will take about 3-5 years, so a lot of these fees (including what your attorneys charge) will go up during that time.
So, bearing all that in mind, I think that for large entities at least there's still room for growth in fees, but the international context has to be considered. If everybody starts raising fees substantially then the costs will quickly become unduly burdensome. Any increases have to be judged very carefully, which is why the PTO is currently favoring a "pay more, get more" approach (e.g. for another $4000 you can get prioritized examination) rather than raising costs across the board.
If Microsoft wins this case, its purported 235 patents that Linux supposedly infringes upon (they have yet to list them after all these years because they are likely piss-weak) are further weakened?
Microsoft is a defendant in about 50 patent infringement suits at any given time. They are the target of far, far more patent infringement suits than they file. It's in their strategic interest to make it somewhat easier to invalidate patents.
This case also demonstrates the lengths to which Microsoft is willing to go to defend an infringement case. There was a full jury trial, a reexamination at the Patent Office, a (denied) request for a second reexamination, an appeal of the injunction to the Federal Circuit, an appeal of the case itself to the Federal Circuit, and now this appeal to the Supreme Court. If the Supreme Court agrees with Microsoft, the case will go back to the trial court for a new trial, with, potentially, another round of appeals if Microsoft loses again.
I can not lay my hand on any part of the Union Constitution which gives the Executive branch power to act like the Judicial branch. Perhaps I don't understand the "ITC"'s location within the government, but it appears to me to be an unconstitutional organization.
The ITC is an Article I court or "legislative court," so-called because they are created by an act of Congress. The Supreme Court has repeatedly upheld the constitutionality of Article I courts, at least when certain constraints are in place (e.g. their rulings must be reviewable by a regular Article III court). "[I]t long has been settled that Article 3 does not express the full authority of Congress to create courts, and that other articles invest Congress with powers in the exertion of which it may create inferior courts and clothe them with functions deemed essential or helpful in carrying those powers into execution." Ex parte Bakelite Corp., 279 U.S. 438 (1929). "Article III does not confer on litigants an absolute right to the plenary consideration of every nature of claim by an Article III court." Commodity Futures Trading Com'n v. Schor, 478 U.S. 833 (1986). Assigning limited adjudicatory functions to Article I courts is "consistent with Art. III, so long as the essential attributes of the judicial power are retained in the Art. III court, and so long as Congress' adjustment of the traditional manner of adjudication can be sufficiently linked to its legislative power to define substantive rights." Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 US 50 (1982).
There are tons of Article I courts, including the ITC, Bankruptcy Courts, Tax Courts, courts-martial, the Patent Office's Board of Patent Appeals and Interferences and Trademark Trial and Appeal Board. Decisions of the ITC are reviewable by the Court of Appeals for the Federal Circuit and from there the US Supreme Court.
the location where the alleged injury took place
Okay, so you have an individual inventor with a patent. An infringing product is sold nationwide. The alleged injury took place all over the country, including the Eastern District of Texas. Back to square one.
A corporation must sue in a location where that corporation has a significant nexus.
Now the courts spend the next couple of decades hashing out exactly what 'significant nexus' means. Also you get a challenge to the constitutionality of the law because you distinguished between individuals and corporations. In NAACP v. Button the Supreme Court held that litigation by corporate entities falls under the First Amendment right to petition the government for a redress of grievances ("freedom of expression...includes the right to join together for purposes of obtaining judicial redress"). In Citizens United v. Federal Election Commission the Court held that the First Amendment protects the rights of individuals even when they act together in a corporate form. Put those together and you have a tough argument to make.
By authors, as opposed to inventors
The Patent and Copyright clause uses a parallel sentence structure that suggests there is little difference in the scope of constitutional authority between copyright and patent. This has lead, for example, to the Supreme Court creating an action for indirect copyright infringement by analogy to indirect patent infringement. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). There has been cross pollination in other areas as well.
Inventors get an entire invention to themselves, regardless of later independent development.
This is the way it is because of the statutory scheme. The statute could easily allow for a general defense of independent creation, but it wasn't written that way. Consider 35 USC 273, which gives a limited defense of independent creation and use in certain circumstances.
You'd sacrifice a just result for a mere cost savings -- not even a saving of tax dollars, really, but to save the money of the parties themselves
Such sacrifices are made in the law all the time. And it would save tax dollars, since litigation costs taxpayer money (albeit not much; the federal judiciary is not very expensive).
There needs to be some kind of filing that will block other patents but not grant exclusivity, which is much less expensive to file.
There is. It's called a statutory invention registration. Here's the Wikipedia article.
The other route is simply to publish your invention prominently enough that a patent examiner is likely to find it. This was the purpose of IBM's Technical Disclosure Bulletin.
A plain reading shows that Congress can only grant a patent to an inventor, not just any person who happens to file for the patent
The first to file system still requires that the applicant actually invented the claimed subject matter. It would not repeal 35 USC 102(f). It's about how the Patent Office prioritizes between multiple independent inventors, not who is allowed to file. There is no constitutional issue.
It's also unconstitutional, and contrary to the overall goals of the patent system. The US Constitution requires that patents only be granted to inventors, as opposed to johnny-come-latelies.
First to file doesn't mean that a non-inventor can file for a patent. The bill wouldn't repeal the 35 USC 102(f) requirement that the applicant actually invent the claimed invention. First to file just means that, if there are multiple independent inventors, the first one to file wins rather than the one who invented it first. There will likely be a constitutional challenge, but it's unlikely that the courts would find it unconstitutional. There are two reasons: first, the Constitution doesn't specify 'first inventor.' Second the copyright laws, which are derived from the same clause of the Constitution, allow for independent creation. This suggests that Congress has the constitutional authority to grant a temporary monopoly to one or more inventors (or authors) as it chooses, so long as they are, in fact, inventors or authors.
Granting rewards to people who can more swiftly negotiate bureaucracy doesn't encourage actual inventors at all.
First, in the vast majority of cases there is no inventorship dispute. The result would be the same under first to file or first to invent. Second, proving priority under a first to invent system is difficult, time-consuming, and expensive. First to file is a simpler system. And again, the people filing under a first to file system are still "actual inventors."
No, this doesn't change the fact that the applicant must still have actually invented the claimed invention. 35 USC 102(f): "A person shall be entitled to a patent unless he did not himself invent the subject matter sought to be patented."
Remember, every country in the world other than the US uses a first to file rather than a first to invent system. There are advantages and disadvantages to both systems, but the disadvantages are not anything like that. First to file does not enable theft or ripping off of inventions.
The courts have been tightening the rules on venue for a while now. East Texas in particular is starting to lose cases. Example 1. Example 2. Example 3.
Not sure if having to file where you live or possibly where the corporate HQ is would help....
In cases with large corporations with offices all around the country there may be more important factors than the location of the corporate HQ. Consider a company based in Washington state with a research office and production facility in Florida. Sure, corporate HQ is in Washington, but all of the witnesses (e.g. the inventors) are in Florida. Important documents related to production costs and the like are in Florida. So in that case perhaps Florida makes more sense as the venue rather than forcing all of the witnesses to fly to Washington. Venue is complicated, and it can be hard to make the rules flexible enough without being so overinclusive that places like East Texas become available.
First to file means the first inventor to file. Priority is based on filing rather than date of inventorship, but the applicant still has to have invented the claimed invention. The law wouldn't change 35 USC 102(f): "A person shall be entitled to a patent unless he did not himself invent the subject matter sought to be patented."
First to file is the way things work in the entire rest of the world. The US is the only country that uses a first to invent system. The Philippines did until several years ago, but now we're the only ones. I'm not citing that fact to argue that we should switch, only that switching is unlikely to cause the sky to fall.
From the summary: "A bill to reduce the likelihood of massive damage awards in patent disputes took a step forward with approval by the Senate Judiciary Committee. The committee voted 15-0 to back the legislation that would give judges a major role in determining how important a particular patent is to a product, so that infringing minor patents would not lead to huge damages."
Judges already have a significant role in the damages determination. First, in some cases the right to a jury trial is waived, so the judge is solely responsible for the damages calculation. Second, even in jury trial cases, the judge determines what evidence the jury sees. Generally evidence on damages is presented by dueling expert witnesses from each side, and the judge may exclude a witness or part of the witness's testimony on various grounds. Third, the judge may modify the jury's award of damages in certain circumstances. Fourth, certain parts of the damages calculation are always performed by the judge anyway.
Then there's this: "determining how important a particular patent is to a product, so that infringing minor patents would not lead to huge damages." That's not a new idea. One of the main ways damages in patent cases are determined is via the Georgia Pacific factors, named after the case where they were set down. Four of the factors are these:
"The utility and advantages of the patent property over the old modes or devices, if any, that had been used for working out similar results.
The nature of the patented invention; the character of the commercial embodiment of it as owned and produced by the licensor; and the benefits to those who have used the invention.
The portion of the profit or of the selling price that may be customary in the particular business or in comparable businesses to allow for the use of the invention or analogous inventions.
The portion of the realizable profit that should be credited to the invention as distinguished from non-patented elements, the manufacturing process, business risks, or significant features or improvements added by the infringer."
As you can see, the law already takes into account how important a patent is to a given product. So it's not clear how much this reform would actually change things. What it almost certainly will do, however, is lead to a spike in litigation and appeals as parties try to figure out exactly what the law means.
Any time the law changes, uncertainty is introduced. In the presence of uncertainty, parties find it hard to come to settlement agreements. So they ask the courts to figure things out. That takes time and costs money, which is something that large, established players have and that small, newer players do not. Legal reform efforts are fraught with unintended consequences.
When the discussion is specifically about what this man has done for the copyright industries, mentioning his leading role in the Grokster and Youtube cases is far more important than what he's done for some beer company
When my point is that it's inaccurate to say that he is an "RIAA lawyer" because he's represented dozens of different clients in a wide range of circumstances, then it's extremely relevant that he has represented, for example, a beer company in a dispute about restrictive labeling laws. The non-copyright cases outstrip the copyright cases by orders of magnitude. Adding one copyright case to the mix changes nothing. You are grasping at straws and picking at nits.
As for Viacom v. Google, copyright cases don't get much more high-profile than this.
You accused me of an error of omission when I was specifically listing his Supreme Court cases. Unlike MGM v. Grokster, Viacom v. Google is not a Supreme Court case. Therefore it is no error of omission to leave it out of such a list, no matter how high-profile or large you may think it is.
Error of omission, as already pointed out.
Obviously I was not going to recount every single case he was involved in, so omitting one case is not an error, particularly when it does not disprove anything I said.
And if you want to talk about errors of omission, how about your failure to mention that Verrilli was named an Associate Deputy Attorney General back in February of 2009? Verrilli hasn't been involved in that suit for almost two years, and hadn't been involved for almost a year and a half when the district court ruled on the case in June of 2010.
Furthermore, I only gave examples of his Supreme Court cases. The Viacom v. Google case has not even been ruled on by a circuit court of appeals, much less the Supreme Court. It is, at this point, not a particularly important copyright case, despite your erroneous claim to the contrary.
Correct me if I'm wrong, but don't attorneys have a degree of selection in the cases they can represent?
In theory, yes, but generally speaking attorneys (particular partner-level attorneys, which Verrilli was at Jenner & Block) will take any client that they can ethically represent and who will pay their bills. By "ethically represent" I mean that the client is not ruled out due to a conflict of interest or other ethical bar, not that the attorney personally agrees with their case.
This is especially true when the attorney works at a large law firm that can always take more business, and Jenner & Block is such a firm. A sole practitioner can theoretically fill up his or her calendar to the point that he or she has to turn down clients, but this is rare.
Like it or not, the position of Solicitor General IS a political position, and comes with it's own political baggage built-in
That may be true, but the political baggage comes more from the appointer than the appointee. If you want to know the kinds of positions Verrilli will take as SG, look at the president and his policies.
we REALLY need to be worried about his positions on the general public's First Amendment right's to free speech, assembly, and organized dissent.
Then you'll be happy to know that he worked for the American Library Association in conjunction with the American Civil Liberties Union to overturn the Communications Decency Act. Reno v. ACLU, 521 U.S. 844 (1997).
That said, trying to read anything into the particular clients that an attorney has represented in the past is pointless. The Solicitor General is an attorney with the government for a client, and he or she takes his or her cues from the President. If the SG is doing his or her job, then he or she will argue the government's position regardless of his or her personal views or past clients.
apparently, he just got everything from Wikipedia, which fails to mention what I said above).
No, I got it from searching Supreme Court cases for which Verrelli represented a party, and I also pulled up his Jenner & Block profile on the Wayback Machine.
You claim that my facts were "a bit wrong." What, exactly, did I get wrong?
His specialty is copyright law.
Not particularly. As you can see from the Wayback Machine copy of his Jenner & Block profile, "Mr. Verrilli concentrates his practice on Supreme Court and appellate litigation, telecommunications, and First Amendment and media litigation....Mr. Verrilli has argued many cases in the federal courts of appeals and in state supreme courts on a range of issues, including cases involving copyright, constitutional law (involving the First Amendment, the Takings Clause and the Bill of Attainder Clause), statutory construction, administrative law and criminal law....He is an adjunct professor of constitutional law at the Georgetown University Law Center, where he has taught First Amendment law for the past 14 years."
Copyright and media litigation were only a small part of a wide-ranging practice.
Verrilli was not, as the summary implies, a lawyer who worked exclusively for the RIAA. Verrilli worked for Jenner & Block, one of the larger law firms in the US. The recording studios were one client of many, and it does not appear that he had a habit of representing studios. Judging by his significant Supreme Court experience, Verrilli represented a wide variety of clients, including indigent criminal defendants, a federal employee who alleged he was discriminated against because of his age, insurance agent trade groups, wireless telecommunications companies (against the FCC), Coors Brewing Company (arguing against a state law forbidding the display of alcohol content on beer), citizens alleging violations of their voting rights, and the American Libraries Association (arguing against the Communications Decency Act of 1996) .
That's a broad set of clients, including a lot of litigation against the government, which is what the Solicitor General handles. It is absurd to impute an agenda to an attorney based on one case, and Verrilli seems qualified for the job of Solicitor General.
While a lot of your post is correct, you are mistaken about some of your claims.
Nope. Read on to see why. In fact, some of your alleged corrections are themselves incomplete.
Inter vivo giving (gifts to family members during a giver's life) is limited to $13,000 a year tax free.
It should be clarified that that's a $13,000 per year per recipient limit, not per donor. And if you're married it goes up to $26,000 per year per recipient. And there's a special exemption for tuition paid directly to an educational institution, so that can easily be tens of thousands of dollars per year extra (e.g. don't give $40,000 to your child, instead pay $40,000 in tuition for your grandchildren, which is really the same thing, since money is fungible). You can do a similar trick by paying for another person's medical insurance, including long-term care insurance, which can soak up a lot of money.
See? There are all kinds of fun loopholes. Inter vivos transfers are definitely a significant tool for reducing estate tax liability.
Trusts...don't bypass the [estate] tax
First, it's a tax on inheritance or the estate. It's not a tax on dying or death, so calling it the 'death tax' is simply incorrect. Second, a properly arranged trust can indeed bypass the estate tax, though recent changes in the law have somewhat hampered the 'traditional' estate planning tools (e.g., GRATs, IDITs).
Quit with the hypotheticals, the files were some test files that never shipped on any phone. The damages would be next to nil if these ever went to court.
First: we don't know if these are the only potentially infringing files out there. These are just the only ones brought to public attention so far.
Second: they don't have to ship to be fundamental to Android's success. Oracle could argue that, without these unit tests, Android would have been buggier and later to market.