How will this narrow patent law? I don't think that MS is arguing against the patent system. If anything, MS is arguing against this one particular patent. Whatever the outcome, it will have no effect on the patent system, or MS's future behavior.
That isn't true at all. The issue at the Supreme Court is not this particular patent. The issue is what the burden of proof should be when attempting to prove a patent invalid, particularly when an alleged infringer brings evidence not considered by the Patent Office. The Supreme Court is deciding whether this particular patent is valid or infringed, only the evidentiary question. Microsoft is most certainly arguing against the patent system in the sense that it seeks to change the status quo. If Microsoft is successful, the outcome--a precedent setting Supreme Court decision--will affect the patent system and Microsoft's future behavior.
Remember, Microsoft is involved in about 50 patent suits at any one time, almost always as a defendant. It's therefore in Microsoft's interest for it to be easier to invalidate questionable patents, and this is an interest shared by a lot of Slashdot readers. And to the extent Microsoft sues others for patent infringement, if patents are easier to invalidate then Microsoft will be more careful about which patents it sues on and which inventions it seeks to patent in the first place.
In an earlier comment on Boldrin and Levine’s 2003 lecture on patents and their effect on technology, we observed that their account of James Watt’s influence on the progress of steam technology contained factual errors which tended to exaggerate the negative consequences of Watt’s patent. We concluded that it was far from obvious that a corrected account would support Boldrin and Levine’s bold conjectures. While Boldrin and Levine’s 2008 “Against Intellectual Monopoly” begins with a new version of Watt’s story that claims to take our earlier criticisms into account, here we assess that version and conclude that it shares many of the shortcomings of the original.
The full article is available for free download via that Berkeley Electronic Press link.
The PTO is funded by user fees. The problem is that if they take in more fees than they budgeted for, the rest goes to general revenue to be spent on other things. When the economy turns downward, the PTO ends up taking in less in fees than its fixed costs (building maintenance, salaries, etc). The 'budget expansion' you're referring to is a plan to essentially refund some of the almost $1 billion in excess fees that have been taken from the PTO over the years. Part of it would make up for the current budget shortfall and part of it would be used for infrastructure improvements like IT upgrades.
You can find out all you want to know (and more!) about the PTO budget in its 2011 budget report. On page 2 you'll find "USPTO is a fully fee funded agency (with fee collections appropriated by the Congress), and does not rely on regular funding from the General Treasury."
For those of you wondering how the PTO can have budget problems when the number of patent applications is at or near record highs: the cost of examination is not fully paid for on the front end. Much of the cost is made up on the back end through maintenance fees. The problem right now has more to do with patent holders letting patents go abandoned (and thus not paying maintenance fees) than it does application rates dropping off. This is discussed in page 7 of the budget report I linked.
When I had lawyers represent me, I lost 50% of the time. When I represented myself, I've won about 7 out of 8 cases.
You realize that proves nothing, right? Those were presumably different cases, so you're comparing apples and oranges. It could well be that the cases you took pro se would've been won with a lawyer and that the 50% of cases you lost with a lawyer would've been lost pro se. It could also be you had crappy lawyers.
At times, the attorneys and judges were less familiar with the law than me, since I'm devoting myself to one area of law, and one case, while they have many.
The judges would be less familiar with the law whether you were represented or not. Were the attorneys representing your or other side? Unless they were representing you, that's only to your benefit. If they were representing you, then you had crappy attorneys.
Plus, I save $100,000 or so in legal fees.
But lose the ability to sue for malpractice if you screw up. That's a big part of why people pay for an attorney: liability shifting.
Anyway, kudos for largely succeeding when representing yourself, but let's not pretend for a moment that it's a sound strategy for most or even many people. Statistically it is a terrible idea.
As I said, this is a silly post. People rarely get everything they want from litigation, your appeals are far from exhausted, and you won the bulk of the actual case anyway. Why did this merit a post on Slashdot?
I'm an attorney, and I agree. If attorneys could rely on "professional courtesy" they wouldn't each pay thousands of dollars per year in malpractice premiums. There's no lack of legal malpractice suits, but I would say that attorney discipline, including disbarment, doesn't happen often enough. Just look at how long it took Jack Thompson to get disbarred.
This is not accurate at all. Appellate courts often review findings of fact, although they are reluctant to disturb factual findings, especially findings by a jury. To reflect this, there are different standards of review for matters of law and matters of fact. The usual standard for review of factual findings in Minnesota is the "clearly erroneous" standard. "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Minn. R. Civ. P. 52.01. But make no mistake: appellate courts can and do review evidence.
This kind of fundamental error, which was made by the poster and the 3 people who modded up the post, is why representing yourself is such a bad idea.
but if you sue a laywer the entire legal profession closes ranks and roots for the home team.
Patently untrue. Case in point: legal malpractice suits, which are common and involve a lot of money: $4 billion per year back in 1995. I assure you it's more today.
To the extent this guy got screwed it was because he tried to handle his case pro se. Just one little example of his mistakes: "The fact that I prevailed on all seven counts while representing myself in court pro-se further suggests they lacked probable cause." Whether someone is representing themselves or are represented by counsel is generally immaterial in Minnesota, as in most jurisdictions. "Pro se litigants are generally held to the same standards as attorneys." Heinsch v. Lot 27, Block 1 For's Beach, 399 N.W.2d 107, 109 (Minn. App. 1987).
Anyway, this is kind of a silly post for Slashdot. The plaintiff's appeals are not exhausted. He can make a motion for a rehearing, a rehearing en banc, and appeal to the Minnesota Supreme Court.
The settlement did not necessarily include a license. It probably did, but it's possible it did not.
Anyway, if the settlement agreement violates the LGPL then that will become apparent if Acacia sues another JBoss developer. In the event of such a suit it is likely that the terms of the settlement would be open to discovery. If the settlement doesn't contain a license, then no problem. If the settlement contains a broad license to all users and developers of JBoss, then the infringement suit will get tossed. If the settlement only offered a license to RedHat, in violation of the LGPL, then RedHat will suffer the consequences.
And of course Perens invokes the non-existent threat of the Open Source Patent Apocalypse:
Perhaps this will come as a wake-up call to an open-source community that has been historically complacent about the elephant in its living room: Patent holders can shut down open source at any time, simply by bringing claims against individual developers and small companies that can not afford to defend themselves.
Except, of course, that patent holders have never actually done so (certainly not in any significant way), despite 15 years or more of opportunity. Litigation is expensive even if the other side doesn't defend itself, and organizations like the FSF, the EFF, law clinics, and individual charity-minded patent attorneys would likely defend individual developers or small companies for a reduced fee or no fee. If the defendants put up even a modest defense, the expense to the patent holder would almost certainly outweigh the remotest possible benefit.
Perens brings up Jacobsen v. Katzer, but it's important to note that that it was the open source developer that sued for a declaration of patent invalidity as a (successful) way of getting leverage in the case. He was not sued for patent infringement, only copyright infringement. Not only that, the developer received a $100,000 settlement fee (net $68,357.62 after paying the defendant's attorney's fees because of a failed special motion to strike) and set some important precedents. Further, the other party was not a large corporation but an individual and the small company he owned. There was no particular need for legal aid in that case.
There is just no point in trying to sue individual open source developers or companies that don't have significant assets. Patentees can't use the courts to eliminate infringing open source software. New developers will step in, hosting will move to another country, and the multi-million dollar game of whack-a-mole will continue, all the while generating enormous negative PR. Non-practicing entities, which some call patent trolls, are even less likely to sue individuals or small companies. They don't make money from litigation, they make money from licensing, and you can't squeeze blood from a turnip.
So the patentees aren't going to get licensing fees from suing individual developers and small companies. What are they going to get? Customers to pay for their software instead of the open source version? I highly doubt that the open source community of developers and users would turn around and pay for software from the company that just sued them.
Patent infringement suits may be a problem for larger companies like RedHat, but such companies have the means to defend themselves.
The official announcement is still light on details, but the ban will apply to both carry-on and checked luggage and will affect "domestic and international flights in-bound to the United States." Apparently ink and toner will still be allowed on flights out-bound from the United States.
The distinction between domestic flights and out-bound international flights makes no sense to me. If someone can target a domestic flight by assembling the toner-bomb in the US, why couldn't the same person target an international flight out-bound from the US?
Furthermore, is there any evidence that a toner cartridge and printer were selected for any particular reason? Is there any reason toner cartridges make for a particularly attractive bomb container? If not, this seems worse than useless, since an attacker would simply select a different container while the screeners are busy looking for toner cartridges.
It's not like the 6 year old girl has any money to cough up to pay damages. Why are they bothering with her anyway? Does including the child on the list of defendants make it easier for them to claim from the parents?
There are various ways in which a parent may be liable for the negligence of a child, but the child's negligence must first be proved. In order to prove the child's negligence, the child must be a party to the suit. The plaintiff can then seek damages from the parent.
There may also be a separate claim of negligence on the part of the parent that is not dependent upon the negligence of the child. For example, if the child was not negligent because a reasonable child of 4 would in fact happily race her bike down a Manhattan sidewalk, then it may be argued that the parent was liable for giving the child the bike in the first place. The argument would be that a reasonable adult would not give a bike to a four year old to ride on a Manhattan sidewalk because a reasonable adult would judge that the risk of the child causing an injury is too great.
Except in patent law, there is a distinction between discovery and creation, at least in theory.
No there isn't. "The term "invention" means invention or discovery." 35 USC 100(a) (emphasis added). "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." 35 USC 101 (emphasis added).
The line is drawn at the laws of nature, physical phenomena, and abstract ideas. Diamond v. Chakrabarty, 447 U. S. 303 (1980). Note, however, that those limitations are judge-made, and are not present in the statute.
As in Chakrabarty, the isolated genes claimed here are "a nonnaturally occurring manufacture or composition of matter - a product of human ingenuity having a distinctive name, character use." Isolated, purified genes do not occur in nature, and they have a distinctive character and use separate from the naturally occurring gene (e.g. performing genetic tests, as opposed to being by cells in vivo).
First, this was a trial court ruling by a judge, not a justice. This did not create or modify precedent for other courts. In New York, unlike the rest of the US, the low-level trial courts are called Supreme Courts. What the rest of us would think of as "The Supreme Court" is called the Court of Appeals. Yes, it's very confusing.
Second, this was a ruling on a motion to dismiss, not a ruling on the merits. This only says the child may be sued, not that the child is liable, nor even that the child (as opposed to the parents) would be made to pay anything. The parents are being sued as well; this is not some spiteful attack on the child in particular.
Third, this is not surprising in the least from a legal perspective and relies upon well-settled legal principles. In general the law in the US does not recognize an absolute age limit to liability. For negligence, children are judged according to the standard of a reasonable child of that age (unless they are undertaking an adult activity such as driving a car). For a four year old, that's not saying much.
Fourth, there's nothing uniquely American about this. Several European countries have similar or even harsher rules. In France, for example, children are judged according to the same negligence standard as adults, which is much stricter than the US rule.
If there are any patents associated with IPv6, the Feds could claim Eminent Domain over them if I'm not mistaken.
That's true, but the government would have to compensate the patentee for the taking. Since this would amount to a nationwide license on a widely used protocol, the compensation could be significant. Not to say that might not be the best approach (assuming the patent couldn't be invalidated and the patentee was unwilling to offer a more reasonable license), but it would not be free.
The USPTO needs satellite offices in tech hotbeds. San Francisco/Palo Alto, Austin, etc. Bring them to Alexandria for training, but have them work collaboratively remotely.
Unfortunately it literally takes an act of Congress for the PTO to be able to do this.
The Telework Improvements Act of 2010 (aka the Telework Enhancement Act of 2010) would allow examiners to work from anywhere in the country. While the bill has passed the House and Senate it still has to go through conference committee and be signed into law. That might happen during the lame duck session or it might happen next spring. Or it might never happen, since it's not exactly the highest priority right now and politicians prefer to argue over stuff that gets headlines.
That article excerpts Against Intellectual Monopoly, which has been criticized for its numerous factual errors regarding the effect of patents on the development of the steam engine. Selgin, George and Turner, John L., Watt, Again? Boldrin and Levine Still Exaggerate the Adverse Effect of Patents on the Progress of Steam Power, 5 Rev. L. & Econ. 1101 (2009) (available for free at Berkeley Electronic Press):
Boldrin and Levine’s new telling of Watt’s story is hardly more persuasive than their original (2004) version. Although they have corrected some of their earlier errors, their account remains inaccurate and one-sided. Although, told in this fashion, Watt’s story makes for an exciting introduction to the rest of Boldrin and Levine’s book, the story’s value as a source of reliable inferences concerning the general merits and shortcomings of the patent system is open to doubt.
It's not a problem - they keep it alive for decades if need to be, by filing small enhancements to the patent before it issues.
Submarine patents are no longer a problem of any significance and haven't been for years.
And a patent does not have to be enforced to be valid - latches and waivers do not apply to patents
This is false. The doctrine of laches most certainly does apply to patents. From A.C. Aukerman Co. v. R.L. Chaides Construction Co., which was decided by the full Federal Circuit so as to set out the law clearly:
Laches is cognizable under 35 U.S.C. 282 (1988) as an equitable defense to a claim for patent infringement. Where the defense of laches is established, the patentee's claim for damages prior to suit may be barred. Two elements underlie the defense of laches: (a) the patentee's delay in bringing suit was unreasonable and inexcusable, and (b) the alleged infringer suffered material prejudice attributable to the delay. The district court should consider these factors and all of the evidence and other circumstances to determine whether equity should intercede to bar pre-filing damages. A presumption of laches arises where a patentee delays bringing suit for more than six years after the date the patentee knew or should have known of the alleged infringer's activity.
Is it me, or does the USPTO simply suck at finding prior art? I'm not saying it's their fault, I'm simply saying it's difficult for them to sift through huge amounts of data for each patent looking for the prior art that may invalidate said patent.
Another reason is that, particularly with regard to software and software-related inventions, the PTO has a hard time recruiting qualified examiners. A big reason for this is that examiners have to live in the Alexandria, VA area, which is about as far as you can get from the west coast IT industry.
I've also heard that examiners don't have the resources they need to do a proper search of the non-patent literature, but I don't have any hard data on that.
And, of course, sometimes patent applicants represent their invention one way during prosecution but then try to use it differently during litigation. For example, I believe Yahoo was sued or at least threatened for something to do with its maps website by a company that had a patent on using a computer to map...migratory birds. The claims appeared to read on Yahoo Maps, but it was quite apparent from the application as a whole that the invention was unrelated to anything Yahoo was doing. There's really not much the PTO can do about that.
Do they have to prove exact prior art, if they can prove that the differences between the prior art and the patent are obvious to a practitioner of the art?
Proving obviousness requires showing that all of the elements of the claimed invention exist in the prior art or can be shown to be within the common sense or common creativity of one having ordinary skill in the art at the time. As you might imagine, there's a lot of subjectivity to the 'common sense or common creativity' part, but there must still be some rational explanation for why elements that can't be explicitly shown in the prior art would have fallen under common sense or creativity. The bottom line is that evidence must be presented. It's not enough to just have someone stand up and say "it's obvious."
So why on earth should merely combining the words "embedded", "Linux", "wireless" and "router" make something patentable? These are not novel combinations that required a leap of creative insight, but rather extremely straightforward and obvious combinations.
In this case it appears to have been a failure of the PTO to find the relevant prior art. The burden is on the Patent Office to demonstrate that an invention claimed in an application is not patentable, and the Patent Office is often not the best at searching non-patent literature (i.e., everything that isn't a patent or patent application), especially when the NPL is also not part of a regularly published scientific journal. This leads to a lot of open source projects falling below the Patent Office radar. As you can imagine, this is particularly problematic for patents that were examined before decent search engines like Google became available.
For example, the bulk of the examination in this case occurred between October 2001 and November 2003. Google had just started to take off at that time (the IPO wasn't until August 2004).
Anyone got links to confirm / disprove this theory?
Short version: Cox was just wrong. Cisco wasn't shipping big IPv6 routers in 2004 (although they were shipping other IPv6 hardware and software), but it wasn't because of patents. It was because there was no demand from the telecommunications companies, who knew they had several years before IPv4 ran out. Furthermore, Cisco's current largest routers (the carrier grade CRS series) support IPv6 (example), yet 20 years from the publication of the main IPv6 RFC is December 2018. So Cox's theory is plainly invalidated.
Long version: The closest anything has come to a patent scare is Microsoft's 6,101,499 patent, but "After extensive review by our technical experts, Microsoft does not believe that the 499 patent includes any claims which cover RFC 2462 or RFC 2464 [i.e., IPv6]." (source). So Microsoft, about as big a software player as there is, went out of its way to clear a patent that a third party (PUBPAT) had identified as potentially related to IPv6.
Since major companies have been shipping hardware and software that implements IPv6 for years with nary a peep from anybody, laches becomes a serious issue for any potential plaintiff. Of course, all of these large companies have legal departments that have analyzed IPv6 for patent issues, as have groups like PUBPAT. It seems unlikely that they would all miss a problematic patent of any significance.
No, the hold up seems to be entirely on the infrastructural side, which is much more a problem of cost than capability. The routers and switches that make up the Internet infrastructure are extremely expensive (tens of thousands to millions). Here's one example. ISPs and long-haul fiber operators aren't going to spend untold millions of dollars on upgrading their equipment and training their staff while the old stuff still works fine and they're still making money off of it.
And to give a specific example of a well-studied off-label use of a drug:
Prochlorperazine (aka Compazine) has been used for decades to treat migraines, but it isn't approved by the FDA for this. There are lots of studies supporting this use, including randomized, double-control studies.
FDA approval for a new indication costs $12-15 million. When the marked for a drug is dominated by a cheap, low-margin generic version, there is simply no economic incentive to seek FDA approval for a new indication.
The same thing is about to happen with using ketamine to treat depression. Ketamine is cheap and long out of patent, and apparently it works wonders for depression. It is highly unlikely that any company will bother spending the money to get FDA approval for this indication.
There's a huge difference between off-label marketing and off-label use of a drug by a physician. Of course the FDA frowns on off-label marketing; the ability to market a drug for a particular use is precisely what FDA approval is for.
Whatever you're talking about is off point. And also wrong.
It's not off point at all. The parachute example is a well-known, satirical critique of evidence based medicine.
It's also not wrong. Yes, the first AIDS drug (AZT) was tested against placebo, and yes, later drugs are tested against other, existing drugs. But the presumption that Drug A is better than Drug B and Drug B was better than placebo therefore Drug A is better than placebo is not evidence-based medicine. That's the kind of intuitive assumption that evidence-based medicine proponents decry.
The point is that, ultimately, we can't base everything on randomized, placebo-controlled, double-blind trials. The line gets drawn at various places, and that's actually okay.
You are correct that where there's evidence it should be used. And where a bad therapy is used despite evidence against it, we have malpractice suits and medical board disciplinary hearings to correct it.
But evidence-based medicine is not the be all and end all of medical care, nor can it be.
And there's evidence that there's often lots of financial incentive to go through the trouble:
Botox is a special case. The company that makes 90% of the stuff has kept the process of producing it a trade secret. Therefore, it has an ongoing financial incentive to make new uses. That is not the usual route for drugs, however. Once a generic is available there usually isn't a lot of incentive to go through the time-consuming, expensive process of FDA approval for a new indication, even if there are good studies supporting it.
Further, even if that were a counter-example (which it isn't), it's hardly evidence that there is 'often' a financial incentive to go through the trouble of getting FDA approval for a new use.
What? Doctors have to be convinced to follow evidence-based medicine? What were they practicing before? And why are they against it?
You know, there's never been a randomized control trial of the effectiveness of parachutes versus placebo when jumping out of planes at high altitude. Would you care to volunteer?
Some things are just obvious or can be deduced from retrospective analysis or theoretical modeling. And some times it would be unethical or impractical to conduct a randomized control trial of a treatment (e.g., testing an AIDS drug versus placebo).
The idea that doctors are ALLOWED to prescribe drugs for off-label use horrifies me (it's off-label because there's no proof it works for the off-label condition).
No, there is often tons of proof. Off-label just means that the manufacturer hasn't gone through the (expensive, time-consuming) process of proving its effectiveness to the FDA. If the patent has expired there's often no financial incentive to go through the trouble.
As I said, inventorship can often be corrected. You are correct that errors made with deceptive intent cannot be corrected and can lead to the patent being held unenforceable due to inequitable conduct. However, most errors of inventorship are accidental, and in most cases everyone involved is under an obligation to assign the patent rights to their employer anyway, so people don't normally care all that much about whose name is on the piece of paper.
Note that unenforceability is separate from invalidity. Unenforceability applies to the entire patent, whereas invalidity is usually decided on a claim-by-claim basis.
In cases without deceptive intent, the courts and the Patent Office are usually pretty easy-going when it comes to correcting inventorship.
Another note about inventorship: in the US, patents go to inventors, not companies, although an inventor can sign a contract obligating him or her to assign his or her rights to a company. If an inventor is not under an obligation of assignment but is accidentally left off of a patent application and then added back later, the company that owns the patent may have some trouble convincing the inventor to sign over his or her rights, especially if the patent has become valuable in the meanwhile. Thus, companies have an incentive to get inventorship correct from the beginning rather than risk having to pay off an inventor after the fact.
I don't want to discount the value of the study itself. Clearly it's important to quantify how bad the problem is and try to develop solutions. But at the same time, the article and summary might give one the impression that the errors and biases involved were newly discovered by the researchers. A few examples:
The secondary marker problem (e.g. tracking cholesterol levels instead of real outcomes like deaths) Comparing new drugs only to placebo or only to drugs that aren't best-in-class or using an intentionally weak dose of the comparison drug Using meta-analysis of other studies instead of doing new research (and often doing it badly) Doing retrospective analyses like chart reviews instead of prospective studies (and often doing those badly)
To expand upon that last example: common problems with the methodology of chart review studies were investigated thoroughly by Gilbert and Lowenstein in 1996. Despite their findings and recommendations for how to do a chart review properly, things haven't improved much since.
Many doctors and researchers have been critiquing studies and warning about these problems for years. In the emergency medicine context, for example, Jerome Hoffman, a UCLA medical professor and emergency department physician, is well known as a critic of poorly designed studies in the emergency medicine literature. He has critically reviewed studies since 1977 as part of a continuing medical education program called Emergency Medical Abstracts.
So the problems are well known. The bigger issue is how to fix them.
Slashdot Mirror
How will this narrow patent law? I don't think that MS is arguing against the patent system. If anything, MS is arguing against this one particular patent. Whatever the outcome, it will have no effect on the patent system, or MS's future behavior.
That isn't true at all. The issue at the Supreme Court is not this particular patent. The issue is what the burden of proof should be when attempting to prove a patent invalid, particularly when an alleged infringer brings evidence not considered by the Patent Office. The Supreme Court is deciding whether this particular patent is valid or infringed, only the evidentiary question. Microsoft is most certainly arguing against the patent system in the sense that it seeks to change the status quo. If Microsoft is successful, the outcome--a precedent setting Supreme Court decision--will affect the patent system and Microsoft's future behavior.
Remember, Microsoft is involved in about 50 patent suits at any one time, almost always as a defendant. It's therefore in Microsoft's interest for it to be easier to invalidate questionable patents, and this is an interest shared by a lot of Slashdot readers. And to the extent Microsoft sues others for patent infringement, if patents are easier to invalidate then Microsoft will be more careful about which patents it sues on and which inventions it seeks to patent in the first place.
The book is Against Intellectual Monopoly by Boldrin and Levine, and it has been criticized for both factual and logical errors. One example is the article Watt, Again? Boldrin and Levine Still Exaggerate the Adverse Effect of Patents on the Progress of Steam Power :
The full article is available for free download via that Berkeley Electronic Press link.
The PTO is funded by user fees. The problem is that if they take in more fees than they budgeted for, the rest goes to general revenue to be spent on other things. When the economy turns downward, the PTO ends up taking in less in fees than its fixed costs (building maintenance, salaries, etc). The 'budget expansion' you're referring to is a plan to essentially refund some of the almost $1 billion in excess fees that have been taken from the PTO over the years. Part of it would make up for the current budget shortfall and part of it would be used for infrastructure improvements like IT upgrades.
You can find out all you want to know (and more!) about the PTO budget in its 2011 budget report. On page 2 you'll find "USPTO is a fully fee funded agency (with fee collections appropriated by the Congress), and does not rely on regular funding from the General Treasury."
For those of you wondering how the PTO can have budget problems when the number of patent applications is at or near record highs: the cost of examination is not fully paid for on the front end. Much of the cost is made up on the back end through maintenance fees. The problem right now has more to do with patent holders letting patents go abandoned (and thus not paying maintenance fees) than it does application rates dropping off. This is discussed in page 7 of the budget report I linked.
When I had lawyers represent me, I lost 50% of the time. When I represented myself, I've won about 7 out of 8 cases.
You realize that proves nothing, right? Those were presumably different cases, so you're comparing apples and oranges. It could well be that the cases you took pro se would've been won with a lawyer and that the 50% of cases you lost with a lawyer would've been lost pro se. It could also be you had crappy lawyers.
At times, the attorneys and judges were less familiar with the law than me, since I'm devoting myself to one area of law, and one case, while they have many.
The judges would be less familiar with the law whether you were represented or not. Were the attorneys representing your or other side? Unless they were representing you, that's only to your benefit. If they were representing you, then you had crappy attorneys.
Plus, I save $100,000 or so in legal fees.
But lose the ability to sue for malpractice if you screw up. That's a big part of why people pay for an attorney: liability shifting.
Anyway, kudos for largely succeeding when representing yourself, but let's not pretend for a moment that it's a sound strategy for most or even many people. Statistically it is a terrible idea.
As I said, this is a silly post. People rarely get everything they want from litigation, your appeals are far from exhausted, and you won the bulk of the actual case anyway. Why did this merit a post on Slashdot?
I'm an attorney, and I agree. If attorneys could rely on "professional courtesy" they wouldn't each pay thousands of dollars per year in malpractice premiums. There's no lack of legal malpractice suits, but I would say that attorney discipline, including disbarment, doesn't happen often enough. Just look at how long it took Jack Thompson to get disbarred.
This is not accurate at all. Appellate courts often review findings of fact, although they are reluctant to disturb factual findings, especially findings by a jury. To reflect this, there are different standards of review for matters of law and matters of fact. The usual standard for review of factual findings in Minnesota is the "clearly erroneous" standard. "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Minn. R. Civ. P. 52.01. But make no mistake: appellate courts can and do review evidence.
This kind of fundamental error, which was made by the poster and the 3 people who modded up the post, is why representing yourself is such a bad idea.
Patently untrue. Case in point: legal malpractice suits, which are common and involve a lot of money: $4 billion per year back in 1995. I assure you it's more today.
To the extent this guy got screwed it was because he tried to handle his case pro se. Just one little example of his mistakes: "The fact that I prevailed on all seven counts while representing myself in court pro-se further suggests they lacked probable cause." Whether someone is representing themselves or are represented by counsel is generally immaterial in Minnesota, as in most jurisdictions. "Pro se litigants are generally held to the same standards as attorneys." Heinsch v. Lot 27, Block 1 For's Beach, 399 N.W.2d 107, 109 (Minn. App. 1987).
Anyway, this is kind of a silly post for Slashdot. The plaintiff's appeals are not exhausted. He can make a motion for a rehearing, a rehearing en banc, and appeal to the Minnesota Supreme Court.
The settlement did not necessarily include a license. It probably did, but it's possible it did not.
Anyway, if the settlement agreement violates the LGPL then that will become apparent if Acacia sues another JBoss developer. In the event of such a suit it is likely that the terms of the settlement would be open to discovery. If the settlement doesn't contain a license, then no problem. If the settlement contains a broad license to all users and developers of JBoss, then the infringement suit will get tossed. If the settlement only offered a license to RedHat, in violation of the LGPL, then RedHat will suffer the consequences.
And of course Perens invokes the non-existent threat of the Open Source Patent Apocalypse:
Except, of course, that patent holders have never actually done so (certainly not in any significant way), despite 15 years or more of opportunity. Litigation is expensive even if the other side doesn't defend itself, and organizations like the FSF, the EFF, law clinics, and individual charity-minded patent attorneys would likely defend individual developers or small companies for a reduced fee or no fee. If the defendants put up even a modest defense, the expense to the patent holder would almost certainly outweigh the remotest possible benefit.
Perens brings up Jacobsen v. Katzer, but it's important to note that that it was the open source developer that sued for a declaration of patent invalidity as a (successful) way of getting leverage in the case. He was not sued for patent infringement, only copyright infringement. Not only that, the developer received a $100,000 settlement fee (net $68,357.62 after paying the defendant's attorney's fees because of a failed special motion to strike) and set some important precedents. Further, the other party was not a large corporation but an individual and the small company he owned. There was no particular need for legal aid in that case.
There is just no point in trying to sue individual open source developers or companies that don't have significant assets. Patentees can't use the courts to eliminate infringing open source software. New developers will step in, hosting will move to another country, and the multi-million dollar game of whack-a-mole will continue, all the while generating enormous negative PR. Non-practicing entities, which some call patent trolls, are even less likely to sue individuals or small companies. They don't make money from litigation, they make money from licensing, and you can't squeeze blood from a turnip.
So the patentees aren't going to get licensing fees from suing individual developers and small companies. What are they going to get? Customers to pay for their software instead of the open source version? I highly doubt that the open source community of developers and users would turn around and pay for software from the company that just sued them.
Patent infringement suits may be a problem for larger companies like RedHat, but such companies have the means to defend themselves.
The official announcement is still light on details, but the ban will apply to both carry-on and checked luggage and will affect "domestic and international flights in-bound to the United States." Apparently ink and toner will still be allowed on flights out-bound from the United States.
The distinction between domestic flights and out-bound international flights makes no sense to me. If someone can target a domestic flight by assembling the toner-bomb in the US, why couldn't the same person target an international flight out-bound from the US?
Furthermore, is there any evidence that a toner cartridge and printer were selected for any particular reason? Is there any reason toner cartridges make for a particularly attractive bomb container? If not, this seems worse than useless, since an attacker would simply select a different container while the screeners are busy looking for toner cartridges.
It's not like the 6 year old girl has any money to cough up to pay damages. Why are they bothering with her anyway? Does including the child on the list of defendants make it easier for them to claim from the parents?
There are various ways in which a parent may be liable for the negligence of a child, but the child's negligence must first be proved. In order to prove the child's negligence, the child must be a party to the suit. The plaintiff can then seek damages from the parent.
There may also be a separate claim of negligence on the part of the parent that is not dependent upon the negligence of the child. For example, if the child was not negligent because a reasonable child of 4 would in fact happily race her bike down a Manhattan sidewalk, then it may be argued that the parent was liable for giving the child the bike in the first place. The argument would be that a reasonable adult would not give a bike to a four year old to ride on a Manhattan sidewalk because a reasonable adult would judge that the risk of the child causing an injury is too great.
Except in patent law, there is a distinction between discovery and creation, at least in theory.
No there isn't. "The term "invention" means invention or discovery." 35 USC 100(a) (emphasis added). "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." 35 USC 101 (emphasis added).
The line is drawn at the laws of nature, physical phenomena, and abstract ideas. Diamond v. Chakrabarty, 447 U. S. 303 (1980). Note, however, that those limitations are judge-made, and are not present in the statute.
As in Chakrabarty, the isolated genes claimed here are "a nonnaturally occurring manufacture or composition of matter - a product of human ingenuity having a distinctive name, character use." Isolated, purified genes do not occur in nature, and they have a distinctive character and use separate from the naturally occurring gene (e.g. performing genetic tests, as opposed to being by cells in vivo).
First, this was a trial court ruling by a judge, not a justice. This did not create or modify precedent for other courts. In New York, unlike the rest of the US, the low-level trial courts are called Supreme Courts. What the rest of us would think of as "The Supreme Court" is called the Court of Appeals. Yes, it's very confusing.
Second, this was a ruling on a motion to dismiss, not a ruling on the merits. This only says the child may be sued, not that the child is liable, nor even that the child (as opposed to the parents) would be made to pay anything. The parents are being sued as well; this is not some spiteful attack on the child in particular.
Third, this is not surprising in the least from a legal perspective and relies upon well-settled legal principles. In general the law in the US does not recognize an absolute age limit to liability. For negligence, children are judged according to the standard of a reasonable child of that age (unless they are undertaking an adult activity such as driving a car). For a four year old, that's not saying much.
Fourth, there's nothing uniquely American about this. Several European countries have similar or even harsher rules. In France, for example, children are judged according to the same negligence standard as adults, which is much stricter than the US rule.
If there are any patents associated with IPv6, the Feds could claim Eminent Domain over them if I'm not mistaken.
That's true, but the government would have to compensate the patentee for the taking. Since this would amount to a nationwide license on a widely used protocol, the compensation could be significant. Not to say that might not be the best approach (assuming the patent couldn't be invalidated and the patentee was unwilling to offer a more reasonable license), but it would not be free.
The USPTO needs satellite offices in tech hotbeds. San Francisco/Palo Alto, Austin, etc. Bring them to Alexandria for training, but have them work collaboratively remotely.
Unfortunately it literally takes an act of Congress for the PTO to be able to do this.
The Telework Improvements Act of 2010 (aka the Telework Enhancement Act of 2010) would allow examiners to work from anywhere in the country. While the bill has passed the House and Senate it still has to go through conference committee and be signed into law. That might happen during the lame duck session or it might happen next spring. Or it might never happen, since it's not exactly the highest priority right now and politicians prefer to argue over stuff that gets headlines.
That article excerpts Against Intellectual Monopoly, which has been criticized for its numerous factual errors regarding the effect of patents on the development of the steam engine. Selgin, George and Turner, John L., Watt, Again? Boldrin and Levine Still Exaggerate the Adverse Effect of Patents on the Progress of Steam Power, 5 Rev. L. & Econ. 1101 (2009) (available for free at Berkeley Electronic Press):
It's not a problem - they keep it alive for decades if need to be, by filing small enhancements to the patent before it issues.
Submarine patents are no longer a problem of any significance and haven't been for years.
And a patent does not have to be enforced to be valid - latches and waivers do not apply to patents
This is false. The doctrine of laches most certainly does apply to patents. From A.C. Aukerman Co. v. R.L. Chaides Construction Co., which was decided by the full Federal Circuit so as to set out the law clearly:
Is it me, or does the USPTO simply suck at finding prior art? I'm not saying it's their fault, I'm simply saying it's difficult for them to sift through huge amounts of data for each patent looking for the prior art that may invalidate said patent.
There are several reasons for this. One reason is that most examiners are inexperienced. Right now something like 80% of examiners have been working for the PTO for less than 3 years. Only about 7% have been working there for more than 10.
Another reason is that, particularly with regard to software and software-related inventions, the PTO has a hard time recruiting qualified examiners. A big reason for this is that examiners have to live in the Alexandria, VA area, which is about as far as you can get from the west coast IT industry.
I've also heard that examiners don't have the resources they need to do a proper search of the non-patent literature, but I don't have any hard data on that.
And, of course, sometimes patent applicants represent their invention one way during prosecution but then try to use it differently during litigation. For example, I believe Yahoo was sued or at least threatened for something to do with its maps website by a company that had a patent on using a computer to map...migratory birds. The claims appeared to read on Yahoo Maps, but it was quite apparent from the application as a whole that the invention was unrelated to anything Yahoo was doing. There's really not much the PTO can do about that.
Do they have to prove exact prior art, if they can prove that the differences between the prior art and the patent are obvious to a practitioner of the art?
Proving obviousness requires showing that all of the elements of the claimed invention exist in the prior art or can be shown to be within the common sense or common creativity of one having ordinary skill in the art at the time. As you might imagine, there's a lot of subjectivity to the 'common sense or common creativity' part, but there must still be some rational explanation for why elements that can't be explicitly shown in the prior art would have fallen under common sense or creativity. The bottom line is that evidence must be presented. It's not enough to just have someone stand up and say "it's obvious."
So why on earth should merely combining the words "embedded", "Linux", "wireless" and "router" make something patentable? These are not novel combinations that required a leap of creative insight, but rather extremely straightforward and obvious combinations.
In this case it appears to have been a failure of the PTO to find the relevant prior art. The burden is on the Patent Office to demonstrate that an invention claimed in an application is not patentable, and the Patent Office is often not the best at searching non-patent literature (i.e., everything that isn't a patent or patent application), especially when the NPL is also not part of a regularly published scientific journal. This leads to a lot of open source projects falling below the Patent Office radar. As you can imagine, this is particularly problematic for patents that were examined before decent search engines like Google became available.
For example, the bulk of the examination in this case occurred between October 2001 and November 2003. Google had just started to take off at that time (the IPO wasn't until August 2004).
Anyone got links to confirm / disprove this theory?
Short version: Cox was just wrong. Cisco wasn't shipping big IPv6 routers in 2004 (although they were shipping other IPv6 hardware and software), but it wasn't because of patents. It was because there was no demand from the telecommunications companies, who knew they had several years before IPv4 ran out. Furthermore, Cisco's current largest routers (the carrier grade CRS series) support IPv6 (example), yet 20 years from the publication of the main IPv6 RFC is December 2018. So Cox's theory is plainly invalidated.
Long version: The closest anything has come to a patent scare is Microsoft's 6,101,499 patent, but "After extensive review by our technical experts, Microsoft does not believe that the 499 patent includes any claims which cover RFC 2462 or RFC 2464 [i.e., IPv6]." (source). So Microsoft, about as big a software player as there is, went out of its way to clear a patent that a third party (PUBPAT) had identified as potentially related to IPv6.
Furthermore, Apple, Google, Microsoft, Sun/Oracle, and VMware all ship IPv6-compatible software. Lots of home routers, including Apple's, also support it. Cisco has supported it in IOS since 2001. IBM has supported it in z/OS since 2002.
Since major companies have been shipping hardware and software that implements IPv6 for years with nary a peep from anybody, laches becomes a serious issue for any potential plaintiff. Of course, all of these large companies have legal departments that have analyzed IPv6 for patent issues, as have groups like PUBPAT. It seems unlikely that they would all miss a problematic patent of any significance.
No, the hold up seems to be entirely on the infrastructural side, which is much more a problem of cost than capability. The routers and switches that make up the Internet infrastructure are extremely expensive (tens of thousands to millions). Here's one example. ISPs and long-haul fiber operators aren't going to spend untold millions of dollars on upgrading their equipment and training their staff while the old stuff still works fine and they're still making money off of it.
And to give a specific example of a well-studied off-label use of a drug:
Prochlorperazine (aka Compazine) has been used for decades to treat migraines, but it isn't approved by the FDA for this. There are lots of studies supporting this use, including randomized, double-control studies.
FDA approval for a new indication costs $12-15 million. When the marked for a drug is dominated by a cheap, low-margin generic version, there is simply no economic incentive to seek FDA approval for a new indication.
The same thing is about to happen with using ketamine to treat depression. Ketamine is cheap and long out of patent, and apparently it works wonders for depression. It is highly unlikely that any company will bother spending the money to get FDA approval for this indication.
The FDA frowns on off-label marketing:
There's a huge difference between off-label marketing and off-label use of a drug by a physician. Of course the FDA frowns on off-label marketing; the ability to market a drug for a particular use is precisely what FDA approval is for.
Whatever you're talking about is off point. And also wrong.
It's not off point at all. The parachute example is a well-known, satirical critique of evidence based medicine.
http://www.bmj.com/content/327/7429/1459.abstract
It's also not wrong. Yes, the first AIDS drug (AZT) was tested against placebo, and yes, later drugs are tested against other, existing drugs. But the presumption that Drug A is better than Drug B and Drug B was better than placebo therefore Drug A is better than placebo is not evidence-based medicine. That's the kind of intuitive assumption that evidence-based medicine proponents decry.
The point is that, ultimately, we can't base everything on randomized, placebo-controlled, double-blind trials. The line gets drawn at various places, and that's actually okay.
You are correct that where there's evidence it should be used. And where a bad therapy is used despite evidence against it, we have malpractice suits and medical board disciplinary hearings to correct it.
But evidence-based medicine is not the be all and end all of medical care, nor can it be.
And there's evidence that there's often lots of financial incentive to go through the trouble:
Botox is a special case. The company that makes 90% of the stuff has kept the process of producing it a trade secret. Therefore, it has an ongoing financial incentive to make new uses. That is not the usual route for drugs, however. Once a generic is available there usually isn't a lot of incentive to go through the time-consuming, expensive process of FDA approval for a new indication, even if there are good studies supporting it.
Further, even if that were a counter-example (which it isn't), it's hardly evidence that there is 'often' a financial incentive to go through the trouble of getting FDA approval for a new use.
What? Doctors have to be convinced to follow evidence-based medicine? What were they practicing before? And why are they against it?
You know, there's never been a randomized control trial of the effectiveness of parachutes versus placebo when jumping out of planes at high altitude. Would you care to volunteer?
Some things are just obvious or can be deduced from retrospective analysis or theoretical modeling. And some times it would be unethical or impractical to conduct a randomized control trial of a treatment (e.g., testing an AIDS drug versus placebo).
The idea that doctors are ALLOWED to prescribe drugs for off-label use horrifies me (it's off-label because there's no proof it works for the off-label condition).
No, there is often tons of proof. Off-label just means that the manufacturer hasn't gone through the (expensive, time-consuming) process of proving its effectiveness to the FDA. If the patent has expired there's often no financial incentive to go through the trouble.
As I said, inventorship can often be corrected. You are correct that errors made with deceptive intent cannot be corrected and can lead to the patent being held unenforceable due to inequitable conduct. However, most errors of inventorship are accidental, and in most cases everyone involved is under an obligation to assign the patent rights to their employer anyway, so people don't normally care all that much about whose name is on the piece of paper.
Note that unenforceability is separate from invalidity. Unenforceability applies to the entire patent, whereas invalidity is usually decided on a claim-by-claim basis.
In cases without deceptive intent, the courts and the Patent Office are usually pretty easy-going when it comes to correcting inventorship.
Another note about inventorship: in the US, patents go to inventors, not companies, although an inventor can sign a contract obligating him or her to assign his or her rights to a company. If an inventor is not under an obligation of assignment but is accidentally left off of a patent application and then added back later, the company that owns the patent may have some trouble convincing the inventor to sign over his or her rights, especially if the patent has become valuable in the meanwhile. Thus, companies have an incentive to get inventorship correct from the beginning rather than risk having to pay off an inventor after the fact.
I don't want to discount the value of the study itself. Clearly it's important to quantify how bad the problem is and try to develop solutions. But at the same time, the article and summary might give one the impression that the errors and biases involved were newly discovered by the researchers. A few examples:
The secondary marker problem (e.g. tracking cholesterol levels instead of real outcomes like deaths)
Comparing new drugs only to placebo or only to drugs that aren't best-in-class or using an intentionally weak dose of the comparison drug
Using meta-analysis of other studies instead of doing new research (and often doing it badly)
Doing retrospective analyses like chart reviews instead of prospective studies (and often doing those badly)
To expand upon that last example: common problems with the methodology of chart review studies were investigated thoroughly by Gilbert and Lowenstein in 1996. Despite their findings and recommendations for how to do a chart review properly, things haven't improved much since.
Many doctors and researchers have been critiquing studies and warning about these problems for years. In the emergency medicine context, for example, Jerome Hoffman, a UCLA medical professor and emergency department physician, is well known as a critic of poorly designed studies in the emergency medicine literature. He has critically reviewed studies since 1977 as part of a continuing medical education program called Emergency Medical Abstracts.
So the problems are well known. The bigger issue is how to fix them.
By the way, a common way to get a patent invalidated is to find someone who should have been on the patent but was not (which invalidates the patent).
This is not true. Inventorship can often be corrected after issuance through reissue or a certificate of correction. MPEP 1412.04.