Even if this was a valid patent the websites are all just sending html/text to whatever agent the user is running. It's the browser that is actually doing the rendering. So does that not mean that the browser is the one that needs to get the license?
The patent grant is the exclusive right to make, use, sell, offer to sell, or import the patented invention. 35 USC 271(a). Further, the law recognizes contributory infringement and active inducement of infringement. 35 USC 271(b-c) The companies operating the web servers are intending and indeed relying on the fact that the users will infringe the patent when they run the offending code. The direct infringement by the user creates contributory infringement by the web server operator.
I actually fully agree. If a web developer themself has no clue at all what this patent is talking about, then who is it referring to? Shouldn't experts in the field understand the patent itself? If experts in the field have no clue what they are saying, then are they really saying anything?
First, the patent application was filed in 1990. The only web developer around at the time was Tim Berners-Lee himself, so web developers aren't the relevant experts.
Second, yes, patent law does have that requirement, which is called enablement, although it is not about experts but rather people skilled in the art, which has been interpreted to mean people having ordinary skill in the art.
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same
35 USC 112. Specifically, the patent must enable one skilled in the art to make and use the invention without undue experimentation. In re Wands, 858 F.2d 731 (Fed.Cir. 1988).
I am personally in favor of substantially tightening the enablement requirement (as well as the related written description requirement). Many problematic software problems are, at their core, simply overly broad. They do not actually equip one having ordinary skill in the art to make and use the invention, nor do they describe the invention in full, clear, concise, and exact terms. They also often fail, in my opinion, to "show that the inventor actually invented the invention claimed." Ariad v. Eli Lilly and Co., 598 F. 3d 1336 (Fed.Cir. 2010).
Tightening these requirements would give people the tools to strike down nebulous patents of all stripes, including software patents, and force patent applicants to claim only that which they actually invented, not every pie in the sky variation they can possibly imagine could possibly work.
As I mentioned earlier, just because a patent is expired doesn't mean one can't sue for past infringement. The statute of limitations on patent infringement is six years. 35 USC 286. So, the owner of this patent can sue for infringements that occurred as far back as October 5, 2004.
However, the equitable doctrine of laches may limit an infringement suit to more recent instances of infringement.
In pharma, or the automobile industry, a threat is met with a legal team and a counter-suit. For software, when it's small businesses or even individuals that get threatened, they don't have the time and resources to play the game.
A reexamination request only costs $2,520. One was filed in this case a month ago, actually. And for your talk of small business and individuals, note that this company isn't going after small businesses or individuals. It's going after companies that range from large to huge: Apple, Google, Nokia, Sears, Sony, Orbitz, Abercrombie and Fitch, Bed Bath & Beyond, Dell, Gamestop, E*Trade, Neiman Marcus, Visa. These are some of the largest companies in the world.
Furthermore, yes, it may be costly for an individual business or developer, but they can band together to each chip in a small amount to pay for reexamination or a declaratory judgment suit for a patent that threatens all of them.
You also seem to be assuming that there are no small businesses in pharma or the automobile industry. In fact there are many small drug companies, and most biotech companies are quite small. There are also many small companies in the automobile industry that make replacement parts, aftermarket accessories, etc. There are very few industries wholly made up of large companies.
The solution to this kind of thing is to tighten the written description and enablement requirements and reduce the presumption of validity. There is no need to blindly focus on software patents. They aren't special.
It's the old joke about the manager phoning his lawyer "Some company wants me to pay them $5K for a license, do I have to pay that?" "Give me $40k and I'll review it". (That number is the cost estimate that Dan Ravicher gave for giving a client a certificate of non-infringement.)
I wonder where Ravicher got his numbers. They're completely out of line with the AIPLA Economic Survey (a survey of practitioners), which found that the average cost of an infringement opinion is more like $13,000. And bear in mind that's the average; many attorneys are going to charge less for less complex cases or offer a sliding fee scale to small businesses and individuals. Just because a large law firm might charge 5 figures for an opinion does not mean that there aren't competent, technically trained IP attorneys that would do the same work for a fraction of that. I know because I'm one of them.
I'd say prior art is going to be impossible to come up with in the context of HTTP and the World Wide Web.
Prior art doesn't have to be in the same context as the infringement. Prior art only has to describe the elements of the claimed invention.
In this case, the application doesn't mention the Internet or the Web, though it does mention HyperText and HyperCard. The claims are written in broad terms, which actually makes it easier to find an example of something that fits the bill. If the inventor had been some visionary that described HTML, CSS, and JavaScript (i.e., the way most rollovers are implemented today), then sure, it would be impossible to find prior art, but that's not how the claims were written, and indeed the reexamination request claims that HyperCard, HyperText, and a couple of other systems (WE and SuperBook) are prior art.
Patents today run for 20 years from time of application, or 17 years from date of grant (whichever is later, although the 17 year rule only applies to patents filed quite some time ago.)
The application in this case was filed before June 8, 1995, meaning that its term is 17 years from the date of issue.
This patent is expired.
Just because a patent is expired doesn't mean one can't sue for past infringement. The statute of limitations on patent infringement is six years. 35 USC 286. So, the owner of this patent can sue for infringements that occurred as far back as October 5, 2004.
However, the equitable doctrine of laches may limit an infringement suit to more recent instances of infringement.
First, the application was filed in 1990, so prior art is going to be harder to come by than you might think.
Second, the patent was already thrown into reexamination a month ago. Check reexam 90/011,229 on PAIR for the details. The law firm that filed the reexam request is Townsend, Townsend & Crew, which is a major IP firm. The request cites multiple pieces of prior art and looks pretty well put together. One of the first things the examiner did was try to call the patent owner for an interview. The examiner couldn't get ahold of them. That's a bad sign for the patent owner.
Some of the prior art citations include HyperCard and HyperText.
Third, courts have tended to temporarily halt litigation (a procedure called a stay) while they wait for the results of a reexamination. It's quite possible that this patent is about to die in the Patent Office without the lawsuits moving forward.
It would be a serious ethical breach. It's also a highly subjective area, and lawyers and bar associations are notoriously difficult to persuade to sanction a lawyer, possibly from fear that they, one day, might be subject to sanctions for such a claim.
I agree that bar associations should do more to discipline misbehaving lawyers. However, malpractice suits are fairly effective.
Great soundbite. Then you realize that while there are 700,000 physicians in the US (not all practicing), there are 1.7 million active lawyers.
First, citation needed as to the number. The Bureau of Labor Statistics says "Lawyers held about 759,200 jobs in 2008." Source. The American Bar Association says there were 1.18 million active attorneys in the US in 2009. Source. The difference being that not all active attorneys have 'lawyer' as their primary employment (for example, I am an attorney, but my primary job is as an academic researcher, though I do represent clients).
You also have to consider the amounts involved. Most lawyers don't deal with multi-million dollar issues, but doctors almost all do.
But even granting that it's not a complete apples to apples comparison, the point remains that the annual per-attorney liability is in the thousands of dollars. If you don't think that's serious, then, well, I invite you to consider whether you'd want to practice law without malpractice insurance.
Good post, but your argument that lawyers won't misrepresent the situation to lead the plaintiffs to make a poor choice is that lots of money gets paid out for legal malpractice that is actually successfully sued for? Really? That information suggests to me that it is common practice...
Malpractice is distressingly common, but it's not usually because of outright misrepresentation. It's usually just because of incompetence.
Combine that with the difficulty in getting disbarred (how long did it take Florida to finally sanction Jack Thompson?) and it starts to look like there is probably a worse problem.
It's true that bar associations should have higher standards and should be quicker to discipline misbehaving lawyers.
So, you're saying that the least that I can expect to earn the moment I graduate is the median (household!) income?
Actually, if you look at the chart, a significant number of new grads make less than that. Also, that's assuming you get a job at all. At least 1 in 8 new grads don't.
So I'm above average after the first pay review?
Not necessarily. The past few years have seen paycuts for most attorneys, from those at big law firms all the way down.
You're not exactly putting me off lawyering as a career, buddy.
Remember, you're also coming out of law school with something like $75,000 in new debt, on average. That's on top of whatever you accumulated from undergrad.
As you say, it costs money up front. And winning is never certain, especially when suing a government entity. And remember, at the end of the day, the difference between the contingent fee and the hourly fee is often not all that much. In addition to the lawyer's fees there are court costs, expert witness fees, document duplication, discovery costs (somebody has to weed through hundreds or thousands of emails and documents to find the juicy bits), etc. The client has to pay for all of that, whether hourly or out of the award.
they couldn't find a lawyer who was willing to compete against the rest of his industry
Ah, on the contrary. Attorneys are happy to bill by the hour, since it means they should get paid whether they win or lose. Many times an attorney will decline to take a case on contingency but will offer hourly representation. Attorneys offer contingent fee arrangements because sometimes it's the only way to get business, not because they like it. It's uncertain, and the cash flow sucks (imagine only getting paid a few times a year yet having the same monthly bills).
or the lawyer who make 400K USD misrepresented the situation in the first place, and lead the plaintiffs to make the poor choice.
This would be a serious ethical breach opening the door to a legal malpractice suit, disciplinary action, and potentially disbarment for the attorney. Legal malpractice is no joke. About the same amount is paid out in legal malpractice each year as medical malpractice.
You'll typically be asked to pay several thousands bucks, up front, as a retainer fee, BEFORE anything is even accomplished at all. (Does you doctor or software programmer demand this?)
Not all attorneys use a retainer. For those that do (commonly in divorce, bankruptcy, and criminal defense), it's done because not using a retainer is a good way to end up with nothing. Clients are actually pretty bad about paying their bills. Sometimes they don't have the money. Sometimes they decide it wasn't worth the cost and don't want to pay. It happens very frequently, especially with private individuals.
And yes, there are software developers, designers, and other professionals that do custom work that require a retainer.
After you pay, you get billed for such things as a document being delivered and submitted to the court clerk.
First, not all attorneys or firms do this. Shop around. Some will have documents dropped off by a paralegal or secretary and bill accordingly.
Second, for an important case or important document, sometimes you want an attorney to handle the little stuff. You want someone there who can notice if the clerk mishandles it, for example. Or you want someone who can make an on-the-spot correction if needed.
For that matter, you're typically billed an hour or more for time spent drafting letters or other documents that are already saved on a PC as a Word template, and a relatively low-paid admin. assistant actually filled out
Presumably that was billed at a lower rate. If not, you should shop around. Most firms bill very different rates depending on whether the work was done by a senior or junior attorney, paralegal, or secretary.
I'm sorry about your particular case. It sounds like you picked a pretty terrible attorney. Some of what you describe sounds like you should have contacted the state bar about or otherwise disputed. You certainly should have made sure you understood the billing structure better and shopped around for alternatives before choosing an attorney. An attorney is supposed to explain his or her fee structure clearly, and if your attorney did not, then that's certainly something to complain about.
Just a reminder kids - stay in school - LAW SCHOOL.
That would be a bad idea. The legal job market is terrible and will remain so for a long time because of the tremendous oversupply of lawyers. The situation is likely to get worse; despite the oversupply, universities are actually opening new law schools and increasing class sizes. Meanwhile, the number of available jobs is shrinking as law firms lay off associates and partners, government agencies have their budgets frozen or cut, corporate legal departments go through similar cuts, and the overall demand for legal services goes down. For example, hard as it may be for Slashdot readers to believe, spending on patent litigation and prosecution have actually gone down in this recession.
Some highlights: Overall employment down to 88.3% (2% of which are law school 'jobs program' jobs). 25% of jobs are temporary. Only 70.8% have a job that actually requires a JD. 22% are still actively looking for work despite being employed. All of these numbers are worse than prior years. Given the self-selection and reporting bias involved it's likely that the true numbers are even worse.
Also notable is the salary distribution for new law school graduates. It's bimodal, with one peak centered at $50,000 (i.e., the median family income in the US) and another at $160,000 (i.e., the select few that get jobs at large law firms). Even if you get a job with a large law firm, there's a good chance your actual employment will be deferred for up to 18 months. In the meanwhile you may or many not get paid anything, depending on the firm.
No, law school is actually a horrible decision from an economic point of view unless you can get a full scholarship or are assured of a well paying job straight out of school (e.g., strong family connections at a large law firm).
Yes, it's true, when parties have disputes, the people they hire to represent them in those disputes get paid.
You might as well say "it's always the doctors who win." After all, everybody gets sick eventually, and there are the doctors, just waiting to get their cut, profiting off of the suffering of others.
Or "it's always the programmers who win." After all, computers are everywhere now, and somebody has to program them. And there are the programmers, eager to take their slice. They write a program once and sell a million copies. What parasites!
Or you could look at it as a valuable service rendered by specialists so that other people don't have to worry about the details of the legal system, modern health care, or computer programming. It's called the division of labor, and it's essential to a well-developed economy.
It's not the shareholders that lose money -- companies have an obligation to keep them happy
Shareholders lose money because of lawsuits all the time. A company loses a suit and its stock price tanks. A company has to pay out a ton of money and there's none left over to pay shareholders a dividend. A company loses a major suit, goes bankrupt, and the shareholders get nothing. Companies can try to pass on costs to customers, but it doesn't always work. If passing on the cost means raising prices above what the market will bear, customers will go elsewhere.
You do realize that the plaintiffs signed a contract with the attorney specifically pointing out the details of the contingent fee, right? That the rules of legal ethics require the attorney to make it clear to the client how a contingent fee works? If the plaintiffs wanted to take the entire award, they could've hired an attorney that they paid by the hour. They wanted to pay nothing up front, and the trade off is that they took a much-reduced award on the back end.
I'm sick of seeing all of the patents that have been issued for things that were not really invented, just found to always exist and be useful.
While one can certainly argue that patentability should distinguish between inventions and discoveries, in the US the Patent Act specifically addresses this issue. "The term "invention" means invention or discovery." 35 USC 100(a) and "Patentability shall not be negatived by the manner in which the invention was made." 35 USC 103(a).
Graphene is just a very common form of carbon that has long existed.
This is technically true, but isolated, purified graphene does not occur naturally. Similarly, macroscopic graphene molecules also do not occur naturally. A patent on graphene would almost certainly claim isolated, purified graphene with an average molecule size of at least some useful lower bound, backed up by a method for making such purified, large-scale graphene.
This is similar to patents on new metal alloys. It is likely that some tiny smattering of the right mixture of metals exists in some deposit somewhere on Earth, but that doesn't mean anybody knew about it or knew its properties. It's also still worth encouraging research into and helping commercialize the discovery of which alloys are actually useful.
on on a particular application (although that second one seems dubious)
Why does it seem dubious? If the application consists solely of replacing an existing material with graphene in an already known device (and doing so only because graphene is just lighter, stronger, etc), then that is probably obvious. But if the application consists of a new device made possible because of graphene's particular characteristics, then that would most likely be patentable.
In the US, the standard is "not obvious to one having ordinary skill in the art". In other words, someone with more skill than Joe Sixpack, but less skill than an expert in the field.
It's a little more complicated than that. The level of skill involved depends on the subject matter. If the patent is about a simple mechanical device, then the level of skill will be relatively low. Perhaps a bachelor's degree in mechanical engineering, if that. If the patent is about a complex genetically modified organism, then the person having ordinary skill in the art would have a high level of skill, probably a Ph.D in biology with some additional years of experience.
You tend to have alleged infringers arguing that the level of skill in a given case is very high and therefore the super-genius involved would easily have found the invention obvious. The patentee tends to argue that the level of skill is very low and that the Joe Sixpack involved would find the invention astonishingly unobvious.
The European Patent Convention--and thus the patent law of EU countries--follows a similar standard as the US ('a person skilled in the art').
Counter-intuitively, this actually presents a case for stronger patents. A strong, easily enforced patent would allow Geim to secure licenses from companies using graphene without a long or expensive legal battle. Strong patents give individual inventors and startups the leverage they need to compete against established players.
Weak patents favor large, established companies. A single weak patent isn't very useful, but a thousand weak patents can destroy a startup competitor or force a settlement with a large one. The result is that large, established companies will tend to accumulate huge portfolios while preventing startups from flourishing. Startups will tend to hope to be bought up by established companies rather than try to compete on their own. And that's exactly what we see today: comparatively few new, large companies and a lot of established players with large patent portfolios that buy up new competitors and engage in low stakes patent litigation with each other that routinely ends in status quo-preserving settlements and cross-licensing agreements.
Note that strong patents are not mutually exclusive with tougher examination and stricter patentability standards. We can do things like reform the written description and enablement requirements so that patentees are forced to write narrower claims that only cover what they actually invented and not just whatever they could brainstorm or dream up without actually nailing down the particulars. Such reforms are not incompatible with making patents stronger and more easily enforced.
You CANNOT patent basic elements: Graphene [wikipedia.org] is a form of carbon.
It wouldn't be a patent on carbon itself as graphene can be considered an indefinitely large molecule. In the US it would be a patent on a 'composition of matter,' which is one of the basic classes of statutory subject matter. Although graphene does occur naturally in graphite and elsewhere, it does not occur in an isolated, purified form. The patent claims would be to isolated, purified graphene, probably having certain other characteristics (e.g., an average sheet size of at least X mm or whatever). All of this would be backed up with a description of (and probably claims for) a method of making graphene with those characteristics.
Or, to put it another way, if you know you'll win the case no matter what court you go to, you don't gain anything by going to Eastern Texas.
But, as I explained, that's not true. There are lots of advantages to Texas Eastern that apply to all kinds of patentees (e.g., the docket moves quickly and the judges are experienced).
For example, Ericsson and LG recently filed suits in Texas Eastern, and they're hardly examples of trolls.
Anyway, the courts have gotten wise to the abuse of venues like Texas Eastern by parties that have essentially no connection to the district and have started becoming more favorable toward motions to transfer.
The Eastern District of Texas is not the most patentee-favorable district in the country. Recent research by Mark Lemley found that it had the 6th highest patentee win rate of districts with a significant number of patent infringement cases. The Northern District of Texas, Middle District of Florida, District of Nevada, District of Delaware, and District of Oregon are all more favorable to the patentee.
The Texas Eastern patentee win rate was 40.3%, compared to a high of 55.1% in Texas Northern. The lowest rate was Georgia Northern at 11.5%. There's a wide range in win rates, and the rates are affected by a lot of factors.
Furthermore, blaming the Eastern District of Texas is a tremendous case of confusing correlation with causation. Litigants select Texas Eastern for a lot of reasons. For example, it's a fairly fast docket (though not the fastest), and the judges are experienced and have a reputation for not suffering fools gladly. Further, while the Federal Circuit controls patent law, there are lots of other issues that are based on 5th Circuit law, which may be attractive for various reasons.
Originally, in the US, the term of a copyright was 14 years, after which the work would enter the public domain. Today, the term of a copyright is 70 years after the death of the author. What this means is that copyright terms have increased by roughly one order of magnitude.
Okay, but how does a lengthy copyright term warrant bomb threats and DDOS attacks on a law firm? The firm didn't create the law, and it doesn't have the power to change it. It's just enforcing it on behalf of a client, who also neither created the law nor has the power to change it. The criminals engaging in bomb threats and DDOS attacks aren't even attacking the 'right' people. It's completely unjustified. Furthermore, the film Cornered! was released in 2009. Even by the standards of the first Copyright Act that film would still be under copyright.
The second is the inclusion of criminal elements in a specifically civil matter. Originally, copyright was a case where the copyright holder was responsible for enforcing their copyrights through the legal process. However, the Digital Millennium Copyright Act introduced criminal elements into the process, making certain forms of infringements (circumventing anti-copying protections) into a criminal matter.
This is extremely inaccurate. Criminal copyright infringement has existed in the US since 1897 and was expanded in 1909, 1976, 1982, 1997, and 1998 (with the DMCA). By the way, the RIAA was only founded in 1952 and the MPAA's predecessor organization in 1922, so criminal copyright infringement predates those groups by many years.
When faced with a fundamentally unjust society people will increasingly turn to alternate means to redress legitimate grievances. This is why civil liberties matter and why due process, equal justice, proportionate punishment, and presumption of innocence rather than presumption of guilt are essential, and yet all of these core principles are under open attack in the United States today.
What legitimate grievances? The RIAA, MPAA, and other groups have generally not been suing people who didn't, in fact, commit copyright infringement. In the few trials that have reached the verdict stage, the defendants have been found liable. The issues are about the level of damages, the cost of litigation, and whether the litigation strategy even makes sense. What's not an issue is that the defendants who were found liable broke the law.
As for due process: the defendants are getting tons of it. They have all the due process of a civil trial in the US, which is a lot. As for presumption of innocence: the defendants have it. It's up to the plaintiffs to allege and prove infringement.
Civil liberties don't really enter into it. It's not like these suits are being used as a cudgel to suppress political dissent or something. Nor is the government using warrantless wiretapping or the like to ferret out filesharers. I'll grant that there are some worrisome provisions in ACTA and some other laws in the pipeline, but those are not the law yet, and they can and should be fought through the political process. Attacking a law firm will not change any of that, and will likely make things worse by making it much easier for the RIAA and MPAA to paint file sharers as dangerous criminals.
Equal justice is a complicated notion. What is it supposed to mean in these cases, where the defendants are being found liable after a fair trial? Anyway, we have laws against frivolous and vexatious litigation, and there are fee-shifting provisions in copyright law that cut both ways (i.e., defendants can get their attorneys fees paid for in some cases). 17 USC 505.
I will grant you proportionate punishment. Statutory damages in copyright law are absurd, but they are just that, statutory damages. They weren't invented by a judge; they were produced by the political process. The way to fight that is to work for reform. That means more than posting on Slashdot. That means ground-level fundraising, door to door campaigning, etc. It's hard work, but that's politics.
The idea that people should be free to use 'alternate means' (i.e., bomb threats and DDOS) to redress grievances is vastly more toxic to due process, equal justice, proportionate punishment, and presumption of innocence than anything the RIAA and MPAA have done. It stands in opposition to the entire notion of civil justice. What due process did this law firm have before they received the bomb threat? What is equal about a system of justice in which vigilantes can do as they please? What's proportionate about threatening to kill someone in response to a lawsuit? What presumption of innocence was the law firm given?
Slashdot Mirror
Even if this was a valid patent the websites are all just sending html/text to whatever agent the user is running. It's the browser that is actually doing the rendering. So does that not mean that the browser is the one that needs to get the license?
The patent grant is the exclusive right to make, use, sell, offer to sell, or import the patented invention. 35 USC 271(a). Further, the law recognizes contributory infringement and active inducement of infringement. 35 USC 271(b-c) The companies operating the web servers are intending and indeed relying on the fact that the users will infringe the patent when they run the offending code. The direct infringement by the user creates contributory infringement by the web server operator.
I actually fully agree. If a web developer themself has no clue at all what this patent is talking about, then who is it referring to? Shouldn't experts in the field understand the patent itself? If experts in the field have no clue what they are saying, then are they really saying anything?
First, the patent application was filed in 1990. The only web developer around at the time was Tim Berners-Lee himself, so web developers aren't the relevant experts.
Second, yes, patent law does have that requirement, which is called enablement, although it is not about experts but rather people skilled in the art, which has been interpreted to mean people having ordinary skill in the art.
35 USC 112. Specifically, the patent must enable one skilled in the art to make and use the invention without undue experimentation. In re Wands, 858 F.2d 731 (Fed.Cir. 1988).
I am personally in favor of substantially tightening the enablement requirement (as well as the related written description requirement). Many problematic software problems are, at their core, simply overly broad. They do not actually equip one having ordinary skill in the art to make and use the invention, nor do they describe the invention in full, clear, concise, and exact terms. They also often fail, in my opinion, to "show that the inventor actually invented the invention claimed." Ariad v. Eli Lilly and Co., 598 F. 3d 1336 (Fed.Cir. 2010).
Tightening these requirements would give people the tools to strike down nebulous patents of all stripes, including software patents, and force patent applicants to claim only that which they actually invented, not every pie in the sky variation they can possibly imagine could possibly work.
See above. Expired patents can still form the basis of a suit for past infringement that occurred while the patent was in force.
As I mentioned earlier, just because a patent is expired doesn't mean one can't sue for past infringement. The statute of limitations on patent infringement is six years. 35 USC 286. So, the owner of this patent can sue for infringements that occurred as far back as October 5, 2004.
However, the equitable doctrine of laches may limit an infringement suit to more recent instances of infringement.
In pharma, or the automobile industry, a threat is met with a legal team and a counter-suit. For software, when it's small businesses or even individuals that get threatened, they don't have the time and resources to play the game.
A reexamination request only costs $2,520. One was filed in this case a month ago, actually. And for your talk of small business and individuals, note that this company isn't going after small businesses or individuals. It's going after companies that range from large to huge: Apple, Google, Nokia, Sears, Sony, Orbitz, Abercrombie and Fitch, Bed Bath & Beyond, Dell, Gamestop, E*Trade, Neiman Marcus, Visa. These are some of the largest companies in the world.
Furthermore, yes, it may be costly for an individual business or developer, but they can band together to each chip in a small amount to pay for reexamination or a declaratory judgment suit for a patent that threatens all of them.
You also seem to be assuming that there are no small businesses in pharma or the automobile industry. In fact there are many small drug companies, and most biotech companies are quite small. There are also many small companies in the automobile industry that make replacement parts, aftermarket accessories, etc. There are very few industries wholly made up of large companies.
The solution to this kind of thing is to tighten the written description and enablement requirements and reduce the presumption of validity. There is no need to blindly focus on software patents. They aren't special.
It's the old joke about the manager phoning his lawyer "Some company wants me to pay them $5K for a license, do I have to pay that?" "Give me $40k and I'll review it". (That number is the cost estimate that Dan Ravicher gave for giving a client a certificate of non-infringement.)
I wonder where Ravicher got his numbers. They're completely out of line with the AIPLA Economic Survey (a survey of practitioners), which found that the average cost of an infringement opinion is more like $13,000. And bear in mind that's the average; many attorneys are going to charge less for less complex cases or offer a sliding fee scale to small businesses and individuals. Just because a large law firm might charge 5 figures for an opinion does not mean that there aren't competent, technically trained IP attorneys that would do the same work for a fraction of that. I know because I'm one of them.
I'd say prior art is going to be impossible to come up with in the context of HTTP and the World Wide Web.
Prior art doesn't have to be in the same context as the infringement. Prior art only has to describe the elements of the claimed invention.
In this case, the application doesn't mention the Internet or the Web, though it does mention HyperText and HyperCard. The claims are written in broad terms, which actually makes it easier to find an example of something that fits the bill. If the inventor had been some visionary that described HTML, CSS, and JavaScript (i.e., the way most rollovers are implemented today), then sure, it would be impossible to find prior art, but that's not how the claims were written, and indeed the reexamination request claims that HyperCard, HyperText, and a couple of other systems (WE and SuperBook) are prior art.
Patents today run for 20 years from time of application, or 17 years from date of grant (whichever is later, although the 17 year rule only applies to patents filed quite some time ago.)
The application in this case was filed before June 8, 1995, meaning that its term is 17 years from the date of issue.
This patent is expired.
Just because a patent is expired doesn't mean one can't sue for past infringement. The statute of limitations on patent infringement is six years. 35 USC 286. So, the owner of this patent can sue for infringements that occurred as far back as October 5, 2004.
However, the equitable doctrine of laches may limit an infringement suit to more recent instances of infringement.
First, the application was filed in 1990, so prior art is going to be harder to come by than you might think.
Second, the patent was already thrown into reexamination a month ago. Check reexam 90/011,229 on PAIR for the details. The law firm that filed the reexam request is Townsend, Townsend & Crew, which is a major IP firm. The request cites multiple pieces of prior art and looks pretty well put together. One of the first things the examiner did was try to call the patent owner for an interview. The examiner couldn't get ahold of them. That's a bad sign for the patent owner.
Some of the prior art citations include HyperCard and HyperText.
Third, courts have tended to temporarily halt litigation (a procedure called a stay) while they wait for the results of a reexamination. It's quite possible that this patent is about to die in the Patent Office without the lawsuits moving forward.
It would be a serious ethical breach. It's also a highly subjective area, and lawyers and bar associations are notoriously difficult to persuade to sanction a lawyer, possibly from fear that they, one day, might be subject to sanctions for such a claim.
I agree that bar associations should do more to discipline misbehaving lawyers. However, malpractice suits are fairly effective.
Great soundbite. Then you realize that while there are 700,000 physicians in the US (not all practicing), there are 1.7 million active lawyers.
First, citation needed as to the number. The Bureau of Labor Statistics says "Lawyers held about 759,200 jobs in 2008." Source. The American Bar Association says there were 1.18 million active attorneys in the US in 2009. Source. The difference being that not all active attorneys have 'lawyer' as their primary employment (for example, I am an attorney, but my primary job is as an academic researcher, though I do represent clients).
You also have to consider the amounts involved. Most lawyers don't deal with multi-million dollar issues, but doctors almost all do.
But even granting that it's not a complete apples to apples comparison, the point remains that the annual per-attorney liability is in the thousands of dollars. If you don't think that's serious, then, well, I invite you to consider whether you'd want to practice law without malpractice insurance.
Good post, but your argument that lawyers won't misrepresent the situation to lead the plaintiffs to make a poor choice is that lots of money gets paid out for legal malpractice that is actually successfully sued for? Really? That information suggests to me that it is common practice...
Malpractice is distressingly common, but it's not usually because of outright misrepresentation. It's usually just because of incompetence.
Combine that with the difficulty in getting disbarred (how long did it take Florida to finally sanction Jack Thompson?) and it starts to look like there is probably a worse problem.
It's true that bar associations should have higher standards and should be quicker to discipline misbehaving lawyers.
So, you're saying that the least that I can expect to earn the moment I graduate is the median (household!) income?
Actually, if you look at the chart, a significant number of new grads make less than that. Also, that's assuming you get a job at all. At least 1 in 8 new grads don't.
So I'm above average after the first pay review?
Not necessarily. The past few years have seen paycuts for most attorneys, from those at big law firms all the way down.
You're not exactly putting me off lawyering as a career, buddy.
Remember, you're also coming out of law school with something like $75,000 in new debt, on average. That's on top of whatever you accumulated from undergrad.
Why did the plaintiffs take the shit choice?
As you say, it costs money up front. And winning is never certain, especially when suing a government entity. And remember, at the end of the day, the difference between the contingent fee and the hourly fee is often not all that much. In addition to the lawyer's fees there are court costs, expert witness fees, document duplication, discovery costs (somebody has to weed through hundreds or thousands of emails and documents to find the juicy bits), etc. The client has to pay for all of that, whether hourly or out of the award.
they couldn't find a lawyer who was willing to compete against the rest of his industry
Ah, on the contrary. Attorneys are happy to bill by the hour, since it means they should get paid whether they win or lose. Many times an attorney will decline to take a case on contingency but will offer hourly representation. Attorneys offer contingent fee arrangements because sometimes it's the only way to get business, not because they like it. It's uncertain, and the cash flow sucks (imagine only getting paid a few times a year yet having the same monthly bills).
or the lawyer who make 400K USD misrepresented the situation in the first place, and lead the plaintiffs to make the poor choice.
This would be a serious ethical breach opening the door to a legal malpractice suit, disciplinary action, and potentially disbarment for the attorney. Legal malpractice is no joke. About the same amount is paid out in legal malpractice each year as medical malpractice.
You'll typically be asked to pay several thousands bucks, up front, as a retainer fee, BEFORE anything is even accomplished at all. (Does you doctor or software programmer demand this?)
Not all attorneys use a retainer. For those that do (commonly in divorce, bankruptcy, and criminal defense), it's done because not using a retainer is a good way to end up with nothing. Clients are actually pretty bad about paying their bills. Sometimes they don't have the money. Sometimes they decide it wasn't worth the cost and don't want to pay. It happens very frequently, especially with private individuals.
And yes, there are software developers, designers, and other professionals that do custom work that require a retainer.
After you pay, you get billed for such things as a document being delivered and submitted to the court clerk.
First, not all attorneys or firms do this. Shop around. Some will have documents dropped off by a paralegal or secretary and bill accordingly.
Second, for an important case or important document, sometimes you want an attorney to handle the little stuff. You want someone there who can notice if the clerk mishandles it, for example. Or you want someone who can make an on-the-spot correction if needed.
For that matter, you're typically billed an hour or more for time spent drafting letters or other documents that are already saved on a PC as a Word template, and a relatively low-paid admin. assistant actually filled out
Presumably that was billed at a lower rate. If not, you should shop around. Most firms bill very different rates depending on whether the work was done by a senior or junior attorney, paralegal, or secretary.
I'm sorry about your particular case. It sounds like you picked a pretty terrible attorney. Some of what you describe sounds like you should have contacted the state bar about or otherwise disputed. You certainly should have made sure you understood the billing structure better and shopped around for alternatives before choosing an attorney. An attorney is supposed to explain his or her fee structure clearly, and if your attorney did not, then that's certainly something to complain about.
Just a reminder kids - stay in school - LAW SCHOOL.
That would be a bad idea. The legal job market is terrible and will remain so for a long time because of the tremendous oversupply of lawyers. The situation is likely to get worse; despite the oversupply, universities are actually opening new law schools and increasing class sizes. Meanwhile, the number of available jobs is shrinking as law firms lay off associates and partners, government agencies have their budgets frozen or cut, corporate legal departments go through similar cuts, and the overall demand for legal services goes down. For example, hard as it may be for Slashdot readers to believe, spending on patent litigation and prosecution have actually gone down in this recession.
Some highlights: Overall employment down to 88.3% (2% of which are law school 'jobs program' jobs). 25% of jobs are temporary. Only 70.8% have a job that actually requires a JD. 22% are still actively looking for work despite being employed. All of these numbers are worse than prior years. Given the self-selection and reporting bias involved it's likely that the true numbers are even worse.
Also notable is the salary distribution for new law school graduates. It's bimodal, with one peak centered at $50,000 (i.e., the median family income in the US) and another at $160,000 (i.e., the select few that get jobs at large law firms). Even if you get a job with a large law firm, there's a good chance your actual employment will be deferred for up to 18 months. In the meanwhile you may or many not get paid anything, depending on the firm.
No, law school is actually a horrible decision from an economic point of view unless you can get a full scholarship or are assured of a well paying job straight out of school (e.g., strong family connections at a large law firm).
Yes, it's true, when parties have disputes, the people they hire to represent them in those disputes get paid.
You might as well say "it's always the doctors who win." After all, everybody gets sick eventually, and there are the doctors, just waiting to get their cut, profiting off of the suffering of others.
Or "it's always the programmers who win." After all, computers are everywhere now, and somebody has to program them. And there are the programmers, eager to take their slice. They write a program once and sell a million copies. What parasites!
Or you could look at it as a valuable service rendered by specialists so that other people don't have to worry about the details of the legal system, modern health care, or computer programming. It's called the division of labor, and it's essential to a well-developed economy.
It's not the shareholders that lose money -- companies have an obligation to keep them happy
Shareholders lose money because of lawsuits all the time. A company loses a suit and its stock price tanks. A company has to pay out a ton of money and there's none left over to pay shareholders a dividend. A company loses a major suit, goes bankrupt, and the shareholders get nothing. Companies can try to pass on costs to customers, but it doesn't always work. If passing on the cost means raising prices above what the market will bear, customers will go elsewhere.
You do realize that the plaintiffs signed a contract with the attorney specifically pointing out the details of the contingent fee, right? That the rules of legal ethics require the attorney to make it clear to the client how a contingent fee works? If the plaintiffs wanted to take the entire award, they could've hired an attorney that they paid by the hour. They wanted to pay nothing up front, and the trade off is that they took a much-reduced award on the back end.
I'm sick of seeing all of the patents that have been issued for things that were not really invented, just found to always exist and be useful.
While one can certainly argue that patentability should distinguish between inventions and discoveries, in the US the Patent Act specifically addresses this issue. "The term "invention" means invention or discovery." 35 USC 100(a) and "Patentability shall not be negatived by the manner in which the invention was made." 35 USC 103(a).
Graphene is just a very common form of carbon that has long existed.
This is technically true, but isolated, purified graphene does not occur naturally. Similarly, macroscopic graphene molecules also do not occur naturally. A patent on graphene would almost certainly claim isolated, purified graphene with an average molecule size of at least some useful lower bound, backed up by a method for making such purified, large-scale graphene.
This is similar to patents on new metal alloys. It is likely that some tiny smattering of the right mixture of metals exists in some deposit somewhere on Earth, but that doesn't mean anybody knew about it or knew its properties. It's also still worth encouraging research into and helping commercialize the discovery of which alloys are actually useful.
on on a particular application (although that second one seems dubious)
Why does it seem dubious? If the application consists solely of replacing an existing material with graphene in an already known device (and doing so only because graphene is just lighter, stronger, etc), then that is probably obvious. But if the application consists of a new device made possible because of graphene's particular characteristics, then that would most likely be patentable.
In the US, the standard is "not obvious to one having ordinary skill in the art". In other words, someone with more skill than Joe Sixpack, but less skill than an expert in the field.
It's a little more complicated than that. The level of skill involved depends on the subject matter. If the patent is about a simple mechanical device, then the level of skill will be relatively low. Perhaps a bachelor's degree in mechanical engineering, if that. If the patent is about a complex genetically modified organism, then the person having ordinary skill in the art would have a high level of skill, probably a Ph.D in biology with some additional years of experience.
You tend to have alleged infringers arguing that the level of skill in a given case is very high and therefore the super-genius involved would easily have found the invention obvious. The patentee tends to argue that the level of skill is very low and that the Joe Sixpack involved would find the invention astonishingly unobvious.
The European Patent Convention--and thus the patent law of EU countries--follows a similar standard as the US ('a person skilled in the art').
Counter-intuitively, this actually presents a case for stronger patents. A strong, easily enforced patent would allow Geim to secure licenses from companies using graphene without a long or expensive legal battle. Strong patents give individual inventors and startups the leverage they need to compete against established players.
Weak patents favor large, established companies. A single weak patent isn't very useful, but a thousand weak patents can destroy a startup competitor or force a settlement with a large one. The result is that large, established companies will tend to accumulate huge portfolios while preventing startups from flourishing. Startups will tend to hope to be bought up by established companies rather than try to compete on their own. And that's exactly what we see today: comparatively few new, large companies and a lot of established players with large patent portfolios that buy up new competitors and engage in low stakes patent litigation with each other that routinely ends in status quo-preserving settlements and cross-licensing agreements.
Note that strong patents are not mutually exclusive with tougher examination and stricter patentability standards. We can do things like reform the written description and enablement requirements so that patentees are forced to write narrower claims that only cover what they actually invented and not just whatever they could brainstorm or dream up without actually nailing down the particulars. Such reforms are not incompatible with making patents stronger and more easily enforced.
You CANNOT patent basic elements: Graphene [wikipedia.org] is a form of carbon.
It wouldn't be a patent on carbon itself as graphene can be considered an indefinitely large molecule. In the US it would be a patent on a 'composition of matter,' which is one of the basic classes of statutory subject matter. Although graphene does occur naturally in graphite and elsewhere, it does not occur in an isolated, purified form. The patent claims would be to isolated, purified graphene, probably having certain other characteristics (e.g., an average sheet size of at least X mm or whatever). All of this would be backed up with a description of (and probably claims for) a method of making graphene with those characteristics.
But, as I explained, that's not true. There are lots of advantages to Texas Eastern that apply to all kinds of patentees (e.g., the docket moves quickly and the judges are experienced).
For example, Ericsson and LG recently filed suits in Texas Eastern, and they're hardly examples of trolls.
Anyway, the courts have gotten wise to the abuse of venues like Texas Eastern by parties that have essentially no connection to the district and have started becoming more favorable toward motions to transfer.
How many clear cases of stifled innovation do we need before we have a major overhaul of copyright?
This was a patent case, not a copyright case. The two have very little to do with each other.
The Eastern District of Texas is not the most patentee-favorable district in the country. Recent research by Mark Lemley found that it had the 6th highest patentee win rate of districts with a significant number of patent infringement cases. The Northern District of Texas, Middle District of Florida, District of Nevada, District of Delaware, and District of Oregon are all more favorable to the patentee.
The Texas Eastern patentee win rate was 40.3%, compared to a high of 55.1% in Texas Northern. The lowest rate was Georgia Northern at 11.5%. There's a wide range in win rates, and the rates are affected by a lot of factors.
Furthermore, blaming the Eastern District of Texas is a tremendous case of confusing correlation with causation. Litigants select Texas Eastern for a lot of reasons. For example, it's a fairly fast docket (though not the fastest), and the judges are experienced and have a reputation for not suffering fools gladly. Further, while the Federal Circuit controls patent law, there are lots of other issues that are based on 5th Circuit law, which may be attractive for various reasons.
Originally, in the US, the term of a copyright was 14 years, after which the work would enter the public domain. Today, the term of a copyright is 70 years after the death of the author. What this means is that copyright terms have increased by roughly one order of magnitude.
Okay, but how does a lengthy copyright term warrant bomb threats and DDOS attacks on a law firm? The firm didn't create the law, and it doesn't have the power to change it. It's just enforcing it on behalf of a client, who also neither created the law nor has the power to change it. The criminals engaging in bomb threats and DDOS attacks aren't even attacking the 'right' people. It's completely unjustified. Furthermore, the film Cornered! was released in 2009. Even by the standards of the first Copyright Act that film would still be under copyright.
The second is the inclusion of criminal elements in a specifically civil matter. Originally, copyright was a case where the copyright holder was responsible for enforcing their copyrights through the legal process. However, the Digital Millennium Copyright Act introduced criminal elements into the process, making certain forms of infringements (circumventing anti-copying protections) into a criminal matter.
This is extremely inaccurate. Criminal copyright infringement has existed in the US since 1897 and was expanded in 1909, 1976, 1982, 1997, and 1998 (with the DMCA). By the way, the RIAA was only founded in 1952 and the MPAA's predecessor organization in 1922, so criminal copyright infringement predates those groups by many years.
When faced with a fundamentally unjust society people will increasingly turn to alternate means to redress legitimate grievances. This is why civil liberties matter and why due process, equal justice, proportionate punishment, and presumption of innocence rather than presumption of guilt are essential, and yet all of these core principles are under open attack in the United States today.
What legitimate grievances? The RIAA, MPAA, and other groups have generally not been suing people who didn't, in fact, commit copyright infringement. In the few trials that have reached the verdict stage, the defendants have been found liable. The issues are about the level of damages, the cost of litigation, and whether the litigation strategy even makes sense. What's not an issue is that the defendants who were found liable broke the law.
As for due process: the defendants are getting tons of it. They have all the due process of a civil trial in the US, which is a lot. As for presumption of innocence: the defendants have it. It's up to the plaintiffs to allege and prove infringement.
Civil liberties don't really enter into it. It's not like these suits are being used as a cudgel to suppress political dissent or something. Nor is the government using warrantless wiretapping or the like to ferret out filesharers. I'll grant that there are some worrisome provisions in ACTA and some other laws in the pipeline, but those are not the law yet, and they can and should be fought through the political process. Attacking a law firm will not change any of that, and will likely make things worse by making it much easier for the RIAA and MPAA to paint file sharers as dangerous criminals.
Equal justice is a complicated notion. What is it supposed to mean in these cases, where the defendants are being found liable after a fair trial? Anyway, we have laws against frivolous and vexatious litigation, and there are fee-shifting provisions in copyright law that cut both ways (i.e., defendants can get their attorneys fees paid for in some cases). 17 USC 505.
I will grant you proportionate punishment. Statutory damages in copyright law are absurd, but they are just that, statutory damages. They weren't invented by a judge; they were produced by the political process. The way to fight that is to work for reform. That means more than posting on Slashdot. That means ground-level fundraising, door to door campaigning, etc. It's hard work, but that's politics.
The idea that people should be free to use 'alternate means' (i.e., bomb threats and DDOS) to redress grievances is vastly more toxic to due process, equal justice, proportionate punishment, and presumption of innocence than anything the RIAA and MPAA have done. It stands in opposition to the entire notion of civil justice. What due process did this law firm have before they received the bomb threat? What is equal about a system of justice in which vigilantes can do as they please? What's proportionate about threatening to kill someone in response to a lawsuit? What presumption of innocence was the law firm given?