" How can we expect other countries to respect our patents if we continue allow such patents to continue to be filed?"
Our patents, or our patent system?
Other countries DON'T have to respect our patents, as long as they don't try and do business in the U.S. And vice-versa. A purely U.S. company could copy an invention patented in France, and as long as the company didn't try and sell the product in France, there is no infringement. And vice-versa. That's why we have the patent cooperation treaty -- so really good inventions can get patent protection in a large number of countries at once.
But if you are talking about our patent system -- then I agree with you!
Submarine patents really aren't the problem they once were. Back in the old days (prior to June, 1995) patents were good for 17 years from the date of issue. So, you could file a patent, keep quiet about it, and then use continuation practice to keep it alive, but not issuing, for a long time. Then, you let it issue once someone else has invested in the technology, and bam -- you've got a 17 year monopoly on technology that others are using, with a "priority date" long before anyone else. It didn't happen often, but it did happen.
Nowadays (Since June 1995), patents are good for 20 years from the earliest effective filing date -- so if you tried the same thing today, it might still work, but your patent wouldn't be good for very long once it issued, since the 20 year term is measured from the FIRST application that you claim priority from.
Further, with the Patent Cooperation Treaty, if you want to file your patent in more than one country, any application is going to become public record 18 months after you file, so it is much more difficult to keep things secret for long. And even if you only file in the U.S., if you fail to request that your application remain confidential, it becomes public record by default after 18 months.
I worked for a company once that got hammered by a submarine patent -- but the reality is, the new laws really make it a lot more difficult (although not impossible) for the same thing to happen today.
"SCO's principal argument in opposition to AutoZone's motion is that it will suffer irreparable harm if the case is stayed."
The reason for this language is because "irreperable harm" is the standard for granting or denying an injunction, depending on which side of the fence you are on. It's a legal term of art. Nothing more than that.
It's like when you go to the doctor -- when they write up their reports, they say "patient complained of..." So, even if you aren't a whiner, they say you are a complainer -- not to put you down, but because it is a term of art...
I understand what you are saying here, but legally, patents and copyrights ARE property, and have many of the same rights as personal or real property -- such as the right to exclude others, the right to sell, assign, or give away, the right to devise the property, and so on. Just because there is no "tangible" product doesn't mean that it isn't property, at least from a legal standpoint.
And just because patents and copyrights expire also does not mean that they are not property -- there are many interests in property that expire. Leaseholds are one, as you noted above.
I think your analogies are pretty good, actually, and perhaps trespass is a better term than stealing. In fact, common law uses the term "trespass" when you damage someone else's tangible property. I just thought I would point out that intellectual property, at least legally, IS property.
"IANAL, however as I understand it, it is legal to do something like borrow a friend's cd and make a copy for yourself."
Warning: U.S. Law Follows!
That would only be legal if you didn't give the original CD back. The right to make a backup is only for the owner of the original copy, and if the owner transfers the "title" -- i.e., owenership -- of the work, then he must also trasnfer or destroy any backups. He can't keep them.
Unless you are the owner of the original disk, you are violating the copyright owner's right to control reproduction of the CD. If your buddy makes an extra backup copy and gives it to you, he's violating both the right to control reproduction AND the right to control distribution.
At least, that's the way it is in the U.S. I know Canada has different rules, but I didn't go to law school in Canada...
"The fact that Congress has been bought to all but eliminate any rights of the consumer is what we need to change."
Maybe we should blame the Europeans, and not Disney. Sure, I have no doubt that Disney lobbied long and hard for the Sonny Bono Act of 1998, which increased the duration of copyrights retroactively -- but in a sense we HAD to do it in order to meet our obligations under the Berne Convention -- which means we had to make OUR copyright term of duration match up with what the Europeans (and everyone else) were doing. In 1997, the U.S. had the shortest copyright term of any of the Western countries; after 1998, with the coming of the Copyright Term Extension Act, we are now the same.
"IANAL, but do copyright cases even have a jury (in the USA), or do they get heard by just a judge, being that copyright cases are (currently) civil cases?"
Copyright cases, like virtually all civil cases in the U.S., can be either bench trials (in front of a judge) or jury trials. Either the defendant or the plaintiff can demand a jury trial. If neither demand a jury trial, then it's a bench trial.
"Even *if* it's heard by a jury, the instructions given the jury on what precise legal issue(s) and what evidence they can take into account in that/those decision(s) is *supposed* to limit the kind of jury rejection/nullification one might hope for in these kinds of stupid legal situations."
That's true, in principle. The jury is the "finder of fact" and is given the law by the judge. The jury is not suppossed to be the "finder of law." Jury nullifaction can, and does, happen, but I am not aware of any systematic studies that show how prevalent it might be.
"If a jury *did* reject/nullify such a case, would the judge be able to declare a mistrial on the basis of the jury not following instructions, or the case appealed on that basis?"
It would unlikely be a mistrial -- and if it were, mistrials are not appealed, but are instead retried at the trial court level or dismissed.
The judge DOES have the power to "direct the verdict" -- which basically means telling the jury how they have to decide. The judge may also declare a "judgment notwithstanding the verdict," which basically is "I know what you the jury cam up with, but you guys are idiots. I declare the verdict to be..."
The problem with both of these is that the case is virtually automatically appealed in these situations -- and since most judges prefer NOT to be overturned on appeal, they will generally let the jury ruling stand, and let the appelate courts decide if the law was correctly applied or not.
Anyway, the tricky part with any IP case that is tried in front of a jury (or even in front of a judge) is trying to educate the judge and jury on what are generally very complex and subtle issues while not putting them to sleep...
Vonnegut may well have written about something like this -- I don't know. But the story above is a true one. It's one of the major early populations who had significant chronic exposure to radioactive materials and radiation -- the radium dial painters were followed (and still are, for the few who may still be alive, I don't know if any are) to study the incidence of cancers and the like, since this was a group who had fairly high exposure levels where the amount of exposure could be determined relatively accurately. A lot of early models for radiation exposure were based on the studies of these women (and of uranium moners in Canada).
"If you realize that they're getting taxed based on the assumption that they're making at least a certain percentage of sales (10-15% in most places), regardless of how much you tip, you can see why customers that aren't expected to tip aren't getting good service; where else can you take money from somebody's pocket and expect them to be nice to you?"
If an employer is taxing on a certain percentage of sales, then they are breaking the law.* At one time, back when the IRS first started taxing tips, they used a percentage of sales to calculate tips (and it was like 8%, so if you were routinely getting 15%, then alsmost half of that amount was tax-free).
The law now requires servers to report their actual tips.
*One exception. If, at a particular establishment, 75% of the tipped employees agree, in writing, to abide by an IRS-run "Tip Rate Determination Agreement," then, and only then, can the taxes tipped employees pay be based on a percentage of sales. But it won't be a "flat" 10% or 15% -- the calculation is more complicated than that, and is required to more closely represent actual tip income.
Actually, this sanction applies to ANY case filed in federal courts -- but it really has only been widely employed in patent litigation cases.
So the law is there, but people aren't using it much...
"Once it becomes expensive to be a lawyer if you try to screw the system, many will opt to be engineers or business ppl again."
Or just be lawyers that DON'T try to screw the system!
You'd probably be suprised at just how many ways there are to get in trouble or lose your license if you are a lawyewr -- but, even with all of the rules, they are probably underused in many cases. It's a fine line between stopping "frivolous" lawsuits and making it so that lawyers are afraid to handle cases with actual merit...
"Just curious, where did your understanding come from?Techies/Engineer from Cornice."
Cool, thanks.
"I am guessing that there will be some level of infringment ( 1 line from the patent vs. the whole thing ) and that is allowing their lawyers to take the case to court."
Yeah, that could very well be. You have to have at least a "good faith" belief that there is infringement in order to avoid sanctions.
"Interesting to hear about that penalty."
FYI, here's the relevant section of Rule 11:
"(2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.
(A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2).
(B) Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned."
The scary thing (for attorneys, at least) is that the court can order that the Rule 11 sanctions be paid by the attorney and not allow the company that hired the attorney to indemnify the attorney!
Unless Seagate also holds these patents in Canada or Mexico as well...
The Patent Cooperation Treaty makes it fairly straightforward (although expensive) to file for a patent on an invention in virtually every country where you might need to enforce it, all at once!
Just curious, where did your understanding come from? All of the news outlets just say Seagate is accusing Cornice of infringing, nothing about other deals.
Maybe this really is a ploy to force Cornice into cross-licensing, maybe not -- but accusing someone of infrigement without having a strong basis for believing there is infringement can be heavily penailzed (and often is) under FRCP Rule 11.
"America ignored British patents while it was building its industrial base."
But did the British inventors hold U.S. patents on the technology? Remember, patents are ntaional in scope -- a U.S. patent can only be used against infringement in the U.S., or by a U.S. company.
"The basic fact of the matter is that innovation happens anyway. It's human nature. Patents just allow it to be controlled and channelled by the establishment. The Big Lie is that patents help or reward the small inventor. Maybe they would if only individuals could hold patents, I don't know - that's another thing that hasn't been tried much."
Patents may or may not reward the small inventor -- but a lot of patents, especially biotech-type patents, probably couldn't be done without a large investement in infrastructure, and no company is going to invest in infrastructure if they can't get a return. I guess we could have the government or universities do the research, but then it comes out of our pockets in taxes...
"Japan has a use-it-or-lose-it patent policy."
A number of patent systems have this policy, and others have a use-it-or-license-it policy.
"Basically, you're arguing a point I never made and making up FUD."
Maybe I misread your earlier post, but I got the impression that you were implying that licensing fees were "automatic." Didn't mean to argue a point you never made.
You do realize that virtually every other country ALSO has patent laws of various types -- some stricter than the U.S., some looser, but most countries have a patent system of one type or antoher.
At least the U.S. has an enforcement mechanism for patents, unlike India or China...
"If Cornice is really infringing on the patents, they will eventually have to pay licensing fees to Seagate, so the more they sell the more Seagate will benefit."
And how do you determine whether Cornice is "really infringing?"
You got to go to court.
Cornice isn't going to pay licensing fees to Seagate because they realize they are "really infringing" or because Seagate "feels" they are infringing -- they will pay licensing fees when they either get dragged into a lawsuit and decide that it's not worth a fight, or fight it and lose.
"so the more they sell the more Seagate will benefit"
One other thing -- if Seagate believes that Cornice is infringing, they are not allowed to let Cornice "rack up" licensing fees -- if they wait too long, they may lose their right to some or all of their rightful fees.
"If that guy who chased you to the police station *had* gotten his hands on you, there's no way in hell you'd win with self-defense, even *if* your candy-ass won the fight. Because *you* started the fight. *You* got out of your house and followed a complete stranger to his house (is that legal?-- stalking?). *You* started acting crazy toward him with your horn-honking. *You* were a willing participant in whatever shit was going to go down next-- just because you hadn't thought it through doesn't mean you weren't."
Just one point -- mere words -- even honking your horn or flipping someone off -- is inadequate "provocation" to nullify a self-defense argument.
Now, if you were to pull a knife or gun on someone, well, then you lose the right to sell defense. But words -- no matter how annoying or offensive -- are NEVER sufficient provocation for one to lose their right to self-defense.
Now, I agree that someone who does this sort fo thing probably deserves to get thier ass beat, and would likely get throw in jail because the cops don't want to have to sort this sorta thing out, but if you ended up in court, you could still prevail on self-defense unless you did more than yell and scream and annoy the other guy.
The problem everyone is hav ing here is that "obvious" doesn't mean "obivous". Sure, maybe it seems obvious to a user, but obvious in the context of patentability has a very specific definition:
From the Manual of Patent Examining Procedure, section 706.02(j):
"To establish a prima facie case of obviousness, three basic criteria must be met. First, there must be some suggestion or motivation, either in the references themselves or in the knowledge generally available to one of ordinary skill in the art, to modify the reference or to combine reference teachings. Second, there must be a reasonable expectation of success. Finally, the prior art reference (or references when combined) must teach or suggest all the claim limitations. The teaching or suggestion to make the claimed combination and the reasonable expectation of success must both be found in the prior art and not based on applicant's disclosure. In re Vaeck, 947 F.2d 488, 20 USPQ2d 1438 (Fed. Cir. 1991). See MPEP 2143 - 2143.03 for decisions pertinent to each of these criteria."
The basic notion is that there must be some prior art, or combination of prior art, that "teaches" EACH AND EVERY claim element in the later patent -- PLUS there has to be a "motivation" to combine them. Just because there is prior art, or because something seems "obvious" to a user, doesn't mean that it meets the LEGAL definition of "obvious" relevant to the USPTO.
"Basically, one just needs a more specific patent, than an existing one, thus there is no infringement. Do a search and see how many patents there are out there for mousetraps..."
That's only true if the "new" handle doesn't infringe on the "original" handle. If someone patents a "toothbrush handle" and I later invent "toothbrush handle with kryptonite grip" or something, I can certainly patent my new toothbrush handle if it otherwise meets all of the requirements for patentability.
However, if the underlying "handle" part of my invention is actually covered by the original "toothbrush handle" patent, then I can't actually use -- or practice -- my patent without infringing on the original patent.
In logical terms -- if A+B is patented, I can patent A+B+C if is is new and nonobvious. But I can't actually build A+B+C, because it infringes on the A+B patent. I can keep anyone else from building A+B+C, though...
"It's the process of getting patents granted that's the problem. Most patents get rejected the first time. However, an applicant can purchase an unlimited number of re-examinations, chagning the wording of the patent slightly every time."
And every time you change the wording, the scope of the patent gets narrower and narrower...
It's like the WAMU patent everyone was complaining about the other day. You would have to study that patent to figure out HOW to infringe on it...
"Using my plastic box to catalyse a reaction, because it is not an obvious or otherwise anticipated use, could be a non-infringing patentable process. I wouldn't be able to stop you even if I tried, because, as long as you're purchasing my boxes, you haven't infringed by making them yourself. Now, if you decided to make those same boxes yourself, you'd get nailed."
Good point about the first sale doctrine. But if we change the hypo just a bit -- say that you have the patent on the box, but refuse to make them yourself or license them, so it is a purely defensive patent -- then you would have a situation where I would get a patent that I couldn't pratice. I guess that's the point I was trying to get at.
"Even the patent attorney quoted in the article takes it (the patent) as a joke."
I noted i another post somewhere else on this topic that, in my opinion at least, the only reason for this patent at all is just to say "look mom, we're building our IP portfolio." I guess someone thought this was patentable subject matter, and not barred by prior art -- but if you look at the claim language, the patentability "window" must have been extremely narrow, as the claims are so narrow as to be virtually uninfringeable (is that a word).
"It's just not a very funny one, which just goes to show lawyers have no sense of humour."
Some lawyers have a sense of humor. It's just tough to be in a profession where a few hundred thousand bad apples ruin it for the rest of 'em.
Slashdot Mirror
" How can we expect other countries to respect our patents if we continue allow such patents to continue to be filed?"
Our patents, or our patent system?
Other countries DON'T have to respect our patents, as long as they don't try and do business in the U.S. And vice-versa. A purely U.S. company could copy an invention patented in France, and as long as the company didn't try and sell the product in France, there is no infringement. And vice-versa. That's why we have the patent cooperation treaty -- so really good inventions can get patent protection in a large number of countries at once.
But if you are talking about our patent system -- then I agree with you!
Submarine patents really aren't the problem they once were. Back in the old days (prior to June, 1995) patents were good for 17 years from the date of issue. So, you could file a patent, keep quiet about it, and then use continuation practice to keep it alive, but not issuing, for a long time. Then, you let it issue once someone else has invested in the technology, and bam -- you've got a 17 year monopoly on technology that others are using, with a "priority date" long before anyone else. It didn't happen often, but it did happen.
Nowadays (Since June 1995), patents are good for 20 years from the earliest effective filing date -- so if you tried the same thing today, it might still work, but your patent wouldn't be good for very long once it issued, since the 20 year term is measured from the FIRST application that you claim priority from.
Further, with the Patent Cooperation Treaty, if you want to file your patent in more than one country, any application is going to become public record 18 months after you file, so it is much more difficult to keep things secret for long. And even if you only file in the U.S., if you fail to request that your application remain confidential, it becomes public record by default after 18 months.
I worked for a company once that got hammered by a submarine patent -- but the reality is, the new laws really make it a lot more difficult (although not impossible) for the same thing to happen today.
When I was in law school, Judge Ware taught my civil procedure class -- he's a pretty reasonable guy.
"SCO's principal argument in opposition to AutoZone's motion is that it will suffer irreparable harm if the case is stayed."
The reason for this language is because "irreperable harm" is the standard for granting or denying an injunction, depending on which side of the fence you are on. It's a legal term of art. Nothing more than that.
It's like when you go to the doctor -- when they write up their reports, they say "patient complained of..." So, even if you aren't a whiner, they say you are a complainer -- not to put you down, but because it is a term of art...
I understand what you are saying here, but legally, patents and copyrights ARE property, and have many of the same rights as personal or real property -- such as the right to exclude others, the right to sell, assign, or give away, the right to devise the property, and so on. Just because there is no "tangible" product doesn't mean that it isn't property, at least from a legal standpoint.
And just because patents and copyrights expire also does not mean that they are not property -- there are many interests in property that expire. Leaseholds are one, as you noted above.
I think your analogies are pretty good, actually, and perhaps trespass is a better term than stealing. In fact, common law uses the term "trespass" when you damage someone else's tangible property. I just thought I would point out that intellectual property, at least legally, IS property.
"IANAL, however as I understand it, it is legal to do something like borrow a friend's cd and make a copy for yourself."
Warning: U.S. Law Follows!
That would only be legal if you didn't give the original CD back. The right to make a backup is only for the owner of the original copy, and if the owner transfers the "title" -- i.e., owenership -- of the work, then he must also trasnfer or destroy any backups. He can't keep them.
Unless you are the owner of the original disk, you are violating the copyright owner's right to control reproduction of the CD. If your buddy makes an extra backup copy and gives it to you, he's violating both the right to control reproduction AND the right to control distribution.
At least, that's the way it is in the U.S. I know Canada has different rules, but I didn't go to law school in Canada...
"The fact that Congress has been bought to all but eliminate any rights of the consumer is what we need to change."
Maybe we should blame the Europeans, and not Disney. Sure, I have no doubt that Disney lobbied long and hard for the Sonny Bono Act of 1998, which increased the duration of copyrights retroactively -- but in a sense we HAD to do it in order to meet our obligations under the Berne Convention -- which means we had to make OUR copyright term of duration match up with what the Europeans (and everyone else) were doing. In 1997, the U.S. had the shortest copyright term of any of the Western countries; after 1998, with the coming of the Copyright Term Extension Act, we are now the same.
"IANAL, but do copyright cases even have a jury (in the USA), or do they get heard by just a judge, being that copyright cases are (currently) civil cases?"
Copyright cases, like virtually all civil cases in the U.S., can be either bench trials (in front of a judge) or jury trials. Either the defendant or the plaintiff can demand a jury trial. If neither demand a jury trial, then it's a bench trial.
"Even *if* it's heard by a jury, the instructions given the jury on what precise legal issue(s) and what evidence they can take into account in that/those decision(s) is *supposed* to limit the kind of jury rejection/nullification one might hope for in these kinds of stupid legal situations."
That's true, in principle. The jury is the "finder of fact" and is given the law by the judge. The jury is not suppossed to be the "finder of law." Jury nullifaction can, and does, happen, but I am not aware of any systematic studies that show how prevalent it might be.
"If a jury *did* reject/nullify such a case, would the judge be able to declare a mistrial on the basis of the jury not following instructions, or the case appealed on that basis?"
It would unlikely be a mistrial -- and if it were, mistrials are not appealed, but are instead retried at the trial court level or dismissed.
The judge DOES have the power to "direct the verdict" -- which basically means telling the jury how they have to decide. The judge may also declare a "judgment notwithstanding the verdict," which basically is "I know what you the jury cam up with, but you guys are idiots. I declare the verdict to be..."
The problem with both of these is that the case is virtually automatically appealed in these situations -- and since most judges prefer NOT to be overturned on appeal, they will generally let the jury ruling stand, and let the appelate courts decide if the law was correctly applied or not.
Anyway, the tricky part with any IP case that is tried in front of a jury (or even in front of a judge) is trying to educate the judge and jury on what are generally very complex and subtle issues while not putting them to sleep...
"They have for a relatively short time had artificial rights in an attempt to create a middle ground"
So, 300 years is a 'relatively short time?'
http://www.copyrighthistory.com/anne.html
Vonnegut may well have written about something like this -- I don't know. But the story above is a true one. It's one of the major early populations who had significant chronic exposure to radioactive materials and radiation -- the radium dial painters were followed (and still are, for the few who may still be alive, I don't know if any are) to study the incidence of cancers and the like, since this was a group who had fairly high exposure levels where the amount of exposure could be determined relatively accurately. A lot of early models for radiation exposure were based on the studies of these women (and of uranium moners in Canada).
"If you realize that they're getting taxed based on the assumption that they're making at least a certain percentage of sales (10-15% in most places), regardless of how much you tip, you can see why customers that aren't expected to tip aren't getting good service; where else can you take money from somebody's pocket and expect them to be nice to you?"
If an employer is taxing on a certain percentage of sales, then they are breaking the law.* At one time, back when the IRS first started taxing tips, they used a percentage of sales to calculate tips (and it was like 8%, so if you were routinely getting 15%, then alsmost half of that amount was tax-free).
The law now requires servers to report their actual tips.
*One exception. If, at a particular establishment, 75% of the tipped employees agree, in writing, to abide by an IRS-run "Tip Rate Determination Agreement," then, and only then, can the taxes tipped employees pay be based on a percentage of sales. But it won't be a "flat" 10% or 15% -- the calculation is more complicated than that, and is required to more closely represent actual tip income.
"We need more laws like that"
Actually, this sanction applies to ANY case filed in federal courts -- but it really has only been widely employed in patent litigation cases.
So the law is there, but people aren't using it much...
"Once it becomes expensive to be a lawyer if you try to screw the system, many will opt to be engineers or business ppl again."
Or just be lawyers that DON'T try to screw the system!
You'd probably be suprised at just how many ways there are to get in trouble or lose your license if you are a lawyewr -- but, even with all of the rules, they are probably underused in many cases. It's a fine line between stopping "frivolous" lawsuits and making it so that lawyers are afraid to handle cases with actual merit...
"Just curious, where did your understanding come from?Techies/Engineer from Cornice."
Cool, thanks.
"I am guessing that there will be some level of infringment ( 1 line from the patent vs. the whole thing ) and that is allowing their lawyers to take the case to court."
Yeah, that could very well be. You have to have at least a "good faith" belief that there is infringement in order to avoid sanctions.
"Interesting to hear about that penalty."
FYI, here's the relevant section of Rule 11:
"(2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.
(A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2).
(B) Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned."
The scary thing (for attorneys, at least) is that the court can order that the Rule 11 sanctions be paid by the attorney and not allow the company that hired the attorney to indemnify the attorney!
Unless Seagate also holds these patents in Canada or Mexico as well...
The Patent Cooperation Treaty makes it fairly straightforward (although expensive) to file for a patent on an invention in virtually every country where you might need to enforce it, all at once!
"My understanding is Cornice is not infringing."
Just curious, where did your understanding come from? All of the news outlets just say Seagate is accusing Cornice of infringing, nothing about other deals.
Maybe this really is a ploy to force Cornice into cross-licensing, maybe not -- but accusing someone of infrigement without having a strong basis for believing there is infringement can be heavily penailzed (and often is) under FRCP Rule 11.
"America ignored British patents while it was building its industrial base."
But did the British inventors hold U.S. patents on the technology? Remember, patents are ntaional in scope -- a U.S. patent can only be used against infringement in the U.S., or by a U.S. company.
"The basic fact of the matter is that innovation happens anyway. It's human nature. Patents just allow it to be controlled and channelled by the establishment. The Big Lie is that patents help or reward the small inventor. Maybe they would if only individuals could hold patents, I don't know - that's another thing that hasn't been tried much."
Patents may or may not reward the small inventor -- but a lot of patents, especially biotech-type patents, probably couldn't be done without a large investement in infrastructure, and no company is going to invest in infrastructure if they can't get a return. I guess we could have the government or universities do the research, but then it comes out of our pockets in taxes...
"Japan has a use-it-or-lose-it patent policy."
A number of patent systems have this policy, and others have a use-it-or-license-it policy.
"Basically, you're arguing a point I never made and making up FUD."
Maybe I misread your earlier post, but I got the impression that you were implying that licensing fees were "automatic." Didn't mean to argue a point you never made.
"I call BS on this. Got any cites?"
No cites. Look it up yourself. Look up the concepts of laches and equitable estoppel.
"If the court decides that Cornice is infringing, they will be made to pay licensing fees for all sales before and after the filing of the suit."
Not if it can be shown that the patent owner "sat on their rights" in order to allow damages to accrue.
You do realize that virtually every other country ALSO has patent laws of various types -- some stricter than the U.S., some looser, but most countries have a patent system of one type or antoher.
At least the U.S. has an enforcement mechanism for patents, unlike India or China...
"If Cornice is really infringing on the patents, they will eventually have to pay licensing fees to Seagate, so the more they sell the more Seagate will benefit."
And how do you determine whether Cornice is "really infringing?"
You got to go to court.
Cornice isn't going to pay licensing fees to Seagate because they realize they are "really infringing" or because Seagate "feels" they are infringing -- they will pay licensing fees when they either get dragged into a lawsuit and decide that it's not worth a fight, or fight it and lose.
"so the more they sell the more Seagate will benefit"
One other thing -- if Seagate believes that Cornice is infringing, they are not allowed to let Cornice "rack up" licensing fees -- if they wait too long, they may lose their right to some or all of their rightful fees.
"If that guy who chased you to the police station *had* gotten his hands on you, there's no way in hell you'd win with self-defense, even *if* your candy-ass won the fight. Because *you* started the fight. *You* got out of your house and followed a complete stranger to his house (is that legal?-- stalking?). *You* started acting crazy toward him with your horn-honking. *You* were a willing participant in whatever shit was going to go down next-- just because you hadn't thought it through doesn't mean you weren't."
Just one point -- mere words -- even honking your horn or flipping someone off -- is inadequate "provocation" to nullify a self-defense argument.
Now, if you were to pull a knife or gun on someone, well, then you lose the right to sell defense. But words -- no matter how annoying or offensive -- are NEVER sufficient provocation for one to lose their right to self-defense.
Now, I agree that someone who does this sort fo thing probably deserves to get thier ass beat, and would likely get throw in jail because the cops don't want to have to sort this sorta thing out, but if you ended up in court, you could still prevail on self-defense unless you did more than yell and scream and annoy the other guy.
The problem everyone is hav ing here is that "obvious" doesn't mean "obivous". Sure, maybe it seems obvious to a user, but obvious in the context of patentability has a very specific definition:
From the Manual of Patent Examining Procedure, section 706.02(j):
"To establish a prima facie case of obviousness, three basic criteria must be met. First, there must be some suggestion or motivation, either in the references themselves or in the knowledge generally available to one of ordinary skill in the art, to modify the reference or to combine reference teachings. Second, there must be a reasonable expectation of success. Finally, the prior art reference (or references when combined) must teach or suggest all the claim limitations. The teaching or suggestion to make the claimed combination and the reasonable expectation of success must both be found in the prior art and not based on applicant's disclosure. In re Vaeck, 947 F.2d 488, 20 USPQ2d 1438 (Fed. Cir. 1991). See MPEP 2143 - 2143.03 for decisions pertinent to each of these criteria."
The basic notion is that there must be some prior art, or combination of prior art, that "teaches" EACH AND EVERY claim element in the later patent -- PLUS there has to be a "motivation" to combine them. Just because there is prior art, or because something seems "obvious" to a user, doesn't mean that it meets the LEGAL definition of "obvious" relevant to the USPTO.
Just thought I would mention that...
"Basically, one just needs a more specific patent, than an existing one, thus there is no infringement. Do a search and see how many patents there are out there for mousetraps..."
That's only true if the "new" handle doesn't infringe on the "original" handle. If someone patents a "toothbrush handle" and I later invent "toothbrush handle with kryptonite grip" or something, I can certainly patent my new toothbrush handle if it otherwise meets all of the requirements for patentability.
However, if the underlying "handle" part of my invention is actually covered by the original "toothbrush handle" patent, then I can't actually use -- or practice -- my patent without infringing on the original patent.
In logical terms -- if A+B is patented, I can patent A+B+C if is is new and nonobvious. But I can't actually build A+B+C, because it infringes on the A+B patent. I can keep anyone else from building A+B+C, though...
"It's the process of getting patents granted that's the problem. Most patents get rejected the first time. However, an applicant can purchase an unlimited number of re-examinations, chagning the wording of the patent slightly every time."
And every time you change the wording, the scope of the patent gets narrower and narrower...
It's like the WAMU patent everyone was complaining about the other day. You would have to study that patent to figure out HOW to infringe on it...
"Using my plastic box to catalyse a reaction, because it is not an obvious or otherwise anticipated use, could be a non-infringing patentable process. I wouldn't be able to stop you even if I tried, because, as long as you're purchasing my boxes, you haven't infringed by making them yourself. Now, if you decided to make those same boxes yourself, you'd get nailed."
Good point about the first sale doctrine. But if we change the hypo just a bit -- say that you have the patent on the box, but refuse to make them yourself or license them, so it is a purely defensive patent -- then you would have a situation where I would get a patent that I couldn't pratice. I guess that's the point I was trying to get at.
"Even the patent attorney quoted in the article takes it (the patent) as a joke."
I noted i another post somewhere else on this topic that, in my opinion at least, the only reason for this patent at all is just to say "look mom, we're building our IP portfolio." I guess someone thought this was patentable subject matter, and not barred by prior art -- but if you look at the claim language, the patentability "window" must have been extremely narrow, as the claims are so narrow as to be virtually uninfringeable (is that a word).
"It's just not a very funny one, which just goes to show lawyers have no sense of humour."
Some lawyers have a sense of humor. It's just tough to be in a profession where a few hundred thousand bad apples ruin it for the rest of 'em.