A 2nd photographer see this photo (on the 1st photographers website) takes a hamburger from the same food-chain, and shoots a drastically similar photograph (the pickle is on the other side).
There has been actual copying and this is a breach of the first photographer's copyright.
Actually, this isn't correct. The first photographer owns the copyright in HIS photo, the second photographer owns a copyright in HIS photo -- he hasn't copied the first photographer's photo, so there is no copyright infringement. The first photographer does not "own" or otherwise control the subject matter of his photos, only the photos themselves. Just like Ansel Adams (if he were still around) wouldn't be able to keep other photographers from taking photos of the Yosemite Valley -- he could keep others from copying HIS photos, but he couldn't keep someone else from taking their own photos, even if they were taken from exactly the same vantage point, same camera, same time of day, etc.
In this case, the second guy isn't copying the first guy's photo, so there is no copyright infringement. The first guy has a copyright in his photo -- he does not own a copyright on the hamburger. The second guy's photo of the hamburger -- even if done in an identical manner -- is NOT a copy of the first guy's photo, and is not copyright infringment.
Of course, from a practical perspective, if the photos are indeed identical, it might be tough for the second guy to prove he took the picture himself! But taking your own photo -- even if the subject matter of the photo is the same, or nearly so, as that of another's photo -- is not, in an of itself, copyright infringement.
Now, if the second photographer was taking a photograph of something where the subject matter itself was copyrighted -- like taking a photo of a piece of contemporary art -- that could very well be infringing on the artist's copyright in their artwork. But just because somebody photographs something doesn't give them the right to keep others from taking an identical photograph.
It's just the way the caselaw has turned out. I'm not sure that anyone has given this a lot of thought in the judiciary -- they have a consistent theory, but it's not really a great theory, in my opinion. Basically, the rule is that you can make and retain a copy of a CD you own, so long as both the original and copy remain in your control at all times (can't lend out the copy, for example, unless you lend the original as well. And can't keep the copy if you give away the original). The theory goes, if you send a digital file across the Internet, it is out of your direct control while it is enroute to wherever it may be going -- this is how they got rid of MyMP3.com, and this is also part of reasoning in Napster and other cases why downloading is illegal.
If your cd drive is broken and you have net access, why is downloading a cd you own forbidden?
It's just the law. I agree 100%, it's a stupid law -- but currently it IS the law. That's basically what MyMP3.com was -- you ripped your CD's up to a host, and then could listen to the MP3's anywhere. Only you could access the CD's you ripped (I believe), and you couldn't access stuff you didn't rip, so it's similar to the situation you described -- and it was found to be illegal under current copyright law, and the website was shut down.
Also, are the "uploaders" really uploaders or are they people who put files in a shared folder that can be accessed? I would equate that with leaving your home unlocked. Does the *IAA have the right to tell us how to secure things we own?
Two points. First, people put things in shared folders knowing they will be accessed -- it's not like the P2P programs sneak into your hard drive to find files to share, you have to allow them access. If you had a garage full of beer, and allowed teenagers to access it freely, you would be liable for providing minors with beer -- that's probably a closer analogy. If P2P or other software actually searched your hard drive for stuff to share without you permission, then I think your analogy to the unlocked door is a closer analogy.
But even then, in most parts of the U.S., if you have a gun and leave it somehow unsecured in your house, and a kid gets in to your house (illegally) and takes the gun and shoots himself or someone else, you could be liable. So there is precedent even for that analogy. Note that I am not comparing downloading songs with shooting people, I'm just usinig this as a sort of property-rights comparison.
Second, although you own the physical CD, you don't own the data on the CD -- you just have a license to use it. Again, 'm not arguing whether or not this is right or wrong, but it is how the current copyright system is set up. Because you don't own the data, the real owner (the ones who licensed you to use the music, the RIAA in this case) probably has more authority to tell you how to store your music. They can't tell you to keep the CD itself locked up, and don't really care if your CD gets stolen, but they do have an interest in the data itself floating around freely. That's another reason why your analogy isn't perfect when it comes to copyrights and the like.
Again, I'm not saying the laws are right, or shouldn't be changed -- they should be, in many cases -- but that's sort of how the law works currently, in the U.S. at least.
if I own a Korn cd I can download it as much as I want because I have the rights to
But that isn't. Downloading a song is NOT equivalent under Napster and the other caselaw to creating a backup. Under current caselaw, there is no legal difference between uploading and downloading.
However, just because I own a cd does not give me the right to freely give the music out to others, thus is why they are suing the uploaders and not the downloaders.
Correct, but if they aren't suing downloaders, it's a choice on their part -- they could sue the downloaders, under current law the downloaders are just as liable as the uploaders.
I wish I could go to Syria. I actually had tickets for a Syria - Jordan - Lebanon vacation last summer, but the combination of Ramadan (the only time I could get off of work was during Ramadan) and that crazy Hezbollah - Israel thingie made me decide to return the tickets. I went to Greece and Romania instead.
Exactly, you have to order when you buy the ticket.
I usually order the muslim meal, if offered. One, because it's usually a LOT better than the regular options (often it's chicken kabobs and couscous or something like that), second, hopefully it will confuse someone somewhere...
Of course, I may end up getting extraordinarily rendited somewhere, so maybe I should rethink my meal choices...
Christ in a sidecar. If I had a nickel for every time I wished I could access my email account from somewhere other than the computer lab back in the mid 80's, I'd have enough money to pay a goon to knock some sense into your head. Mere portability of an existing system is not a novel fucking innovation, you dumbshit.
Is the ad hominem really necessary?
The NTP patents don't cover the broad "portable email access," they cover a specific functionality that allows portable email access. Just thinking something is a good idea is NOT prior art under the law.
You don't even understand the problem with the current system, do you. The problem RIM had was that the legal test to disprove novelty requires documentation (generally from a previous patent), and people don't waste time writing down and meticulously documenting the bloody obvious. This is why (as the GP poster said) the current test is rubbish.
I understand the current system, warts and all, very well, thank you. My problem isn't that the current system is perfect -- it isn't, not by a long shot -- but my problem is, what's a better way to do it? I'm not going to repeat everything I've written in other posts, but there are a lot of things to consider -- hindsight being the biggest one, biases amongst "experts" in the field, who is an "expert" that is qualified to opine on whether or not an invention is "obvious," etc. There might be a better test out there -- personally, I like the (what are known as) the Deere factors for obviousness -- evidence of longfelt need, acceptance by the marketplace, failed attempts by others -- but those aren't what the law uses to determine legal obviousness, they are just factors that tend to support or reject obviousness in a certain case.
The problem is, unless the law itself is changed (and maybe it needs to be), non-obviousness is a legal requirement for a patent. And as long as it is a requirement, there need to be tests to determine what is, and what is not, obvious. The current test is an attempt to determine obviousness while trying to minimize the impact of hindsight. Here's a paper you might (or might not) find an interesting read: http://papers.ssrn.com/sol3/papers.cfm?abstract_id =928662
Not quite. They're obliged to disclose anything of which they're aware -- but they're not required to do any searching to find anything of which they weren't already aware. At least from what I've seen, most cite things they can't reasonably avoid (e.g. their own earlier patents, papers they've written, etc.) but darned little else. I've seen an "inventor" claim that he'd never read the data sheet for a part he used (he was just such a genius, he knew the pinout without looking...). The data sheet referenced an app note that almost directly disclosed his "invention"...
Absolutely correct, and a point I should have made myself. However, many inventors do exactly the opposite of what you describe -- many try and push through as much stuff as they can find, because once an examiner has seen a reference, the presumption, should litigation arise down the road, is that the examiner looked at the reference (whether he actually did or not), and therefore the presumption is that the reference is NOT an invalidating reference. Basically, some patentees will try and "wash" art through the patent office so it can't be used as art later on down the road in litigation.
They can only lose much of anything if it can be shown that they really were aware of the material. If most do a better job than average, either there's a lot of skew in that average, or else you're using "average" a bit differently than I learned it in statistics class (or maybe my memory's going bad after all these years -- though I still very clearly remember a girl who always showed up in some of the tightest jeans I've ever seen...)
Unfortunately, I have no personal recollection of the tight jeans...
What I meant by this was most inventors take their oath (their oath of disclosure) seriously, and most inventors (that I've worked with) are pretty forthcoming with art in their applications.
Having previously been an expert witness, and having declined the umm...honor in at least one other case, I think I can say with reasonable certainty that I'd decline in a case like that. Come to think of it, nobody's asked me to be an expert witness for a while though...
I've not seen an expert say anything that was simply, proveably wrong, but I have seen experts say the opposite of what they themselves have previously written in academic papers. I've also seen a Professor of Electrical Engineering who couldn't remember what he meant be the term "active device" in his OWN patent on an amplifier device...
That's why the courts are smart to not trust experts...
BTW start going along with what your lawyers ask you to say, you'll make more money!
On the other hand, you have patents on portable electronic devices for sending and receiving email--- that's bloody fucking obvious, and not just in hindsight. Portable email was not a solution waiting for an insightful genius to discover it, but a solution waiting for technological progress to make it feasible.
If this is your test for obviousness, then NOTHING is patentable, because everything is just "a solution waiting for technological progress to make it feasible." Fortunately (or unfortunately, depending on your position in this matter), our patent system doesn't just look at "ideas," it looks at the idea plus a "reduction to practice" -- in other words, the guy that says "I wish I could take my email with me" doesn't get a patent, but the guy that actually figures out HOW to do it does. We give patents based onthe invention of the "technological progress" that makes the solutions feasible.
As noted in another post, the first NTP patent was filed in 1991 -- was a portable device for email "bloody fucking obvious" in 1991?
(BTW, just for the sake of disclosure, I have no love for NTP, and actually wrote a brief in support of RIM at the CAFC, and think RIM got fucked -- but not because of NTP's patents being obvious, but for other reasons, specifically the extraterritorial application of U.S. patent laws.)
Saying they aren't obvious doesn't make it so. Are you really claiming to be so stupid as to say that if someone showed you a wireless computer and asked you what it might be used for, you wouldn't think of e-mail?
If you asked me today, of course I would. But in 1991, when the first of the NTP patents was filed, I don't know.
It doesn't matter if the NTP patents are obvious now -- the key is whether or not they were obvious when they were filed, in this case, back in 1991.
IMO, this is one of the real sticking points: right now, when somebody applies for a patent, they have to declare that they think it's novel. The patent examiner then looks to see if it look obvious (to them). The standard, at this point, however is only that the patent applicant has to show that the "preponderance of the evidence" is in their favor. Oh, and patent examiners virtually never look at anything except older patents and applications.
Well, there is the affirmative duty for the patentee to disclose anything that might be material to patentability. Whether or not most patentees actually do a good job of this or not is an open question -- but considering the penalties for not disclosing material art (loss of the patent, maybe loss of a job to the patent agent/attorney is the Office of Enrollement and Discipline finds their failure to disclose egregious enough), I think that most patentees to a better than average job of disclosure.
When a patent is challenged, however, that changes: the challenger now has to show "clear and convincing evidence" that the patent is really obvious after all. This means, from a legal viewpoint, that the patent is supposed to be considered valid, even if there's a fairly strong reason to believe otherwise.
If you didn't have the "clear and convincing" standard, then the patent would have no presumption of validity, and we would have a European-style patent system. Maybe that's a better system, I don't know -- I don't think so, but that's just my opinion. I guess we could switch to a "clear and convincing" standard for a patentee to overcome an obviousness rejection (or other type of rejection), but that would make a LOT more work for the examiners, and would increase the costs of obtaining a patent significantly. Maybe that's a good thing, maybe not -- but something to consider, I suppose.
To add to that, nearly every patent office (definitely including the US PTO) gets part or all of its funding from patents that it issues. Worse still, examiners are rated (partly) in terms of the number of applications they examine. Neither of these really encourages patent examiners to do be as thorough as possible and reject all patent applications that really should be (though, in fairness, given their workload, I'm frequently impressed at how good of a job patent examiners do anyway).
I think given the conditions the patent office works under, they do a pretty decent job.
The thing people often forget (or don't realize) it that the issued patent may be far narrower than either the original application or the written specification. Although it's true that most patents applications that are taken all the way through the examination process eventually get issued, many are issued as only a shadow of their original selves, and many issued patents have claims that are so narrow it would take a patent attorney to figure out how to infringe them in the first place! Although a lot of patents get allowed, I'm not sure that necessarily translates into a lot of bad patents being allowed.
The motivation to combine must be a bit more than "motivation" as most people would think of it. Most of us would think of things like "it saves money" or "it makes the product smaller/lighter/more dependable" -- but when you're trying prove a patent is obvious, you're typically looking at something like combining two research articles, and the motivation to combine needs to be either a direct reference from one article to the other, or a third article that references both the ones you're looking at.
Agreed. I wasn't completely clear in my post. But this high standard for motivation to combine is a result of trying to overcome obvious due to hindsight. Maybe it doesn't do a good job, but that's the reason for it. Everything looks obvious in hindsight.
Instead, it's an almost purely mythical construct, with total awareness of all existing products and publications, and the ability to understand them, but essentia
Nevertheless, the fact remains that they ARE obvious. (Anyone who thinks otherwise must have an IQ in the lowest quartile.) Therefore, the current test is rubbish.
To whom? Just saying so doesn't make it so. If you have evidence showing that the NTP patents are really obvious, then maybe you should have tried to get hired on as a consultant to RIM...
Yes they both have extensive articles on Wiki. Although I may have taken the liberty to combine the two termns, but if you really don't know... Read the articles.
I know exactly what both are. Submarine trolls may have been an issue at one point (see my earlier post), but are really not an issue any more. Even the wikipedia article is clear on that. My point was basically that submarine patents aren't really an issue any more (if they ever really were), and certainly aren't a reason now to mess with the obviousness standard.
The point is that Patent system doesn't require you to actually make an invention, but rather have a description on what these invention does. These things can often be very vague and people have been known to patent the wheel on occasion shows a big flaw in the Patent system.
You do realize that the wheel patent was in Australia, right?
Yes, sometimes weird things do get through the patent office. But consider this -- there are many thousands of patents filed every week with the patent office. The patent office is a profit center -- they bring in far more money than they have a budget -- but congress siphons off most of the patent's office revenues for other projects, and leaves the patent office with far less staff and resources than they would have if congress left the patent office to support itself. Generally speaking, the patent office does a pretty good job with what it has.
As far as the requirements for a patent go, a patent must make an "enabling disclosure" -- in other words, one of "ordinary skill" in the relevant art must be able to take the patent and, without "undue experimentation," practice the patent. What is sufficient to provide an "enabling disclosure" is different from art area to art area, and different from invention to invention -- but it is not generally true that a vague and hand-wavy disclosure is sufficient to result in an issued patent. It may happen sometimes, but it doesn't seem to happen very often.
And when it does, such patents can be successfully challenged in court.
Indeed, the test of obviousness should be whether someone reasonably skilled at the art would have arrived at a similar solution given the same problem. If the answer is "yes", it is obvious EVEN IF THE PROBLEM ITSELF WAS NOT OBVIOUS OR COMMON. Of course, by this standard, 99% of patents should not be valid. 99% of patents should not be valid.
Just curious, why do you believe 99% of of patents should not be valid?
How do you propose to perform your test? If others "skilled in the art" already know that there is a solution, then you are injecting hindsight into the equation, and EVERYTHING is obvious once you have hindsight.
As for the question of why someone else didn't think of it first, I can't count how many patented designs I've seen and said "I can't believe they got a patent on that. I had that idea [n] years ago, but A. didn't have any financing to develop it, B. felt that the technology hadn't quite matured to the point that it was practical/usable, or C. didn't think there was a big enough market for it. Half the time, I've had somebody suggest the idea TO ME out of the blue, then said "hey, I thought of pretty much the same thing [n] years ago", THEN two or three years later, found out somebody turned it into a product and patented it.
The purpose of patents, as is oft repeated, is to advance the useful arts (whether it does a good job or not is not really the point here, though!). A patent, for better or worse, at least makes public the invention, so others can see it, benefit from it, and build upon it -- maybe not immediately, but eventually. If you don't bother to tell anyone about your inventions, or don't bother to publish papers or put up a webpage or whatever, then the public is not benefiting from your invention, so you are not entitled to a patent (under current law). Someone else who comes up with the idea, dilligently works to develop it, and then gives the knowledge up to the public IS entitled to a patent.
But just because you claim to have thought of something first doesn't make another's invention obvious. How do you prove that you came up with it first? Is the patent office or the courts just supposed to take your word for it?
If you really want to keep others from patenting something you invented "first," put up a webpage, publish a paper, let the world know about your "obvious" invention -- that's how you can do this. Coming back 10 years later when someone else is successful and sitting back and complaining that it was "obvious" because you invented it "first" doesn't do any good at all.
Well most of these people actually do think of the solution and actually create a working product, but then a Submarine Patent Troll comes out of the woodwork telling them that their actual invention violates their vague patent that they never bothered to bring to market or tell anyone else about.
What is a "submarine patent troll?" The 1995 Amendments to the patent laws pretty much ended the endless continuation practice that Lemelson, the original "submarine patent guy" used to his advantage.
BTW, patents are public record -- they are all publicly available on the USPTO website. Should a patent holder have to go out and notify any potential infringers before they begin developing a product?
That is the key problem here... Not that it is just obvious, but they are going after people who do come up with the idea themselves rather than those who have stolen the idea from them.
How do you propose we sort out the "true" infringers who are "stealing" an idea from those who came up with the idea independently? What test to you propose to determine what independent development is? How far "back" in the development stream do you need to go to show "independence?"
A cotton gin is an invention, and should be patentable. Mechanically removing seeds from cotton is a problem, and shouldn't be patentable.
But isn't a cotton gin just a "method and apparatus for removing seeds from cotton?" Where do you draw the patentability line? Should an apparatus be patentable, but not a method?
That, more often than not, is not so difficult as you might imagine. Take, for instance, the patent suit against RIM by NTP. NTP contends that they have a valid set of patents, but when you look at how email was forwarded to early paging devices, their patent looks blatantly built upon quite obvious technological steps rather than something new and unobvious.
Most, if not all inventions, are based on technological steps that look quite obvious in hindsight. The trick it to figure out what steps are obvious without hindsight -- that's the point of the obviousness test.
RIM had ample opportunity to show that the emailing and computing world would have though that NTP's patents were obvious before the patents were filed -- in fact, RIM had more opportunities than most companies get to try and show the patents invalid. They failed, over and over. Maybe the test is bad, but under the current test, NTP's patents were NOT obvious.
This, no matter what bumps might arise, will help to even out the patent trolls, and stop stupid patents.
The eBay v. MercExchange ruling changing the CAFC rules for granting permanent injunctions will do more to curb the problem of patent trolls than will changing obviousness rules.
No test is going to make everyone happy. The current obviousness test is an attempt to avoid the "duh" type of hindsight obviousness (every inventino looks obvious in hindsight) while protecting against "real" obviousness (where all of the pieces were clearly known to those in the art, just nobody had yet bothered to write an article on or patent the combination). No matter where you draw the line, there will be problems. Maybe the test now results in too many obvious patents. But another test may end up not giving patent protections to truely deserving inventions. It's a tough situation.
Hopefully, the court won't go so far as to create a new standard, just rule that the current one is not Constitutional. That would force Congress to write a new patent standard, which is who should be deciding the issue. Patents haven't become high viz enough to be a campaign issue, but I'd love to see an advisory panel of both industry and academic representatives formed to create a better system, and then have Congress vote on that.
I'm not convinced that our congresscritters would be able to come up with any more competant test for obviousness than the one we already have!
However, there is a patent reform act making the rounds through congress right now. I haven't looked at it recently, but I remember when it was first floated, there were a few eye-openers in the act, including (if I remember correctly) a shift from U.S. style "first to invent" to a European-style "first to file" -- I don't remember if a switch to "absolute novelty" was also included. Also, a very strict limitation on continuation and divisional practices, a limit on the number of claims, and a requirement that all patent applications be made public 18 months after filing (current is generally only patents that are also being filed in foreign countries are published after 18 months).
Making it no longer necessary for patents to be non-obvious?
Since there is already a statute that requires patents to be nonobvious -- 35 U.S.C. 103 -- it's unlikey that the courts are going to go in this direction.
Shifting the burden of proof so that the patenter (not the alleged infringer) has to prove that the patent is non-obvious? I thought this was legally the status quo, though the quality of some patents would suggest practice differs for software...
Once a patent is issued, it is presumed valid -- which means, it is presumed to be patentable subject matter (35 U.S.C. 101), novel (35 U.S.C. 102), nonobvious (35 U.S.C. 103), and enabled (35 U.S.C. 112). It is up to the person challenging the validity to show why a patent isn't patentable, isn't novel, is obvious, or is not enabled.
I guess they could be trying to move away from the presumption of validity, in which case a patent owner would need to prove that the patent WAS valid in order to assert the patent (the opposite of what we have now). Maybe that's the way we want to go, to a European-style patent system. Personally I don't think it's the right way to go, but what do I know.
Replacing the test with one that better accomplishes the same goal? (Somewhere there must be details of how this is tested, and they're not good?) I guess this seems most likely, given this quote: "I would say its [the lower court's?] test is meaningless," said Scalia. "It doesn't add anything to the question, 'Would a person of ordinary skill in this field have conceived of this idea?' "
To show that an invention is "obvious," you need essentially need to show one or more pieces of prior art that, in combination, "anticipate" or disclose the invention seeking to be patented, and you must show some "motivation to combine" the art into a single invention. The criticisms typically focus either on the fact that the art must meet the standards for prior art -- which usually means a written record -- or that the motivation to combine factor is too nebulous.
It is a tricky test; however, the test is an attempt to balance "hindsight" against wha is truely obvious. The problem is, almost every invention is "obvious" in hindsight -- the current obviousness test is an attempt to weed out hindsight.
I strongly suspect the ruling in this case is going to be unanimous against these obvious item patenters.
Which is all fine and good if they simply find this particular patent obvious. But if they are going to change the test for obviousness, then I wonder what it might be? The justices surely didn't give any insight into what the proper test for obviousness should be, they only said they didn't like the current test.
Hindsight is a real problem -- almost every invention is obvious in hindsight. The trick is to figuring which inventions are obvious before anyone else sees how to do it.
Is YouTube an ISP? Because the safeharbor for takedown requests only applies to ISP's, and ISP-like entities. Maybe it is, I don't know -- but depending on how much control they assert over what gets posted, it may be a contentious point.
And a TOS or release or anything like that isn't going to protect YouTube -- or anyone -- if they are really liable under copyright law. You can't contract away your liability like that.
Technically, drug transactions and other illegal transactions ARE taxable -- but since they rely on self-reporting, or, as the other poster noted, the purchase of tax stamps, not many taxes are collected this way...
In the U.S., that's how it used to be -- if you rolled over any gains into a new house, you didn't pay taxes on it, but any amount NOT rolled over -- like if you bought a less expensive house -- would be taxed.
The rules are different now. Nowadays, if you live in a house as your primary residence for at least 2 of the last 5 years before the sale, then the first $250,000 of the gain is tax free for each taxpayer (so a married couple, or two partners, could deduct $250,000 each, for example). Anything above that is taxed as capital gains, whether you roll it into another house or not. Ditto if you sell without living in the house as your primary residence for 2 years out of the preceeding 5.
So, you can't defer the taxes anymore, but you also can take a pretty big chunk out tax-free if you want, so there are pluses and minuses to the new scheme.
Slashdot Mirror
A 2nd photographer see this photo (on the 1st photographers website) takes a hamburger from the same food-chain, and shoots a drastically similar photograph (the pickle is on the other side).
There has been actual copying and this is a breach of the first photographer's copyright.
Actually, this isn't correct. The first photographer owns the copyright in HIS photo, the second photographer owns a copyright in HIS photo -- he hasn't copied the first photographer's photo, so there is no copyright infringement. The first photographer does not "own" or otherwise control the subject matter of his photos, only the photos themselves. Just like Ansel Adams (if he were still around) wouldn't be able to keep other photographers from taking photos of the Yosemite Valley -- he could keep others from copying HIS photos, but he couldn't keep someone else from taking their own photos, even if they were taken from exactly the same vantage point, same camera, same time of day, etc.
In this case, the second guy isn't copying the first guy's photo, so there is no copyright infringement. The first guy has a copyright in his photo -- he does not own a copyright on the hamburger. The second guy's photo of the hamburger -- even if done in an identical manner -- is NOT a copy of the first guy's photo, and is not copyright infringment.
Of course, from a practical perspective, if the photos are indeed identical, it might be tough for the second guy to prove he took the picture himself! But taking your own photo -- even if the subject matter of the photo is the same, or nearly so, as that of another's photo -- is not, in an of itself, copyright infringement.
Now, if the second photographer was taking a photograph of something where the subject matter itself was copyrighted -- like taking a photo of a piece of contemporary art -- that could very well be infringing on the artist's copyright in their artwork. But just because somebody photographs something doesn't give them the right to keep others from taking an identical photograph.
I believe you, but why is this the case?
It's just the way the caselaw has turned out. I'm not sure that anyone has given this a lot of thought in the judiciary -- they have a consistent theory, but it's not really a great theory, in my opinion. Basically, the rule is that you can make and retain a copy of a CD you own, so long as both the original and copy remain in your control at all times (can't lend out the copy, for example, unless you lend the original as well. And can't keep the copy if you give away the original). The theory goes, if you send a digital file across the Internet, it is out of your direct control while it is enroute to wherever it may be going -- this is how they got rid of MyMP3.com, and this is also part of reasoning in Napster and other cases why downloading is illegal.
If your cd drive is broken and you have net access, why is downloading a cd you own forbidden?
It's just the law. I agree 100%, it's a stupid law -- but currently it IS the law. That's basically what MyMP3.com was -- you ripped your CD's up to a host, and then could listen to the MP3's anywhere. Only you could access the CD's you ripped (I believe), and you couldn't access stuff you didn't rip, so it's similar to the situation you described -- and it was found to be illegal under current copyright law, and the website was shut down.
Also, are the "uploaders" really uploaders or are they people who put files in a shared folder that can be accessed? I would equate that with leaving your home unlocked. Does the *IAA have the right to tell us how to secure things we own?
Two points. First, people put things in shared folders knowing they will be accessed -- it's not like the P2P programs sneak into your hard drive to find files to share, you have to allow them access. If you had a garage full of beer, and allowed teenagers to access it freely, you would be liable for providing minors with beer -- that's probably a closer analogy. If P2P or other software actually searched your hard drive for stuff to share without you permission, then I think your analogy to the unlocked door is a closer analogy.
But even then, in most parts of the U.S., if you have a gun and leave it somehow unsecured in your house, and a kid gets in to your house (illegally) and takes the gun and shoots himself or someone else, you could be liable. So there is precedent even for that analogy. Note that I am not comparing downloading songs with shooting people, I'm just usinig this as a sort of property-rights comparison.
Second, although you own the physical CD, you don't own the data on the CD -- you just have a license to use it. Again, 'm not arguing whether or not this is right or wrong, but it is how the current copyright system is set up. Because you don't own the data, the real owner (the ones who licensed you to use the music, the RIAA in this case) probably has more authority to tell you how to store your music. They can't tell you to keep the CD itself locked up, and don't really care if your CD gets stolen, but they do have an interest in the data itself floating around freely. That's another reason why your analogy isn't perfect when it comes to copyrights and the like.
Again, I'm not saying the laws are right, or shouldn't be changed -- they should be, in many cases -- but that's sort of how the law works currently, in the U.S. at least.
You can legally make backups of any cd you own
That is 100% correct.
if I own a Korn cd I can download it as much as I want because I have the rights to
But that isn't. Downloading a song is NOT equivalent under Napster and the other caselaw to creating a backup. Under current caselaw, there is no legal difference between uploading and downloading.
However, just because I own a cd does not give me the right to freely give the music out to others, thus is why they are suing the uploaders and not the downloaders.
Correct, but if they aren't suing downloaders, it's a choice on their part -- they could sue the downloaders, under current law the downloaders are just as liable as the uploaders.
I wish I could go to Syria. I actually had tickets for a Syria - Jordan - Lebanon vacation last summer, but the combination of Ramadan (the only time I could get off of work was during Ramadan) and that crazy Hezbollah - Israel thingie made me decide to return the tickets. I went to Greece and Romania instead.
Maybe I can get back to Syria next year...
Exactly, you have to order when you buy the ticket.
I usually order the muslim meal, if offered. One, because it's usually a LOT better than the regular options (often it's chicken kabobs and couscous or something like that), second, hopefully it will confuse someone somewhere...
Of course, I may end up getting extraordinarily rendited somewhere, so maybe I should rethink my meal choices...
Christ in a sidecar. If I had a nickel for every time I wished I could access my email account from somewhere other than the computer lab back in the mid 80's, I'd have enough money to pay a goon to knock some sense into your head. Mere portability of an existing system is not a novel fucking innovation, you dumbshit.
d =928662
Is the ad hominem really necessary?
The NTP patents don't cover the broad "portable email access," they cover a specific functionality that allows portable email access. Just thinking something is a good idea is NOT prior art under the law.
You don't even understand the problem with the current system, do you. The problem RIM had was that the legal test to disprove novelty requires documentation (generally from a previous patent), and people don't waste time writing down and meticulously documenting the bloody obvious. This is why (as the GP poster said) the current test is rubbish.
I understand the current system, warts and all, very well, thank you. My problem isn't that the current system is perfect -- it isn't, not by a long shot -- but my problem is, what's a better way to do it? I'm not going to repeat everything I've written in other posts, but there are a lot of things to consider -- hindsight being the biggest one, biases amongst "experts" in the field, who is an "expert" that is qualified to opine on whether or not an invention is "obvious," etc. There might be a better test out there -- personally, I like the (what are known as) the Deere factors for obviousness -- evidence of longfelt need, acceptance by the marketplace, failed attempts by others -- but those aren't what the law uses to determine legal obviousness, they are just factors that tend to support or reject obviousness in a certain case.
The problem is, unless the law itself is changed (and maybe it needs to be), non-obviousness is a legal requirement for a patent. And as long as it is a requirement, there need to be tests to determine what is, and what is not, obvious. The current test is an attempt to determine obviousness while trying to minimize the impact of hindsight. Here's a paper you might (or might not) find an interesting read: http://papers.ssrn.com/sol3/papers.cfm?abstract_i
Not quite. They're obliged to disclose anything of which they're aware -- but they're not required to do any searching to find anything of which they weren't already aware. At least from what I've seen, most cite things they can't reasonably avoid (e.g. their own earlier patents, papers they've written, etc.) but darned little else. I've seen an "inventor" claim that he'd never read the data sheet for a part he used (he was just such a genius, he knew the pinout without looking...). The data sheet referenced an app note that almost directly disclosed his "invention"...
Absolutely correct, and a point I should have made myself. However, many inventors do exactly the opposite of what you describe -- many try and push through as much stuff as they can find, because once an examiner has seen a reference, the presumption, should litigation arise down the road, is that the examiner looked at the reference (whether he actually did or not), and therefore the presumption is that the reference is NOT an invalidating reference. Basically, some patentees will try and "wash" art through the patent office so it can't be used as art later on down the road in litigation.
They can only lose much of anything if it can be shown that they really were aware of the material. If most do a better job than average, either there's a lot of skew in that average, or else you're using "average" a bit differently than I learned it in statistics class (or maybe my memory's going bad after all these years -- though I still very clearly remember a girl who always showed up in some of the tightest jeans I've ever seen...)
Unfortunately, I have no personal recollection of the tight jeans...
What I meant by this was most inventors take their oath (their oath of disclosure) seriously, and most inventors (that I've worked with) are pretty forthcoming with art in their applications.
Having previously been an expert witness, and having declined the umm...honor in at least one other case, I think I can say with reasonable certainty that I'd decline in a case like that. Come to think of it, nobody's asked me to be an expert witness for a while though...
I've not seen an expert say anything that was simply, proveably wrong, but I have seen experts say the opposite of what they themselves have previously written in academic papers. I've also seen a Professor of Electrical Engineering who couldn't remember what he meant be the term "active device" in his OWN patent on an amplifier device...
That's why the courts are smart to not trust experts...
BTW start going along with what your lawyers ask you to say, you'll make more money!
On the other hand, you have patents on portable electronic devices for sending and receiving email--- that's bloody fucking obvious, and not just in hindsight. Portable email was not a solution waiting for an insightful genius to discover it, but a solution waiting for technological progress to make it feasible.
If this is your test for obviousness, then NOTHING is patentable, because everything is just "a solution waiting for technological progress to make it feasible." Fortunately (or unfortunately, depending on your position in this matter), our patent system doesn't just look at "ideas," it looks at the idea plus a "reduction to practice" -- in other words, the guy that says "I wish I could take my email with me" doesn't get a patent, but the guy that actually figures out HOW to do it does. We give patents based onthe invention of the "technological progress" that makes the solutions feasible.
As noted in another post, the first NTP patent was filed in 1991 -- was a portable device for email "bloody fucking obvious" in 1991?
(BTW, just for the sake of disclosure, I have no love for NTP, and actually wrote a brief in support of RIM at the CAFC, and think RIM got fucked -- but not because of NTP's patents being obvious, but for other reasons, specifically the extraterritorial application of U.S. patent laws.)
Saying they aren't obvious doesn't make it so. Are you really claiming to be so stupid as to say that if someone showed you a wireless computer and asked you what it might be used for, you wouldn't think of e-mail?
If you asked me today, of course I would. But in 1991, when the first of the NTP patents was filed, I don't know.
It doesn't matter if the NTP patents are obvious now -- the key is whether or not they were obvious when they were filed, in this case, back in 1991.
IMO, this is one of the real sticking points: right now, when somebody applies for a patent, they have to declare that they think it's novel. The patent examiner then looks to see if it look obvious (to them). The standard, at this point, however is only that the patent applicant has to show that the "preponderance of the evidence" is in their favor. Oh, and patent examiners virtually never look at anything except older patents and applications.
Well, there is the affirmative duty for the patentee to disclose anything that might be material to patentability. Whether or not most patentees actually do a good job of this or not is an open question -- but considering the penalties for not disclosing material art (loss of the patent, maybe loss of a job to the patent agent/attorney is the Office of Enrollement and Discipline finds their failure to disclose egregious enough), I think that most patentees to a better than average job of disclosure.
When a patent is challenged, however, that changes: the challenger now has to show "clear and convincing evidence" that the patent is really obvious after all. This means, from a legal viewpoint, that the patent is supposed to be considered valid, even if there's a fairly strong reason to believe otherwise.
If you didn't have the "clear and convincing" standard, then the patent would have no presumption of validity, and we would have a European-style patent system. Maybe that's a better system, I don't know -- I don't think so, but that's just my opinion. I guess we could switch to a "clear and convincing" standard for a patentee to overcome an obviousness rejection (or other type of rejection), but that would make a LOT more work for the examiners, and would increase the costs of obtaining a patent significantly. Maybe that's a good thing, maybe not -- but something to consider, I suppose.
To add to that, nearly every patent office (definitely including the US PTO) gets part or all of its funding from patents that it issues. Worse still, examiners are rated (partly) in terms of the number of applications they examine. Neither of these really encourages patent examiners to do be as thorough as possible and reject all patent applications that really should be (though, in fairness, given their workload, I'm frequently impressed at how good of a job patent examiners do anyway).
I think given the conditions the patent office works under, they do a pretty decent job.
The thing people often forget (or don't realize) it that the issued patent may be far narrower than either the original application or the written specification. Although it's true that most patents applications that are taken all the way through the examination process eventually get issued, many are issued as only a shadow of their original selves, and many issued patents have claims that are so narrow it would take a patent attorney to figure out how to infringe them in the first place! Although a lot of patents get allowed, I'm not sure that necessarily translates into a lot of bad patents being allowed.
The motivation to combine must be a bit more than "motivation" as most people would think of it. Most of us would think of things like "it saves money" or "it makes the product smaller/lighter/more dependable" -- but when you're trying prove a patent is obvious, you're typically looking at something like combining two research articles, and the motivation to combine needs to be either a direct reference from one article to the other, or a third article that references both the ones you're looking at.
Agreed. I wasn't completely clear in my post. But this high standard for motivation to combine is a result of trying to overcome obvious due to hindsight. Maybe it doesn't do a good job, but that's the reason for it. Everything looks obvious in hindsight.
Instead, it's an almost purely mythical construct, with total awareness of all existing products and publications, and the ability to understand them, but essentia
Nevertheless, the fact remains that they ARE obvious. (Anyone who thinks otherwise must have an IQ in the lowest quartile.) Therefore, the current test is rubbish.
To whom? Just saying so doesn't make it so. If you have evidence showing that the NTP patents are really obvious, then maybe you should have tried to get hired on as a consultant to RIM...
Yes they both have extensive articles on Wiki. Although I may have taken the liberty to combine the two termns, but if you really don't know... Read the articles.
I know exactly what both are. Submarine trolls may have been an issue at one point (see my earlier post), but are really not an issue any more. Even the wikipedia article is clear on that. My point was basically that submarine patents aren't really an issue any more (if they ever really were), and certainly aren't a reason now to mess with the obviousness standard.
The point is that Patent system doesn't require you to actually make an invention, but rather have a description on what these invention does. These things can often be very vague and people have been known to patent the wheel on occasion shows a big flaw in the Patent system.
You do realize that the wheel patent was in Australia, right?
Yes, sometimes weird things do get through the patent office. But consider this -- there are many thousands of patents filed every week with the patent office. The patent office is a profit center -- they bring in far more money than they have a budget -- but congress siphons off most of the patent's office revenues for other projects, and leaves the patent office with far less staff and resources than they would have if congress left the patent office to support itself. Generally speaking, the patent office does a pretty good job with what it has.
As far as the requirements for a patent go, a patent must make an "enabling disclosure" -- in other words, one of "ordinary skill" in the relevant art must be able to take the patent and, without "undue experimentation," practice the patent. What is sufficient to provide an "enabling disclosure" is different from art area to art area, and different from invention to invention -- but it is not generally true that a vague and hand-wavy disclosure is sufficient to result in an issued patent. It may happen sometimes, but it doesn't seem to happen very often.
And when it does, such patents can be successfully challenged in court.
You are right. I guess I lived up to my sig...
http://en.wikipedia.org/wiki/Not_even_wrong
Indeed, the test of obviousness should be whether someone reasonably skilled at the art would have arrived at a similar solution given the same problem. If the answer is "yes", it is obvious EVEN IF THE PROBLEM ITSELF WAS NOT OBVIOUS OR COMMON. Of course, by this standard, 99% of patents should not be valid. 99% of patents should not be valid.
Just curious, why do you believe 99% of of patents should not be valid?
How do you propose to perform your test? If others "skilled in the art" already know that there is a solution, then you are injecting hindsight into the equation, and EVERYTHING is obvious once you have hindsight.
As for the question of why someone else didn't think of it first, I can't count how many patented designs I've seen and said "I can't believe they got a patent on that. I had that idea [n] years ago, but A. didn't have any financing to develop it, B. felt that the technology hadn't quite matured to the point that it was practical/usable, or C. didn't think there was a big enough market for it. Half the time, I've had somebody suggest the idea TO ME out of the blue, then said "hey, I thought of pretty much the same thing [n] years ago", THEN two or three years later, found out somebody turned it into a product and patented it.
The purpose of patents, as is oft repeated, is to advance the useful arts (whether it does a good job or not is not really the point here, though!). A patent, for better or worse, at least makes public the invention, so others can see it, benefit from it, and build upon it -- maybe not immediately, but eventually. If you don't bother to tell anyone about your inventions, or don't bother to publish papers or put up a webpage or whatever, then the public is not benefiting from your invention, so you are not entitled to a patent (under current law). Someone else who comes up with the idea, dilligently works to develop it, and then gives the knowledge up to the public IS entitled to a patent.
But just because you claim to have thought of something first doesn't make another's invention obvious. How do you prove that you came up with it first? Is the patent office or the courts just supposed to take your word for it?
If you really want to keep others from patenting something you invented "first," put up a webpage, publish a paper, let the world know about your "obvious" invention -- that's how you can do this. Coming back 10 years later when someone else is successful and sitting back and complaining that it was "obvious" because you invented it "first" doesn't do any good at all.
Well most of these people actually do think of the solution and actually create a working product, but then a Submarine Patent Troll comes out of the woodwork telling them that their actual invention violates their vague patent that they never bothered to bring to market or tell anyone else about.
What is a "submarine patent troll?" The 1995 Amendments to the patent laws pretty much ended the endless continuation practice that Lemelson, the original "submarine patent guy" used to his advantage.
BTW, patents are public record -- they are all publicly available on the USPTO website. Should a patent holder have to go out and notify any potential infringers before they begin developing a product?
That is the key problem here... Not that it is just obvious, but they are going after people who do come up with the idea themselves rather than those who have stolen the idea from them.
How do you propose we sort out the "true" infringers who are "stealing" an idea from those who came up with the idea independently? What test to you propose to determine what independent development is? How far "back" in the development stream do you need to go to show "independence?"
A cotton gin is an invention, and should be patentable. Mechanically removing seeds from cotton is a problem, and shouldn't be patentable.
But isn't a cotton gin just a "method and apparatus for removing seeds from cotton?" Where do you draw the patentability line? Should an apparatus be patentable, but not a method?
That, more often than not, is not so difficult as you might imagine. Take, for instance, the patent suit against RIM by NTP. NTP contends that they have a valid set of patents, but when you look at how email was forwarded to early paging devices, their patent looks blatantly built upon quite obvious technological steps rather than something new and unobvious.
Most, if not all inventions, are based on technological steps that look quite obvious in hindsight. The trick it to figure out what steps are obvious without hindsight -- that's the point of the obviousness test.
RIM had ample opportunity to show that the emailing and computing world would have though that NTP's patents were obvious before the patents were filed -- in fact, RIM had more opportunities than most companies get to try and show the patents invalid. They failed, over and over. Maybe the test is bad, but under the current test, NTP's patents were NOT obvious.
This, no matter what bumps might arise, will help to even out the patent trolls, and stop stupid patents.
The eBay v. MercExchange ruling changing the CAFC rules for granting permanent injunctions will do more to curb the problem of patent trolls than will changing obviousness rules.
Agree 100% with your post.
No test is going to make everyone happy. The current obviousness test is an attempt to avoid the "duh" type of hindsight obviousness (every inventino looks obvious in hindsight) while protecting against "real" obviousness (where all of the pieces were clearly known to those in the art, just nobody had yet bothered to write an article on or patent the combination). No matter where you draw the line, there will be problems. Maybe the test now results in too many obvious patents. But another test may end up not giving patent protections to truely deserving inventions. It's a tough situation.
Hopefully, the court won't go so far as to create a new standard, just rule that the current one is not Constitutional. That would force Congress to write a new patent standard, which is who should be deciding the issue. Patents haven't become high viz enough to be a campaign issue, but I'd love to see an advisory panel of both industry and academic representatives formed to create a better system, and then have Congress vote on that.
I'm not convinced that our congresscritters would be able to come up with any more competant test for obviousness than the one we already have!
However, there is a patent reform act making the rounds through congress right now. I haven't looked at it recently, but I remember when it was first floated, there were a few eye-openers in the act, including (if I remember correctly) a shift from U.S. style "first to invent" to a European-style "first to file" -- I don't remember if a switch to "absolute novelty" was also included. Also, a very strict limitation on continuation and divisional practices, a limit on the number of claims, and a requirement that all patent applications be made public 18 months after filing (current is generally only patents that are also being filed in foreign countries are published after 18 months).
Perceptive post.
Making it no longer necessary for patents to be non-obvious?
Since there is already a statute that requires patents to be nonobvious -- 35 U.S.C. 103 -- it's unlikey that the courts are going to go in this direction.
Shifting the burden of proof so that the patenter (not the alleged infringer) has to prove that the patent is non-obvious? I thought this was legally the status quo, though the quality of some patents would suggest practice differs for software...
Once a patent is issued, it is presumed valid -- which means, it is presumed to be patentable subject matter (35 U.S.C. 101), novel (35 U.S.C. 102), nonobvious (35 U.S.C. 103), and enabled (35 U.S.C. 112). It is up to the person challenging the validity to show why a patent isn't patentable, isn't novel, is obvious, or is not enabled.
I guess they could be trying to move away from the presumption of validity, in which case a patent owner would need to prove that the patent WAS valid in order to assert the patent (the opposite of what we have now). Maybe that's the way we want to go, to a European-style patent system. Personally I don't think it's the right way to go, but what do I know.
Replacing the test with one that better accomplishes the same goal? (Somewhere there must be details of how this is tested, and they're not good?) I guess this seems most likely, given this quote: "I would say its [the lower court's?] test is meaningless," said Scalia. "It doesn't add anything to the question, 'Would a person of ordinary skill in this field have conceived of this idea?' "
To show that an invention is "obvious," you need essentially need to show one or more pieces of prior art that, in combination, "anticipate" or disclose the invention seeking to be patented, and you must show some "motivation to combine" the art into a single invention. The criticisms typically focus either on the fact that the art must meet the standards for prior art -- which usually means a written record -- or that the motivation to combine factor is too nebulous.
It is a tricky test; however, the test is an attempt to balance "hindsight" against wha is truely obvious. The problem is, almost every invention is "obvious" in hindsight -- the current obviousness test is an attempt to weed out hindsight.
I strongly suspect the ruling in this case is going to be unanimous against these obvious item patenters.
Which is all fine and good if they simply find this particular patent obvious. But if they are going to change the test for obviousness, then I wonder what it might be? The justices surely didn't give any insight into what the proper test for obviousness should be, they only said they didn't like the current test.
Hindsight is a real problem -- almost every invention is obvious in hindsight. The trick is to figuring which inventions are obvious before anyone else sees how to do it.
Lawyers gotta eat too. And send their kids to private school, and make the insurance payments on the Ferrari...
Is YouTube an ISP? Because the safeharbor for takedown requests only applies to ISP's, and ISP-like entities. Maybe it is, I don't know -- but depending on how much control they assert over what gets posted, it may be a contentious point.
And a TOS or release or anything like that isn't going to protect YouTube -- or anyone -- if they are really liable under copyright law. You can't contract away your liability like that.
Technically, drug transactions and other illegal transactions ARE taxable -- but since they rely on self-reporting, or, as the other poster noted, the purchase of tax stamps, not many taxes are collected this way...
In the U.S., that's how it used to be -- if you rolled over any gains into a new house, you didn't pay taxes on it, but any amount NOT rolled over -- like if you bought a less expensive house -- would be taxed.
The rules are different now. Nowadays, if you live in a house as your primary residence for at least 2 of the last 5 years before the sale, then the first $250,000 of the gain is tax free for each taxpayer (so a married couple, or two partners, could deduct $250,000 each, for example). Anything above that is taxed as capital gains, whether you roll it into another house or not. Ditto if you sell without living in the house as your primary residence for 2 years out of the preceeding 5.
So, you can't defer the taxes anymore, but you also can take a pretty big chunk out tax-free if you want, so there are pluses and minuses to the new scheme.
IAAL, just not a tax lawyer...