And how is your response any better than mine? What evidence do you have that your supposition is better than mine? How is my logic and non-scientific rationalization any more atrocious than yours? Simply saying so doesn't make it so -- show me that there are better systems out there, and that people and companies are fleeing the U.S. to get out from under the patent system, and I'll believe you. But just saying people are fleeing proves nothing.
I can't arbitrarily name any starving children in Uganda, but it doesn't mean that they don't exist.
Understood. But you could point me to reliable data about various humanitarian crises around the world. The mantra on Slashdot is "patent stifle creativity, all creativity and innovation are going elsewhere" but then when someone asks "where?" no such evidence is forthcoming.
The U.S. patent system isn't perfect -- but where are things demonstrably better?
I know that people are going to say that the corporations fund the work done to do the invention. Fine, they then pay for their license to the patent through their funding. But they then don't have the power to squash other innovation with stupid litigation.
If you have an exclusive license to a patent, in most cases you can enforce the patent. Licensees sue for patent infringement all the time.
- Software is covered by copyright and trademark law and implementations are secret so it's not easy to copy software ideas, it could take several years to re-implement a patented idea in another way. i.e. software patents are largely unnecessary.
Copyrights are automatic and free, trademarks can be essentially automatic and free, patent applications are expensive to draft and prosecute, and require maintenance fees to keep them valid once they are issed. If patents were not necessary, why would anyone bother to shoulder the expense in light of the "free" alternatives?
Just curious, if the U.S. patent system is stifling innovation, where exactly is most of the world's innovation coming from? Seriously -- can you point to a country that has no (or lax) patent laws, and is more innovative than companies in the U.S., working under U.S. patent laws?
Yes but if you invent a braking system that makes a motor vehicle stop, then get a patent for it. Then someone else goes out and makes a braking system that is different but does the same thing. In the software world you would be able to sue someone else just because the outcome is the same even if the implementation is comletely different.
That's not just true in the software world. There is a concept in patent law known as the "doctrine of equivalents," which means your patent covers what you claim, and equivalents to what you claim. The usual test is function-way-result -- if the allegedly infringing thing has the same function, operates in the same way, and ends up with the same result, it may be infringing under the doctrine of equivalents. In other words, a "new implementation" is not sufficient to get you clear of a patent, even for non-software patents.
That said, caselaw has really limited the scope of doctrine of equivalents, so it's likely that software patents are afforded a broader scope that non-software patents.
That's the way most countries work, but that has nothing to do with being "first to file" -- rather, it establishes a requirement for "absolute novelty."
Even if "first to file" comes about in the U.S., there is no guarantee that there will also be a new "absolute novelty" requirement -- we may very well keep the current 35 U.S.C. 102 novelty rules.
There are a LOT of lawyers out there that wich someone was spending $100K on a patent. People would be suprised at how much pricing pressure there is -- I would be suprised if a Cisco or IBM paid more than $8K - $10K total per patent except if very unusual circumstances. Now, biotech and pharma patents tend to be more expensive, but nowhere near $100K -- or even $50K -- except in the most unusual of circumstances, perhaps an extremely complex application with years of back-and-forth prosecution.
A lot of big companies have pushed patent applications down to $7K or less, and $2K or less for an office action response...
And then there's offshoring of patent drafting that can drive the costs down even further.
Just a note, it's actually 20 years from the earliest effective filing date (20 years from the priority date). It used to be 17 years from date of issue, but that changedin June, 1995 -- now it's 20 years from filing.
That PDF isn't available from that link, at least it didn't work for me.
Question though -- are the development costs the same (between real and knock-offs), or are development costs + testing costs the same? Because if development costs are the same, but the original manufacturer has to foot the bill to test for efficacy and safety, that's still a huge boon for the knock-off manufacturer.
Maybe that article would have answered this question...
"Either way, you're wrong. We have rights guaranteed to us by law that cannot be superseded by any EULA, especially one which I haven't signed."
There are all kinds of rights "guaranteed by law" that can be "superseded" by contract. Unless a contract would be against public policy or result in an illegal act, a contract that restricts the legal freedoms of a person can be a valid contract. Let's say you write a book -- as the author, you hold the copyright. I could pay you some money for the exclusive right to publish and distribute copies of your book. That's a publishing contract, and it's done all of the time. Yes, the "right" to publish and distribute your book is granted to you by U.S. copyright law, but you are free to contract away that right, and if you then made copies of your own book after signing such a contract, you would be in breach of contract. So yeah, it's possible for a EULA, or any other contract, to "supersede" rights granted to you by the government.
You don't have a "right" to the software, they don't have to sell it to you. If they do sell it to you, they can put their own terms on the sale. If you don't like the terms, don't buy it.
Yes, it's called "dedication to the public." You will see it on issued patent sometimes, where all or a portion of the patent's term is "dedicated to the public."
The US was 17 years from issuance prior to 1995 and changed to a 20 years from filing in 1995, mainly to conform to other countries.
Correct. June 6 (or 8, can't remember off of the top of my head) 1995 is the cutoff date for the implementation of the Uruguay harmonization stuff.
Patents in the US are not renawable and IIRC have never been.
Also correct. Patents have never been renewable.
Copyrights were renawable, but now that congress in a bid to curry favor with Disney (to keep Mickey Mouse subject to copyright protection) and others have made them last 95 years (the Sonny Bono Act), the renewal is less of an issue.
Disney may have pushed the Sonny Bono act, but all the Sonny Bono act did was harmonize U.S. copyright law with the copyright terms that already existed in other countries that were signatories to the Berne conventions. In fact, the U.S. was essentially that last of the major Berne signatories to eliminate copyright renewal and to eliminate the notice requirements. When the U.S. went to a longer copyright term, it was to match the copyright terms already in use elsewhere.
patents last at least 25 years, and most of the time longer (due to extentions, paperwork, and errata).
All patent nowadays last for 20 years from the "earliest effective filing date." If you have a later application that is based on an earlier patent, the lifetime of the patent is still 20 years from the earlier patent's filing date. And sine it takes 3-4 years to get a patent issued, the patent is enforceable for 16-17 years at most.
They should be able to patent it, and when the patent expires in a few years, and cheap copies show up, the inventor can drop the (compensation for R&D) from the pricing equation, and suddenly "the origional" is on a level playing field with the copycats, and who wouldn't buy a Toshiba over a Matsakataishanana for the same price?
I see where you are going with this, but by the same token, why should Toshiba have a monopoly for as long as they care to maintain it on the use of their name and logo? Trademarks are also a type of "government-sponsored monopoly" as well.
This thread has been up long enough that hopefully nobody will see this post, but:
In order for software patents to not grossly stiffle innovation, they need to have a maximum lifespan of 2 years. 100 years ago,
and
The patent system, intended to promote innovation through guaranteed profit, now has a 70 year history of stiffling it.
My question is, how has the patent system stifled innovation? Sure, maybe some good ideas never came to fruition because of patents, but there are probably any number of good ideas that have never come to fruition for other reasons, such as lack of investor interest, lack of market interest, whatever. I see new companies with new ideas popping up all of the time; new software and new devices are coming out constantly. Where exactly is innovation being stifled? I hear this refrain often, but I just don't see it. Like I said, there are certainly individual cases where a company or idea just can't be implemented because of existing patents, but overall is innovation really being stifled?
I'm being serious here -- where is the stifling? Where would we be if patents were abolished tomorrow, or even 20 years ago? Where would we be if there were no software patents? Would things really be that different? I would like to hear some real examples, not hand-waving "patents stifle creativity, information wants to be free" and whatever.
It shouldn't invalidate the patent, but the scenario should create an 'implied liscence'. It was there, you knew about the infringement, you did nothing -> you implicitly gave your permision to do so. However not sure if this applies, NTP has been suing RIM for years & started shortly after RIM started operating in the US.
But we already have that -- it's called "laches." If you know infringement is going on, and do nothing, eventually you lose the right to sue for damages. For patents, you cannot sue for damages that have occured more than 6 years prior to the filing of the lawsuit.
Patent law is a "pay-to-play" system that prices out smaller corporations, let alone startups in the garage.
That's really not true. There are any number or law firms out there that are willing to take on patent infringement cases on contingency, as long as the patent is a pretty good one and there is a reasonable chance of prevailing and making money. As with any contingency-fee arrangement, the lawyers only get paid if the plaintiff wins, so this is relatively cost-free for the "little guy."
Of course, if the patent is weak, or infringement is not strong, or if the infringer doesn't have any money to pay off a judgment, then yeah, I guess the little guy might have a tough time. But then again, why would anyone sue in such a case, unless they were just trying to make life difficult for someone else -- and that's usually the province of big companies anyway, not "little guys."
For every NTP v. RIM or RAMBUS v. The World or SCO v. IBM, there are hundreds of infringement cases involving small companies and individuals going on everyday. They don't make headlines, but they are out there.
Re:Everyone loves to hate patents - except lawyers
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The Patent Epidemic
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So, the patent system has failed its purported goal to spur innovation in that field by rewarding risks taken after the initial development.
That's one way of looking at how the patent system spurs innovation -- by rewarding inventors and making it financially worthwhile to engage in ongoing R&D. However, there is another way to look at the job of the patent system -- the tradeoff one makes with the government to get a patent is that you must disclose your invention to the public. The idea here is that, rather than keep your invention a closely-guarded trade secret, your invention gets out into the world and can be used to build upon by others -- that's how patents can spur innovation, by not requiring everyone else to start from scratch, they can build on other's patented inventions.
Of course, while the patent is valid, they may not be able to market or sell their new products without a license -- but they can develop new products, and potentially find that, rather than take a license, there is a different path that can be taken, i.e., why try and develop new instant films, let's move to another technology altogether. That's innovation.
As far as your Sony Trinitron example, I think there are also two ways to look at it. First, they "rested on their patents" and failed to innovate, as you suggest. However, maybe it made better business sense for them to milk as much out of their market leadership position in TV's as they could, rather than dilute their profits via R&D, let others bear the burden of developing the new technologies, see which technologies shake out, and then use their brand name to enter the market at a later time, once much of the uncertainty has vanished. I don't KNOW if that's what they did, but that could be a viable long-term business strategy. Yeah, Samsung is the flat panel leader right now, but if Sony started slapping their names on TV's, you can bet people would buy them based on their relationship with Sony products over the years. And Sony has been spared the risk of developing reverse-projection or LCD TV's, and can concentrate solely on plasma (or whatever TV ends up being the dominant technology in the flat-panel space) -- because they didn't have any "missteps" and didn't sink big R&D dollars into a product that ultimately the public didn't want, they can enter late and rely on their name and goodwill to carry them. As I said, I don't know if that's what they did, but it seems a logical possibility.
A technology leader doesn't need to innovate all of the time to remain a profitable business!
Just to get this back on the subject of patents, I think you bring up some very interesting points, I just think that there are several ways to look at patents, and their relationship with innovation -- it's not just a patents == good or patents == bad world, it's more complicated than that.
Re:Everyone loves to hate patents - except lawyers
on
The Patent Epidemic
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· Score: 1
The (now almost entirely digital) camera business is now largely owned by companies in the far east that innovated rather than rest on their patent cushion.
But did they innovate because they didn't want to "rest on their (nonexistant) patent cushion," or did they innovate because they couldn't enter the U.S. market due to the existing patents? If it's the latter, then the patent system DID lead to innovation -- maybe not in the way some believe it should, but it lead to innovation nonetheless.
Look at it another way -- if Sony or Nikon or Canon had owned the patents instead of Polaroid or Kodak, would Sony or Nikon or Canon STILL have innovated, or would they have rested on their "patent cushion" while Polaroid and Kodak innovated?
Re:Everyone loves to hate patents, but...
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The Patent Epidemic
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Patents encourage this behavior at least as much as they prevent it. You invent something but don't patent it, possibly because you feel it's obvious. But nothing is too obvious for the USPTO. Somebody else patents it and then sues you. You can't prove prior art because the USPTO only looks at patents and published journal articles.
Just curious, is the patent office or the courts just supposed to take your word for it that it was "obvious?"
I guess it's valid since we do have cases where people were sued (even if the claims were false in the end). So having insurance to cover court costs against frivolous lawsuits is indeed necessary. That, however, to me points to a major flaw in the current legal system: we need insurance to continually financially protect us from frivolous lawsuits. It should be easier to avoid baseless accusations, but it isn't.
I guess my question would be, how do you define "baseless?" Currently, under both federal and state rules, a party bringing a lawsuit -- and their lawyers -- can be held liable if they bring a truely frivolous lawsuit. Under the federal laws (rule 11 of the Code of Civil Procedure), the lawyers and the party bringing a lawsuit have an affirmative duty to determine that a lawsuit is not frivolous before they file.
Now, frivolous or baseless probably means different things to different people. A lawsuit won't be dismissed as frivolous if there is a reasonable theory that can support the lawsuit -- it doesn't matter if the theory is likely to win or not, just that is is not unreasonable. The idea is, let the facts come out, and we'll see if it's a winner or not. Of course, that means you have to defend yourself, but the tradeoff is greater access to the courts versus greater difficulty in getting cases thrown out right at the begining.
And remember, relatively few lawsuits ever get anywhere near trial -- most cases get disposed of in pretrial motions, or get dimissed. In the federal courts, less than 2% of filed cases get decided by a trial. And if a case is really, truely baseless, it will not survive a motion for dismissal, which is the usually first thing that happens once a complaint is filed.
If you want to have a system that gets rid of "truely baselss" claims before things even get started, you would need to first define "baseless," and then figure out how to sort out the baseless claims from the claims with merit. Personally, I think a strengthening of Rule 11, and enforcement of Rule 11 more often, would serve such a gatekeeper role without requiring an overhaul of the legal system. If Rule 11 had real teeth, lawyers would thing twice before filing a case that could cost them money, or their license, and clients would think twice before running immediately to court, because it would cost them money and because they might not be able to find a lawyer to represent them.
I know this is a late reply, and I appreciate your response, but I think you are still missing the point -- this particular section does not indemnify consumers based on "the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings" -- rather, it protects the manufacturers. In other words, "the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings" cannot be used to hold the manufacturer directly, contributorily or vicariously liable for copyright infringement.
Whether the consumers themselves are liable for infringement based on the "noncommerical use" will be based on statutory fair use, 17 USC 107. But whether or not a use is found to be "fair" when the consumer does it, it can't be used to hold the manufacturers laible under this section.
So they could have done it legally if they gave every rental customer both one original type with "DONT TOUCH IT" written on it and a copy of that tape?
Presumably yes, as long as the rental store did not retain a copy.
So if I DESTROY the original, then everyone can have their own backup copy, right?
While I don't think there is any caselaw directly on this point, the answer will almost certainly be no. Again, the restriction is always that only one copy is available to be played at any one time -- I guess if you could somehow arrange it so that only one of the 100 listeners could be listening at a given moment, that might be okay, but who knows -- until this gets tested, who knows what the limits really are.
In any event, this seems like a lot of work -- is it really that onerous to just buy a copy of a CD?
Slashdot Mirror
And how is your response any better than mine? What evidence do you have that your supposition is better than mine? How is my logic and non-scientific rationalization any more atrocious than yours? Simply saying so doesn't make it so -- show me that there are better systems out there, and that people and companies are fleeing the U.S. to get out from under the patent system, and I'll believe you. But just saying people are fleeing proves nothing.
How should the point be made then?
I can't arbitrarily name any starving children in Uganda, but it doesn't mean that they don't exist.
Understood. But you could point me to reliable data about various humanitarian crises around the world. The mantra on Slashdot is "patent stifle creativity, all creativity and innovation are going elsewhere" but then when someone asks "where?" no such evidence is forthcoming.
The U.S. patent system isn't perfect -- but where are things demonstrably better?
I know that people are going to say that the corporations fund the work done to do the invention. Fine, they then pay for their license to the patent through their funding. But they then don't have the power to squash other innovation with stupid litigation.
If you have an exclusive license to a patent, in most cases you can enforce the patent. Licensees sue for patent infringement all the time.
- Software is covered by copyright and trademark law and implementations are secret so it's not easy to copy software ideas, it could take several years to re-implement a patented idea in another way. i.e. software patents are largely unnecessary.
Copyrights are automatic and free, trademarks can be essentially automatic and free, patent applications are expensive to draft and prosecute, and require maintenance fees to keep them valid once they are issed. If patents were not necessary, why would anyone bother to shoulder the expense in light of the "free" alternatives?
Just curious, if the U.S. patent system is stifling innovation, where exactly is most of the world's innovation coming from? Seriously -- can you point to a country that has no (or lax) patent laws, and is more innovative than companies in the U.S., working under U.S. patent laws?
Yes but if you invent a braking system that makes a motor vehicle stop, then get a patent for it. Then someone else goes out and makes a braking system that is different but does the same thing. In the software world you would be able to sue someone else just because the outcome is the same even if the implementation is comletely different.
That's not just true in the software world. There is a concept in patent law known as the "doctrine of equivalents," which means your patent covers what you claim, and equivalents to what you claim. The usual test is function-way-result -- if the allegedly infringing thing has the same function, operates in the same way, and ends up with the same result, it may be infringing under the doctrine of equivalents. In other words, a "new implementation" is not sufficient to get you clear of a patent, even for non-software patents.
That said, caselaw has really limited the scope of doctrine of equivalents, so it's likely that software patents are afforded a broader scope that non-software patents.
That's the way most countries work, but that has nothing to do with being "first to file" -- rather, it establishes a requirement for "absolute novelty."
Even if "first to file" comes about in the U.S., there is no guarantee that there will also be a new "absolute novelty" requirement -- we may very well keep the current 35 U.S.C. 102 novelty rules.
Agreed 100%.
There are a LOT of lawyers out there that wich someone was spending $100K on a patent. People would be suprised at how much pricing pressure there is -- I would be suprised if a Cisco or IBM paid more than $8K - $10K total per patent except if very unusual circumstances. Now, biotech and pharma patents tend to be more expensive, but nowhere near $100K -- or even $50K -- except in the most unusual of circumstances, perhaps an extremely complex application with years of back-and-forth prosecution.
A lot of big companies have pushed patent applications down to $7K or less, and $2K or less for an office action response...
And then there's offshoring of patent drafting that can drive the costs down even further.
Just a note, it's actually 20 years from the earliest effective filing date (20 years from the priority date). It used to be 17 years from date of issue, but that changedin June, 1995 -- now it's 20 years from filing.
That PDF isn't available from that link, at least it didn't work for me.
Question though -- are the development costs the same (between real and knock-offs), or are development costs + testing costs the same? Because if development costs are the same, but the original manufacturer has to foot the bill to test for efficacy and safety, that's still a huge boon for the knock-off manufacturer.
Maybe that article would have answered this question...
"Shrink-wrap EULAs have not been shown to hold up in court."
g ation/Litigation_Alert_04-21-06.pdf
In the U.S., at least, shrink-wrap EULA's have been tested, and are largely enforceable. See, for example, http://www.fenwick.com/docstore/Publications/Liti
"Either way, you're wrong. We have rights guaranteed to us by law that cannot be superseded by any EULA, especially one which I haven't signed."
There are all kinds of rights "guaranteed by law" that can be "superseded" by contract. Unless a contract would be against public policy or result in an illegal act, a contract that restricts the legal freedoms of a person can be a valid contract. Let's say you write a book -- as the author, you hold the copyright. I could pay you some money for the exclusive right to publish and distribute copies of your book. That's a publishing contract, and it's done all of the time. Yes, the "right" to publish and distribute your book is granted to you by U.S. copyright law, but you are free to contract away that right, and if you then made copies of your own book after signing such a contract, you would be in breach of contract. So yeah, it's possible for a EULA, or any other contract, to "supersede" rights granted to you by the government.
You don't have a "right" to the software, they don't have to sell it to you. If they do sell it to you, they can put their own terms on the sale. If you don't like the terms, don't buy it.
Yes, it's called "dedication to the public." You will see it on issued patent sometimes, where all or a portion of the patent's term is "dedicated to the public."
The US was 17 years from issuance prior to 1995 and changed to a 20 years from filing in 1995, mainly to conform to other countries.
Correct. June 6 (or 8, can't remember off of the top of my head) 1995 is the cutoff date for the implementation of the Uruguay harmonization stuff.
Patents in the US are not renawable and IIRC have never been.
Also correct. Patents have never been renewable.
Copyrights were renawable, but now that congress in a bid to curry favor with Disney (to keep Mickey Mouse subject to copyright protection) and others have made them last 95 years (the Sonny Bono Act), the renewal is less of an issue.
Disney may have pushed the Sonny Bono act, but all the Sonny Bono act did was harmonize U.S. copyright law with the copyright terms that already existed in other countries that were signatories to the Berne conventions. In fact, the U.S. was essentially that last of the major Berne signatories to eliminate copyright renewal and to eliminate the notice requirements. When the U.S. went to a longer copyright term, it was to match the copyright terms already in use elsewhere.
Two things about your post:
patents last at least 25 years, and most of the time longer (due to extentions, paperwork, and errata).
All patent nowadays last for 20 years from the "earliest effective filing date." If you have a later application that is based on an earlier patent, the lifetime of the patent is still 20 years from the earlier patent's filing date. And sine it takes 3-4 years to get a patent issued, the patent is enforceable for 16-17 years at most.
They should be able to patent it, and when the patent expires in a few years, and cheap copies show up, the inventor can drop the (compensation for R&D) from the pricing equation, and suddenly "the origional" is on a level playing field with the copycats, and who wouldn't buy a Toshiba over a Matsakataishanana for the same price?
I see where you are going with this, but by the same token, why should Toshiba have a monopoly for as long as they care to maintain it on the use of their name and logo? Trademarks are also a type of "government-sponsored monopoly" as well.
This thread has been up long enough that hopefully nobody will see this post, but:
In order for software patents to not grossly stiffle innovation, they need to have a maximum lifespan of 2 years. 100 years ago,
and
The patent system, intended to promote innovation through guaranteed profit, now has a 70 year history of stiffling it.
My question is, how has the patent system stifled innovation? Sure, maybe some good ideas never came to fruition because of patents, but there are probably any number of good ideas that have never come to fruition for other reasons, such as lack of investor interest, lack of market interest, whatever. I see new companies with new ideas popping up all of the time; new software and new devices are coming out constantly. Where exactly is innovation being stifled? I hear this refrain often, but I just don't see it. Like I said, there are certainly individual cases where a company or idea just can't be implemented because of existing patents, but overall is innovation really being stifled?
I'm being serious here -- where is the stifling? Where would we be if patents were abolished tomorrow, or even 20 years ago? Where would we be if there were no software patents? Would things really be that different? I would like to hear some real examples, not hand-waving "patents stifle creativity, information wants to be free" and whatever.
Because 11 is 1 louder, of course.
It shouldn't invalidate the patent, but the scenario should create an 'implied liscence'. It was there, you knew about the infringement, you did nothing -> you implicitly gave your permision to do so.
However not sure if this applies, NTP has been suing RIM for years & started shortly after RIM started operating in the US.
But we already have that -- it's called "laches." If you know infringement is going on, and do nothing, eventually you lose the right to sue for damages. For patents, you cannot sue for damages that have occured more than 6 years prior to the filing of the lawsuit.
Patent law is a "pay-to-play" system that prices out smaller corporations, let alone startups in the garage.
That's really not true. There are any number or law firms out there that are willing to take on patent infringement cases on contingency, as long as the patent is a pretty good one and there is a reasonable chance of prevailing and making money. As with any contingency-fee arrangement, the lawyers only get paid if the plaintiff wins, so this is relatively cost-free for the "little guy."
Of course, if the patent is weak, or infringement is not strong, or if the infringer doesn't have any money to pay off a judgment, then yeah, I guess the little guy might have a tough time. But then again, why would anyone sue in such a case, unless they were just trying to make life difficult for someone else -- and that's usually the province of big companies anyway, not "little guys."
For every NTP v. RIM or RAMBUS v. The World or SCO v. IBM, there are hundreds of infringement cases involving small companies and individuals going on everyday. They don't make headlines, but they are out there.
So, the patent system has failed its purported goal to spur innovation in that field by rewarding risks taken after the initial development.
That's one way of looking at how the patent system spurs innovation -- by rewarding inventors and making it financially worthwhile to engage in ongoing R&D. However, there is another way to look at the job of the patent system -- the tradeoff one makes with the government to get a patent is that you must disclose your invention to the public. The idea here is that, rather than keep your invention a closely-guarded trade secret, your invention gets out into the world and can be used to build upon by others -- that's how patents can spur innovation, by not requiring everyone else to start from scratch, they can build on other's patented inventions.
Of course, while the patent is valid, they may not be able to market or sell their new products without a license -- but they can develop new products, and potentially find that, rather than take a license, there is a different path that can be taken, i.e., why try and develop new instant films, let's move to another technology altogether. That's innovation.
As far as your Sony Trinitron example, I think there are also two ways to look at it. First, they "rested on their patents" and failed to innovate, as you suggest. However, maybe it made better business sense for them to milk as much out of their market leadership position in TV's as they could, rather than dilute their profits via R&D, let others bear the burden of developing the new technologies, see which technologies shake out, and then use their brand name to enter the market at a later time, once much of the uncertainty has vanished. I don't KNOW if that's what they did, but that could be a viable long-term business strategy. Yeah, Samsung is the flat panel leader right now, but if Sony started slapping their names on TV's, you can bet people would buy them based on their relationship with Sony products over the years. And Sony has been spared the risk of developing reverse-projection or LCD TV's, and can concentrate solely on plasma (or whatever TV ends up being the dominant technology in the flat-panel space) -- because they didn't have any "missteps" and didn't sink big R&D dollars into a product that ultimately the public didn't want, they can enter late and rely on their name and goodwill to carry them. As I said, I don't know if that's what they did, but it seems a logical possibility.
A technology leader doesn't need to innovate all of the time to remain a profitable business!
Just to get this back on the subject of patents, I think you bring up some very interesting points, I just think that there are several ways to look at patents, and their relationship with innovation -- it's not just a patents == good or patents == bad world, it's more complicated than that.
The (now almost entirely digital) camera business is now largely owned by companies in the far east that innovated rather than rest on their patent cushion.
But did they innovate because they didn't want to "rest on their (nonexistant) patent cushion," or did they innovate because they couldn't enter the U.S. market due to the existing patents? If it's the latter, then the patent system DID lead to innovation -- maybe not in the way some believe it should, but it lead to innovation nonetheless.
Look at it another way -- if Sony or Nikon or Canon had owned the patents instead of Polaroid or Kodak, would Sony or Nikon or Canon STILL have innovated, or would they have rested on their "patent cushion" while Polaroid and Kodak innovated?
Patents encourage this behavior at least as much as they prevent it. You invent something but don't patent it, possibly because you feel it's obvious. But nothing is too obvious for the USPTO. Somebody else patents it and then sues you. You can't prove prior art because the USPTO only looks at patents and published journal articles.
Just curious, is the patent office or the courts just supposed to take your word for it that it was "obvious?"
I guess it's valid since we do have cases where people were sued (even if the claims were false in the end). So having insurance to cover court costs against frivolous lawsuits is indeed necessary. That, however, to me points to a major flaw in the current legal system: we need insurance to continually financially protect us from frivolous lawsuits. It should be easier to avoid baseless accusations, but it isn't.
I guess my question would be, how do you define "baseless?" Currently, under both federal and state rules, a party bringing a lawsuit -- and their lawyers -- can be held liable if they bring a truely frivolous lawsuit. Under the federal laws (rule 11 of the Code of Civil Procedure), the lawyers and the party bringing a lawsuit have an affirmative duty to determine that a lawsuit is not frivolous before they file.
Now, frivolous or baseless probably means different things to different people. A lawsuit won't be dismissed as frivolous if there is a reasonable theory that can support the lawsuit -- it doesn't matter if the theory is likely to win or not, just that is is not unreasonable. The idea is, let the facts come out, and we'll see if it's a winner or not. Of course, that means you have to defend yourself, but the tradeoff is greater access to the courts versus greater difficulty in getting cases thrown out right at the begining.
And remember, relatively few lawsuits ever get anywhere near trial -- most cases get disposed of in pretrial motions, or get dimissed. In the federal courts, less than 2% of filed cases get decided by a trial. And if a case is really, truely baseless, it will not survive a motion for dismissal, which is the usually first thing that happens once a complaint is filed.
If you want to have a system that gets rid of "truely baselss" claims before things even get started, you would need to first define "baseless," and then figure out how to sort out the baseless claims from the claims with merit. Personally, I think a strengthening of Rule 11, and enforcement of Rule 11 more often, would serve such a gatekeeper role without requiring an overhaul of the legal system. If Rule 11 had real teeth, lawyers would thing twice before filing a case that could cost them money, or their license, and clients would think twice before running immediately to court, because it would cost them money and because they might not be able to find a lawyer to represent them.
I know this is a late reply, and I appreciate your response, but I think you are still missing the point -- this particular section does not indemnify consumers based on "the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings" -- rather, it protects the manufacturers. In other words, "the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings" cannot be used to hold the manufacturer directly, contributorily or vicariously liable for copyright infringement.
Whether the consumers themselves are liable for infringement based on the "noncommerical use" will be based on statutory fair use, 17 USC 107. But whether or not a use is found to be "fair" when the consumer does it, it can't be used to hold the manufacturers laible under this section.
So they could have done it legally if they gave every rental customer both one original type with "DONT TOUCH IT" written on it and a copy of that tape?
Presumably yes, as long as the rental store did not retain a copy.
So if I DESTROY the original, then everyone can have their own backup copy, right?
While I don't think there is any caselaw directly on this point, the answer will almost certainly be no. Again, the restriction is always that only one copy is available to be played at any one time -- I guess if you could somehow arrange it so that only one of the 100 listeners could be listening at a given moment, that might be okay, but who knows -- until this gets tested, who knows what the limits really are.
In any event, this seems like a lot of work -- is it really that onerous to just buy a copy of a CD?