In the paper, it is recorded that the journal Cell accepted this paper just 4 days after submission. Perhaps, under the circumstances, the pre-publication peer review had to be a little hasty?
Four days isn't long enough to hear back from reviewers whether they're willing to do it. Something is *seriously* wrong with this picture.
(No pun intended.)
I'm guessing the authors were worrying about getting scooped. So in this case - a high impact paper in a high impact journal - the editor probably called potential reviewers personally until he had enough lined up. Why? The authors probably made a publish/no publish decision by the end of the week a condition for submitting the paper to Cell instead of to Science.
--in regard to the software it is running. In terms of hardware, it is the same machine.
"How" different is also the question--just how much of a software change are we talking of here? One application, or the entire operating system (and everything else)?
Changing one app does not make the computer a new machine./p>
I think in this context a "new machine" is one with a new function. So for four of the judges, adding one app makes it a new machine.
Is that they do not have to understand the technical stuff.
Patent Judges are the reason for the problem.
If they were really qualified, they would not have a low-paying federal job.
You are thinking of a Patent Examiner, not a "judge". These are two very different governmental positions.
err.. 80-110K per year ain't bad to work from home. For chemistry and life sciences to be considered as an applicant you pretty much need to have a masters or a PhD, some industry experience, and some experience in IP.
In other words, the judge is making a moderately subtle argument that software patents ought to be unlawful.
No, the judges were serious on that point.
FTA:
At the same time, a group of four judges strongly disagreed on the significance of the computer limitation. Chief Judge Rader, writing for this group, said that "a computer programmed to perform a specific function is a new machine with individualized circuitry created and used by the operation of the software." Similarly Judge Moore wrote for this same group of four judges that "a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software," on the theory that software "effectively rewires a computer."
Judge Moore’s tone was in places apocalyptic. She worried that Judge Lourie’s approach would mean "the death of hundreds of thousands of patents" and would "decimate the electronics and software industries." She said, "There has never been a case which could do more damage to the patent system than this one." Chief Judge Rader, in an unusual second opinion titled "Additional Reflections," stated that without patent protection "investors would quickly opt to put their resources" into some field safer than technology.
Lets see how bad this could get. Somehow, somewhere there is a business method patent that claims the process of using the idea that "a computer becomes a 'new machine' every time it loads different software." as a way to secure a software patent...
Either every software patent applicant and patent owner would have to pay licensing fees...
Except for the fact that the NRA gets very little money from gun manufacturers. Where they get their money from is mostly from advertising revenues from firearms companies, donations to it's Ring of Freedom corporate sponsors program from firearms companies, donations to its 501(c)3 and 501(c)4 organizations (again largely from firearms companies. The membership dues cover less than half of their budget, and even some of those are paid for by firearms companies: Taurus buys a membership for each customer.
Well, I intended it as a joke, but time shifting is also used to refer to streaming video, not just broadcast. And not just "live" streams, either. "Selective" time shifting might be a harder sell - but Microsoft is more or less built out of lawyers.
So Microsoft could time shift the ads to allow people to watch them at a later time.
In fact, while double checking that time shifting gets used for streaming...
WO 2000060820 A3
Applicant:
Microsoft Corporation
Streaming information appliance with buffer for time shifting
WO 2000060820 A3
ABSTRACT
An information appliance (110) for receiving streaming information includes a buffer (124), a writer module (122) which receives blocks of streaming information and writes the blocks to the buffer (124), and a reader module (126) which selectively reads the blocks from the buffer (124).
Google/Youtube is still the distributor; Microsoft isn't making copies and running them from their own servers. I think what would get them is "unauthorized access" under the computer fraud and abuse act. The justice department has used that to go after everyone from people using phony myspace accounts (against the TOS) to harass kids to Aaron Swartz. From the esteemed legal journal The New Yorker:
The broadest provision, 18 U.S.C. 1030(a)(2)(c), makes it a crime to “exceed authorized access, and thereby obtain information from any protected computer.” To the Justice Department, “exceeding authorized access” includes violating terms of service, and “any protected computer” includes just about any Web site or computer. The resulting breadth of criminality is staggering. As Professor Kerr writes, it “potentially regulates every use of every computer in the United States and even many millions of computers abroad.” You don’t have to be a raving libertarian to think that might be a problem. Dating sites, to borrow an example from Judge Alex Kozinski, usually mandate that you tell the truth, making lying about your age and weight technically a crime. Or consider employer restrictions on computers that ban personal usage, like checking ESPN or online shopping. The Justice Department’s interpretation makes the American desk-worker a felon.
Kagan was pretty specific about saying that patent exhaustion was irrelevant, so I dont think the stewardship agreement really taints the decision at all. I'm not sure what you think I think the case is about: I think it is about infringement through making copies without a specific license to do so, the same as most patent infringement cases.
I went back and read the decision; it mentions over and over that Bowman sprayed his crops with glyphosate and he was thus intentionally utilizing and reproducing the roundup ready trait. They think it's important, but don't go so far as to say that behavior was necessary to prove infringement. Beats me what the lawyers will make of it.
The seeds he bought weren't Monsanto seeds, they had just been pollinated (contaminated) by Monsanto plants that were upwind. The Monsanto genetic pollen is now all over his field, and any new soy beans he plants will have the Monsanto genetic fingerprint, meaning he will never be able to buy another brand ever again.
You sir or maam, are spectacularly ignorant about:
this case (The seeds he bought from the elevator were almost entirely grown from Monsanto RR strains)
how pollen works (hint: it's only viable for a short period of time, usually hours)
I think that's still a question in the USA as well. Today's decision brings up taking actions (spraying glyphosate on plants from the saved seed) to keep the RR trait over and over when describing the infringement:
But to reduce costs for his riskier late-season planting,
Bowman purchased soybeans intended for consumption from a grain
elevator; planted them; treated the plants with glyphosate, killing all
plants without the Roundup Ready trait; harvested the resulting
soybeans that contained that trait; and saved some of these harvested seeds to use in his late-season planting the next season
...
Each year, that
is, he planted saved seed from the year before (sometimes
adding more soybeans bought from the grain elevator),
sprayed his fields with glyphosate to kill weeds (and any
non-resistant plants), and produced a new crop of glyphosateresistant—i.e., Roundup Ready—soybeans.
They don't address a case where they're grown like normal soybeans.
While the Nelson and Stratemeyer cases are pretty damn evil, Monsanto sued them for saving Monsanto RR seed and planting it, not for saving cross-pollinated seed. Stratemeyer admitted it, but like Bowman, didn't think it was infringement. I can't tell if Nelson sprayed their fields with glyphosate, something they only would have done if they knowingly planted RR seed as opposed to conventional seed cross-pollinated with RR.
Terminator genes convey an evolutionary advantage?
No, but if the genes transfer, they'll reduce future seed yields for any nearby farmers. By a lot if they're dominant, by a little if they're recessive (although by more for generations if recessive because the trait will only crop up rarely; pun intended).
By at most a little regardless of whether they are dominant or recessive. The vast majority of the seed (99%) will have been fertilized by other plants in the same field. This might cause issues with organic certification, but not with seed germination yield.
http://www.agbioforum.org/v4n2/v4n2a02-jemison.htm
The original roundup resistance gene is from bacteria; I don't think it's very likely for a natural vector to shuttle a gene from a bacteria to a plant (viruses sometimes do that between plants though). His defense would probably fall apart as soon as they examine the seeds and determine Monsanto's version of the EPSPS gene is in there.
Lets say a plant naturally developed a version of the RR trait and you go out and discover it. You could take out a plant patent on it, even if it was uncultivated and out in the wild. Plant patents get their own section of U.S.C. 35 and play by different rules from other patents when it comes to invention vs discovery. Your patent would cover hybrids made with this plant, such as hybrids with useful crops. Monsanto's patents may well include claims for introducing a RR trait via hybridization into crops; I don't know if they would hold up over your hybrids though, or if that would be considered too broad.
Monsanto also has method claims; those cover the method of spraying glyphosate on RR crops to get rid of weeds without harming your crops. The one in the patent involved in the Bowman case is much more narrow though and really only covers GM crops, not hybrids, and definitely not natural plants
No it's not. This machine is designed to have all sorts of superior characteristics when planted on a soybean farm, among them resistance to glyphosate. The reproductive trait was already there, not designed.
And even if the VNM was first designed and built as a self replicating machine and then later sold as a way to make arduinos, you could still sue for infringement if someone used it to make more VNMs.
To continue the analogy Toyota only sued you after you started farming Toyotas: you put your toyota in a field full of scrap metal and plastic feedstocks, fed it lots of energy, culled all of the Hyundais that appeared amongst the Toyotas, and then sold some of your new Toyotas and kept the rest to make even more.
If you had just driven it around and hadn't hit the "copy myself" button: no infringement.
Kagan emphasizes the purpose: "to make and market replicas of them", but does not mention whether taking extra steps to ensure fidelity of the final product was necessary for infringement. Would a final product that was still 81% pesticide resistant (punnett cross for 90% of the starting seeds being RR, I really don't have a clue what to expect though) be a good enough replica to be infringing?
Everyone screamed at Monsanto for developing the terminator trait in seeds, because everyone thought it would be used to stop farmers from saving seed. Monsanto dropped it, partly from bad press, partly because the trait was a bit too sensitive to temperature to be reliable. The thing is, traditional hybrid seeds already tend to lose their carefully selected traits if you save them and plant another generation. If you want to save seed you would want to start with a stable variety in the first place.
But not a meaningful difference as far as IP is concerned, and so sayeth the SCOTUS.
Just because making a replica seed is a capability of the seed and trivially easy doesn't mean it's not infringement. If you invented and patented a self replicating Von Neumann machine it could be used to manufacture all sorts of machines. You could sell it to people so they could manufacture all sorts of machines. You could also sue them (or someone they sold the V.M. machine to) for infringing your patent if they use it to make copies of your machine.
If he had simply bought the bean seeds, and grown them without herbicides, there would have been no issue.
I'm not certain that's the case. Even if he hadn't selected for RR by spraying glyphosate most of his crop would still have been RR so he still would have been making and marketing replicas of Monsanto's product.
The court might have split on the decision though.
The car analogy is: you buy a used (not stolen) Toyota, pull it apart to make molds of the bodywork and parts etc, and then start manufacturing and selling Toyotas.
I was wondering why Monsanto didnt sue the elevator instead.
The grain elevator didn't do anything wrong. This wasn't decided based on the licensing agreement, which in any case the grain elevator never signed. The farmer lost because he made and marketed replicas of patented items.
The first sale doctrine gets you out of licensing terms but it doesn't allow you to make more copies of the patented article:
But Kagan disagreed. "Bowman planted Monsanto's patented soybeans solely to make and market replicas of them, thus depriving the company of the reward patent law provides for the sale of each article," she said. "Patent exhaustion provides no haven for such conduct."
Slashdot Mirror
In the paper, it is recorded that the journal Cell accepted this paper just 4 days after submission. Perhaps, under the circumstances, the pre-publication peer review had to be a little hasty?
Four days isn't long enough to hear back from reviewers whether they're willing to do it. Something is *seriously* wrong with this picture.
(No pun intended.)
I'm guessing the authors were worrying about getting scooped. So in this case - a high impact paper in a high impact journal - the editor probably called potential reviewers personally until he had enough lined up. Why? The authors probably made a publish/no publish decision by the end of the week a condition for submitting the paper to Cell instead of to Science.
--in regard to the software it is running. In terms of hardware, it is the same machine.
"How" different is also the question--just how much of a software change are we talking of here? One application, or the entire operating system (and everything else)? Changing one app does not make the computer a new machine. /p>
I think in this context a "new machine" is one with a new function. So for four of the judges, adding one app makes it a new machine.
The claims are numbered recursively. Should make office actions fun.
Is that they do not have to understand the technical stuff. Patent Judges are the reason for the problem. If they were really qualified, they would not have a low-paying federal job.
You are thinking of a Patent Examiner, not a "judge". These are two very different governmental positions.
err .. 80-110K per year ain't bad to work from home. For chemistry and life sciences to be considered as an applicant you pretty much need to have a masters or a PhD, some industry experience, and some experience in IP.
In other words, the judge is making a moderately subtle argument that software patents ought to be unlawful.
No, the judges were serious on that point. FTA:
At the same time, a group of four judges strongly disagreed on the significance of the computer limitation. Chief Judge Rader, writing for this group, said that "a computer programmed to perform a specific function is a new machine with individualized circuitry created and used by the operation of the software." Similarly Judge Moore wrote for this same group of four judges that "a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software," on the theory that software "effectively rewires a computer."
Judge Moore’s tone was in places apocalyptic. She worried that Judge Lourie’s approach would mean "the death of hundreds of thousands of patents" and would "decimate the electronics and software industries." She said, "There has never been a case which could do more damage to the patent system than this one." Chief Judge Rader, in an unusual second opinion titled "Additional Reflections," stated that without patent protection "investors would quickly opt to put their resources" into some field safer than technology.
Lets see how bad this could get. Somehow, somewhere there is a business method patent that claims the process of using the idea that "a computer becomes a 'new machine' every time it loads different software." as a way to secure a software patent...
Either every software patent applicant and patent owner would have to pay licensing fees ...
NRA is a marketing arm of gun manufacturers.
Except for the fact that the NRA gets very little money from gun manufacturers. Where they get their money from is mostly from advertising revenues from firearms companies, donations to it's Ring of Freedom corporate sponsors program from firearms companies, donations to its 501(c)3 and 501(c)4 organizations (again largely from firearms companies. The membership dues cover less than half of their budget, and even some of those are paid for by firearms companies: Taurus buys a membership for each customer.
FTFY.
Well, I intended it as a joke, but time shifting is also used to refer to streaming video, not just broadcast. And not just "live" streams, either. "Selective" time shifting might be a harder sell - but Microsoft is more or less built out of lawyers.
So Microsoft could time shift the ads to allow people to watch them at a later time.
In fact, while double checking that time shifting gets used for streaming ...
WO 2000060820 A3
Applicant: Microsoft Corporation
Streaming information appliance with buffer for time shifting
WO 2000060820 A3
ABSTRACT
An information appliance (110) for receiving streaming information includes a buffer (124), a writer module (122) which receives blocks of streaming information and writes the blocks to the buffer (124), and a reader module (126) which selectively reads the blocks from the buffer (124).
Google/Youtube is still the distributor; Microsoft isn't making copies and running them from their own servers. I think what would get them is "unauthorized access" under the computer fraud and abuse act. The justice department has used that to go after everyone from people using phony myspace accounts (against the TOS) to harass kids to Aaron Swartz. From the esteemed legal journal The New Yorker:
But Microsoft could turn it into a time shifting argument. Their app could just shift Google's ads so they run after the video, instead of before.
Kagan was pretty specific about saying that patent exhaustion was irrelevant, so I dont think the stewardship agreement really taints the decision at all. I'm not sure what you think I think the case is about: I think it is about infringement through making copies without a specific license to do so, the same as most patent infringement cases.
I went back and read the decision; it mentions over and over that Bowman sprayed his crops with glyphosate and he was thus intentionally utilizing and reproducing the roundup ready trait. They think it's important, but don't go so far as to say that behavior was necessary to prove infringement. Beats me what the lawyers will make of it.
The seeds he bought weren't Monsanto seeds, they had just been pollinated (contaminated) by Monsanto plants that were upwind. The Monsanto genetic pollen is now all over his field, and any new soy beans he plants will have the Monsanto genetic fingerprint, meaning he will never be able to buy another brand ever again.
You sir or maam, are spectacularly ignorant about:
this case (The seeds he bought from the elevator were almost entirely grown from Monsanto RR strains)
how pollen works (hint: it's only viable for a short period of time, usually hours)
They don't address a case where they're grown like normal soybeans.
While the Nelson and Stratemeyer cases are pretty damn evil, Monsanto sued them for saving Monsanto RR seed and planting it, not for saving cross-pollinated seed. Stratemeyer admitted it, but like Bowman, didn't think it was infringement. I can't tell if Nelson sprayed their fields with glyphosate, something they only would have done if they knowingly planted RR seed as opposed to conventional seed cross-pollinated with RR.
Terminator genes convey an evolutionary advantage?
No, but if the genes transfer, they'll reduce future seed yields for any nearby farmers. By a lot if they're dominant, by a little if they're recessive (although by more for generations if recessive because the trait will only crop up rarely; pun intended).
By at most a little regardless of whether they are dominant or recessive. The vast majority of the seed (99%) will have been fertilized by other plants in the same field. This might cause issues with organic certification, but not with seed germination yield. http://www.agbioforum.org/v4n2/v4n2a02-jemison.htm
That would be really interesting.
The original roundup resistance gene is from bacteria; I don't think it's very likely for a natural vector to shuttle a gene from a bacteria to a plant (viruses sometimes do that between plants though). His defense would probably fall apart as soon as they examine the seeds and determine Monsanto's version of the EPSPS gene is in there.
Lets say a plant naturally developed a version of the RR trait and you go out and discover it. You could take out a plant patent on it, even if it was uncultivated and out in the wild. Plant patents get their own section of U.S.C. 35 and play by different rules from other patents when it comes to invention vs discovery. Your patent would cover hybrids made with this plant, such as hybrids with useful crops. Monsanto's patents may well include claims for introducing a RR trait via hybridization into crops; I don't know if they would hold up over your hybrids though, or if that would be considered too broad.
Monsanto also has method claims; those cover the method of spraying glyphosate on RR crops to get rid of weeds without harming your crops. The one in the patent involved in the Bowman case is much more narrow though and really only covers GM crops, not hybrids, and definitely not natural plants
And even if the VNM was first designed and built as a self replicating machine and then later sold as a way to make arduinos, you could still sue for infringement if someone used it to make more VNMs.
That might also create a pretty nasty precedent: You didn't control the locusts on your organic farm, then they came over and ate my crops!, etc.
If you had just driven it around and hadn't hit the "copy myself" button: no infringement.
Maybe.
Everyone screamed at Monsanto for developing the terminator trait in seeds, because everyone thought it would be used to stop farmers from saving seed. Monsanto dropped it, partly from bad press, partly because the trait was a bit too sensitive to temperature to be reliable. The thing is, traditional hybrid seeds already tend to lose their carefully selected traits if you save them and plant another generation. If you want to save seed you would want to start with a stable variety in the first place.
But in this case...the product replicates ITSELF.
That's the difference.
But not a meaningful difference as far as IP is concerned, and so sayeth the SCOTUS.
Just because making a replica seed is a capability of the seed and trivially easy doesn't mean it's not infringement. If you invented and patented a self replicating Von Neumann machine it could be used to manufacture all sorts of machines. You could sell it to people so they could manufacture all sorts of machines. You could also sue them (or someone they sold the V.M. machine to) for infringing your patent if they use it to make copies of your machine.
If he had simply bought the bean seeds, and grown them without herbicides, there would have been no issue.
I'm not certain that's the case. Even if he hadn't selected for RR by spraying glyphosate most of his crop would still have been RR so he still would have been making and marketing replicas of Monsanto's product.
The court might have split on the decision though.
The car analogy is: you buy a used (not stolen) Toyota, pull it apart to make molds of the bodywork and parts etc, and then start manufacturing and selling Toyotas.
I was wondering why Monsanto didnt sue the elevator instead.
The grain elevator didn't do anything wrong. This wasn't decided based on the licensing agreement, which in any case the grain elevator never signed. The farmer lost because he made and marketed replicas of patented items.
Doesn't this violate the first sale doctrine?
The first sale doctrine gets you out of licensing terms but it doesn't allow you to make more copies of the patented article: