Right, you mention a computer, so that what are you patenting is the computer, not the pure algorith itself. And of course, the difference is pretty much nonexistenct for practical purposes, but since we were working with a contrived example of just publishing source code, I think that was one of the few times that difference mattered.
While that's true that it doesn't explicity give Congress exclusive power to do so, the fact that Congree can write such a law comes from the fact patent and copyright power are given in the Constitution and from the Supremecy clause. Otherwise, Congress would never be able to carve out the law just for itself in the first place.
I've actually written a law review comment on these laws. While one case did hold that code is speech, a few others haven't; it depends on the jurisdiction. And the case that would be the most likely precedent to patent law would probably be the 2600 case, since it involved the DMCA, and that didn't accept the free speech rationale as enough of a defense. Frankly, and annoyingly, it's really hard to get judges to recognize code as speech, since to most of them it's just a bunch of meaningless symbols; at best they tend to analogize it to a recipe.
However, if you were only publishing source code, this might not matter at all because it's not clear that you can really sue someone under patent law for publishing source code. Patent claims generally have to be for a device, a method, or a composition of matter. What you emphatically cannot patent is a pure algorithm.
So if you look at them, they'll claim some sort of software system, or the method it performs, or some sort of computer media that has instructions written on it. Source code published online (or especially published on paper) isn't really anything more than an expression of an algorithm, so it's pretty much outside the realm of traditional software patent claims.
I'm not sure if you're talking about US states here, or "states" as in nations.
If it's the former, there is no state patent law, as all patent law is federal (as is copyright law, both by the U.S. Constitution). Any patent suit in any state will be brought under federal law, so the states involved are largely meaningless.
If you meant which country, it could be more than one, or even all three, and it would depend on the laws of each state. Of course, there might be conflicts of law rules in one or more that would be used to decide which law applies, but that decision would be so context-sensitive that it couldn't be answered in a general way here.
It's not exactly awareness of the contents that will increase your damages. What increases your damages (by trebling them) is "willful infringement" which means you know of a patent and you know you're infringing but you keep on doing it.
Of course the easiest way to avoid willfully infringing any patents is to not know of any in the first place. But this will fall apart the first time you get a cease and desist letter.
The best way to know you aren't going to get nicked for crazy damages if you are found to infringe is to get an opinion from a patent lawyer that you aren't infringing. This doesn't mean you won't be found to be doing so at trial, but it does mean are you pretty much insured against treble damages. Unfortunately, this costs a crapload of money in attorney fees.
And your point is...? I'm fairly certain the original comment was assuming a US lawsuit, since it was citing the US Constitution.
If there were an action here, which there obviously isn't for the reason I stated, it would make sense to bring it in the US against an American company. Just as there very well might have been other causes of action in other countries under their own laws. But we weren't talking about the rest of the world here.
This isn't just useful to ensure they aren't infringing. That's even kind of hard, because you're dealing with a huge space of potential patents.
What's useful about hiring a bunch of people to look for prior art is when you're trying to invalidate a patent being cited against you. Then you have a specific set of claims for which you can search for prior art. Of course, in the end, I like this, because it means stupid crappy patents will get weeded out by being invalidated at trial (if things go to trial rather than just being settled). Unfortunately, not everyone can afford to hire an army of people to do searches like this, so it's not the most efficient method...
This is very old news. The case has had about five iterations since then.
From what I have read, the current status is that the Florida Supreme Court has halted the release of abstentee ballots pending a decision in the case that might come Saturday. So far, both a trial judge and an appellate court have found that the Reform party is not a legitimate state party, and so Nader can't get on the ballot. The Secretary of State has appealled both decisions.
And here's a Miami Herald story, that's, you know, actually from today 'n shit.
I strongly suspect it would have ended up on/. Either way, it's still an interesting quirky story that has it's basis in the arcane workings of a somewhat complex system. Which means, at least to me, that it feels right for this forum.
I think people searching for anti-Bush bias right now are trying too hard. There just happen to have been a lot of negative Bush stories this week. Had Politics been up last month, it would have been full of Swift Boat stuff.
Generally, I think you're talking about the general innovation of the combination of a bluetooth keyboard and HMD, whereas I'm talking about how the patent system is built around any little bits of novelty and utility. And I mean any. So I think we're arguing about two different things.
And yeah, what you're talking about doesn't seem all that new. But rest assured that if there is something new about it at all, and your statement "What would be nice..." suggests that it would be, then someone who combines the two and makes it useful can get a patent. It might be a sucky narrow one, but they can get something. That's because all the patent system cares about is innvoation of any small kind. Yes, if things are so very much alike there are obviousness issues. But if an "inventor" wants it enough and is willing to give up enough, he or she can get a patent. And so if they made something that couldn't get any patent, then in my opinion that would be a sorry data-entry system indeed.
Oh, and I have to respond to this:
Let's see. Toilet paper isn't patentable, and I would guess that it is indeed really useful to almost everybody. Maybe there are just a few counterexamples to your statement?
Dude, nice straw man. This doesn't respond to what I'd said, anyway. I didn't say "all useful things, from every moment in history are all patentable." I was saying that if a new design was made and there was nothing in it that could be patented, then it really wouldn't have created any innovation, and thus wouldn't really be all that great.
Yeah, TP isn't patentable, now. But if somehow we'd had nothing like it up 'til now and you'd said "let's use this absorbant material which comes in seperable sheets that we roll up" then hell yeah, you'd be able to patent it. Yes, that's a fucked up world where no one has ever thought to use paper to wipe their ass before. And yeah, its fucked up that someone could patent a way to wipe your butt. The point, however, is that just because you can see useful things in the world that don't have patents doesn't mean they would't technically be able to get some if they were new today.
I agree that the separate display is a fairly essential aspect, since presumably one wants a one-handed input device to be able to use it while doing (and seeing) other things.
But how is keeping the display and chorded-keyboard apart going to keep it from being patentable? If you put any sort of effort into optimizing it, whoever comes up with it is likely going to have done some sort of innovation. That could include the layout of the device, or the way the chording works. And then s/he's going to be able to try for a patent no matter what.
And what is really wrong with it being patentable? I understand being pissed off at abuse of the patent process, but shouldn't it be more important that it works well than that no one is patenting it? I mean, if its so non-unique that its not patentable, then is it really going to be useful to anyone.
Be pissed if someone abuses their legal monopoly; don't be pissed if they make a good device that entitles them (under law if not under everyone's ethics) to that monopoly.
From what I understand, they would very much like to both b) increase prices and c) get more staff.
But Congress controls what they charge and how much money they have.
So what would you have the office do?
It's not necessarily the complete fault of the examiner (that's what they call them, not clerk.) The Patent and Trademark Office is terminally underfunded and overworked. The number of files they have to go through in a year means that each application gets very very little review in its entire multi-year history at the PTO. Additionally, the examiners have a quota of points to fill, which they receive by, among other things, allowing claims regardless of any "quality" that you or I might see.
So what you end up with is Examiners under pressure to get things out the door one way or another. Sometimes this means rejecting an application, but as the patent attorney will keep refiling continuations, that doesn't mean things go away as well as if they just allow some claims. Additionally, because there are so many damned applications compared to so few examiners, the lag time from filing to issuance, and subsequent suits based on that patent, is getting longer and longer. This is why we keep seen patents for stuff that have been around seemingly forever that are only now getting sued over.
That said, I'll also add that many examiners are not the best of engineers and sometimes not the most facile, we'll say, with English. Thus, things get by them.
I don't know that any of that can explain this particular gem of a patent, but we do need to understand that the system is flawed as much as any one examiner. For that, blame Congress for not giving it enough money and countless administrations for not giving enough guideance.
Being granted a patent in 1998 doesn't mean they applied for it in 1998. The patent process can easily take from 2-3 years, and the prior art that would/could hold up the granting of the patent would have had to exist prior to the date the applied.
Slashdot Mirror
Right, you mention a computer, so that what are you patenting is the computer, not the pure algorith itself. And of course, the difference is pretty much nonexistenct for practical purposes, but since we were working with a contrived example of just publishing source code, I think that was one of the few times that difference mattered.
While that's true that it doesn't explicity give Congress exclusive power to do so, the fact that Congree can write such a law comes from the fact patent and copyright power are given in the Constitution and from the Supremecy clause. Otherwise, Congress would never be able to carve out the law just for itself in the first place.
However, if you were only publishing source code, this might not matter at all because it's not clear that you can really sue someone under patent law for publishing source code. Patent claims generally have to be for a device, a method, or a composition of matter. What you emphatically cannot patent is a pure algorithm.
So if you look at them, they'll claim some sort of software system, or the method it performs, or some sort of computer media that has instructions written on it. Source code published online (or especially published on paper) isn't really anything more than an expression of an algorithm, so it's pretty much outside the realm of traditional software patent claims.
I'm not sure if you're talking about US states here, or "states" as in nations.
If it's the former, there is no state patent law, as all patent law is federal (as is copyright law, both by the U.S. Constitution). Any patent suit in any state will be brought under federal law, so the states involved are largely meaningless.
If you meant which country, it could be more than one, or even all three, and it would depend on the laws of each state. Of course, there might be conflicts of law rules in one or more that would be used to decide which law applies, but that decision would be so context-sensitive that it couldn't be answered in a general way here.
Of course the easiest way to avoid willfully infringing any patents is to not know of any in the first place. But this will fall apart the first time you get a cease and desist letter.
The best way to know you aren't going to get nicked for crazy damages if you are found to infringe is to get an opinion from a patent lawyer that you aren't infringing. This doesn't mean you won't be found to be doing so at trial, but it does mean are you pretty much insured against treble damages. Unfortunately, this costs a crapload of money in attorney fees.
And your point is...? I'm fairly certain the original comment was assuming a US lawsuit, since it was citing the US Constitution.
If there were an action here, which there obviously isn't for the reason I stated, it would make sense to bring it in the US against an American company. Just as there very well might have been other causes of action in other countries under their own laws. But we weren't talking about the rest of the world here.
Not unless/until MS becomes an arm of the government. The First Amendment only applies to governmental action.
This isn't just useful to ensure they aren't infringing. That's even kind of hard, because you're dealing with a huge space of potential patents.
What's useful about hiring a bunch of people to look for prior art is when you're trying to invalidate a patent being cited against you. Then you have a specific set of claims for which you can search for prior art. Of course, in the end, I like this, because it means stupid crappy patents will get weeded out by being invalidated at trial (if things go to trial rather than just being settled). Unfortunately, not everyone can afford to hire an army of people to do searches like this, so it's not the most efficient method...
Why didn't anyone tell me my alma mater had been re-branded?
This is very old news. The case has had about five iterations since then.
From what I have read, the current status is that the Florida Supreme Court has halted the release of abstentee ballots pending a decision in the case that might come Saturday. So far, both a trial judge and an appellate court have found that the Reform party is not a legitimate state party, and so Nader can't get on the ballot. The Secretary of State has appealled both decisions.
And here's a Miami Herald story, that's, you know, actually from today 'n shit.
I strongly suspect it would have ended up on /. Either way, it's still an interesting quirky story that has it's basis in the arcane workings of a somewhat complex system. Which means, at least to me, that it feels right for this forum.
I think people searching for anti-Bush bias right now are trying too hard. There just happen to have been a lot of negative Bush stories this week. Had Politics been up last month, it would have been full of Swift Boat stuff.
And yeah, what you're talking about doesn't seem all that new. But rest assured that if there is something new about it at all, and your statement "What would be nice..." suggests that it would be, then someone who combines the two and makes it useful can get a patent. It might be a sucky narrow one, but they can get something. That's because all the patent system cares about is innvoation of any small kind. Yes, if things are so very much alike there are obviousness issues. But if an "inventor" wants it enough and is willing to give up enough, he or she can get a patent. And so if they made something that couldn't get any patent, then in my opinion that would be a sorry data-entry system indeed.
Oh, and I have to respond to this:
Dude, nice straw man. This doesn't respond to what I'd said, anyway. I didn't say "all useful things, from every moment in history are all patentable." I was saying that if a new design was made and there was nothing in it that could be patented, then it really wouldn't have created any innovation, and thus wouldn't really be all that great.
Yeah, TP isn't patentable, now. But if somehow we'd had nothing like it up 'til now and you'd said "let's use this absorbant material which comes in seperable sheets that we roll up" then hell yeah, you'd be able to patent it. Yes, that's a fucked up world where no one has ever thought to use paper to wipe their ass before. And yeah, its fucked up that someone could patent a way to wipe your butt. The point, however, is that just because you can see useful things in the world that don't have patents doesn't mean they would't technically be able to get some if they were new today.
I agree that the separate display is a fairly essential aspect, since presumably one wants a one-handed input device to be able to use it while doing (and seeing) other things.
But how is keeping the display and chorded-keyboard apart going to keep it from being patentable? If you put any sort of effort into optimizing it, whoever comes up with it is likely going to have done some sort of innovation. That could include the layout of the device, or the way the chording works. And then s/he's going to be able to try for a patent no matter what.
And what is really wrong with it being patentable? I understand being pissed off at abuse of the patent process, but shouldn't it be more important that it works well than that no one is patenting it? I mean, if its so non-unique that its not patentable, then is it really going to be useful to anyone.
Be pissed if someone abuses their legal monopoly; don't be pissed if they make a good device that entitles them (under law if not under everyone's ethics) to that monopoly.
I think they dont' actually get to keep all the money they charge. I think it goes into the general gov't treasury and they stick to their budget.
Of course, I could be wrong.
From what I understand, they would very much like to both b) increase prices and c) get more staff. But Congress controls what they charge and how much money they have. So what would you have the office do?
That's actually very common.
Patents almost never go from filing to issuance in less than 2-3 years.
It's not necessarily the complete fault of the examiner (that's what they call them, not clerk.) The Patent and Trademark Office is terminally underfunded and overworked. The number of files they have to go through in a year means that each application gets very very little review in its entire multi-year history at the PTO. Additionally, the examiners have a quota of points to fill, which they receive by, among other things, allowing claims regardless of any "quality" that you or I might see. So what you end up with is Examiners under pressure to get things out the door one way or another. Sometimes this means rejecting an application, but as the patent attorney will keep refiling continuations, that doesn't mean things go away as well as if they just allow some claims. Additionally, because there are so many damned applications compared to so few examiners, the lag time from filing to issuance, and subsequent suits based on that patent, is getting longer and longer. This is why we keep seen patents for stuff that have been around seemingly forever that are only now getting sued over. That said, I'll also add that many examiners are not the best of engineers and sometimes not the most facile, we'll say, with English. Thus, things get by them. I don't know that any of that can explain this particular gem of a patent, but we do need to understand that the system is flawed as much as any one examiner. For that, blame Congress for not giving it enough money and countless administrations for not giving enough guideance.
Being granted a patent in 1998 doesn't mean they applied for it in 1998. The patent process can easily take from 2-3 years, and the prior art that would/could hold up the granting of the patent would have had to exist prior to the date the applied.