If you invented X before they invented Y, then you don't have anything to worry about regardless of whether or not you have a granted patent.
On a related point, the granting of a patent does not give you the right to do anything other than exclude someone from using what is claimed in your patent. It does not give you the right to actually practice what your own patent claims.
35 U.S.C. 271(a):
Except as otherwise provided in this title [35 USC 1 et seq.], whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
(emphasis mine)
Patent applications have only started getting published in the United States within the past ten years. Also there were mechanisms that allowed you to keep patents in the PTO almost indefinitely. Thus, trolls would file applications, and keep them from being granted until there was infringing technology on the market. Then, they would amend their patent application to read on the technology in use, and get it issued.
To address this, patent applications are now published in the United States unless you sign an affidavit saying that you will not seek a patent on this application anywhere else in the world. In addition, the PTO has been changing its procedures to make it harder to keep an application perpetually in the PTO. Finally, the term of a patent is no longer based upon when it was granted, but when it was filed. Thus, there is less of a benefit keeping the patent application pending.
This is not what a continuation application is. A continuation application is method that is used to continue the prosecution of a patent after a final rejection has been issued by the Patent Office. By paying some extra money, you get the opportunity to keep on going back and forth with the patent office to get your patent application into a patentable state.
Continuation applications were the way that submarine patents were prosecuted. Because the filing date is the date of importance in determining priority of patents and prior art, inventors like Lemelson would keep their patents in the USPTO using continuation applications, and then finally amend them into an allowable state after the technology that the patent covered became prominant in industry. The change of patent terms to be 20 years after filing as opposed to 17 years after issueance helped fix that problem.
This is all a matter of semantics, but sometimes language matters. From my understanding, the remedy for patent infringement against the United States for patent infringement is limited to the value of the IP taken from you. This action would be similar to a Takings Clause action where the government takes your property for public use, but it must reimburse you for its taking.
Thus, you have a limit in your action against the government, but the government does not have a "license." For the government to have a license, there would need to be some contract effectuating that license agreement. One such way a licensing agreement does come into effect is through government assistence to small businesses and non-profits (mostly universities) and the rights given to the government resulting from their assitance. (See 35 U.S.C. 202(c)(4) - government is granted full, paid-up, nontransferable license to patent that it helps develop).
I think there is a fundamental difference in how you view (intellectual) property if you consider the limitations against suing the U.S. an automatic license to the U.S. versus a restriction of your rights. A similar type of argument is made in the real property arena regarding takings and the Fifth Amendment (does the ability for the government to take my property with compensation mean that the government has an option on my land?)
From what it says, someone who has a patent can sue the government for compensation. Thus, the government does not have an automatic license to the patent.
This is the third time this has been said in the comments, but I have not seen any citations to any evidence of this. Do you have any proof of your statement?
It will be interesting to see if the Democrats will allow someone who is on the solid right (e.g. Scalia, Renquist) be appointed to the Supreme Court. In 1993, the Republicans did not filibuster the nomination of Ruth Bader Ginsburg even though she was solidly on the left. They actually confirmed her 97-3. If someone like Luttig is nominated, will the Democrats grant him the same type of deference?
I haven't dug into it much. I have thought that it might be the best product, but it also seems to have a decent learning curve (even if it is really powerful). I will have to take another look at it.
I am putting together a CMS type web application, and I would like some recommendations on infrastructure to use. I have tried modifying existing PHP apps, and I have only had moderate success with that.
I have experience in Python, PHP, Java, and am willing to try almost anything (Perl is almost). From looking at the Apache Java solutions, those look a little to heavy. I have looked at Zope, but I have never gotten comfortable with its administration or syntax. I have thought about using Cheetah and WebWare/Webkit. All of this hype about Ruby on Rails had made me want to take a look at it.
I know this is sorta open ended, but does anyone have any good suggestions?
No crime, eh? I'm sure that'll come as a relief to those journalists who are on their way to prison (while Novak, oddly enough, stays free...)
Novak stays free because he has cooperated with the authorities. The two journalists who are going to jail are going because they are breaking the law by not answering to a lawful judicial order.
I sure hope that you aren't in law school (or a lawyer). First, the creation of a new law against the circumvention of copyright protection measures has nothing to do with the Betamax case. The Betamax case was about contributory and vicarious liability of the makers of the VCR. That ruling did not have anything to do with circumventing technological measures. In addition, nothing in the DMCA has anything to do with VHS tape prices and the like.
I agree that the Betamax ruling stated that non-substantial non-infringing could still remove one from contributory liability for copyright infringement. However, that has NOTHING TO DO with the DMCA and circumvention of technological measures.
However, the DMCA was passed years later, and takes precident over the betamax ruling, which is why Grokster wasn't protected from liability, even though it was in the same situation as Betamax. It was in the exact same position as betamax in every important way: it's use is overwhelmingly infringing, although it can be (and is) used for noninfringing purposes; it carried a wanring about violating copyrights, but then advertisements talked about the same things that Betamax did: Download your favorite music, free music, free movies, etc.
Unless you didn't notice, Grokster was found not to be liable for contributory infringement. And what did the Ninth Circuit base its ruling on? Wait... what could it be... THE BETAMAX CASE:
Any examination of contributory copyright infringement must be guided by the seminal case of Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) ("Sony-Betamax").
And how many times did the court cite the DMCA? Wait... I think you can figure it out... ZERO, ZILCH, NADA.
Of course, the Supreme Court has the ability to overturn its decision in Betamax, and it did take the appeal of the Grokster decision.
Good point. When I said other people, I should have noted that I meant, other non-family members. The Audio Home Recording Act makes it so that it is non-infringing to make a copy for oneself. It does not explicitly state that it is OK to make on for ones family, but the legislative history of the bill implies that it is ok. However, I have never seen any governmental opinion that it is OK to give someone who is unrelated a copied work.
Please tell me what part of the DMCA modified this law? When I am looking in my 2005 Edition of Copyright, Trademark, and Patent Laws book, it lists 17 U.S.C. 1008 exactly as was quoted above. It is still good law. And, by the way, bills do go back and say that section such-and-such of a statute is repealed. For example, look at the final version of the DMCA found at http://www.eff.org/IP/DMCA/hr2281_dmca_law_1998102 0_pl105-304.html. Note that the first thing it does is strike the definition of a "Berne Convention Work" and give a new definition.
Also, nothing in the DMCA explicitly damages fair use. The only time that fair use is mentioned in it is when the bill specifically notes that the copyright protection circumvention provision specifically DO NOT limit a person's fair use rights. Of course, there are ways that it indirectly affects fair use rights, but only in causing barriers to be able to exercise those rights (such as having to circumvent copyright protection to make a backup of a DVD).
Finally, 17 U.S.C. 1008 has nothing to do with fair use rights anyways. That section places an explicit limit on what type of actions can be brought against a user. While people argued that the right to make such copies were within their "fair use" rights before the passage of the Audio Home Recording Act, this bill made it such that copyrights did not provide an action against such copying specifically. The bill did not, as it could have, made home recording within the fair use rights deliniated in 17 U.S.C. 107.
However, that use has to be by the consumer, not the consumer's friend. Thus, a person can make a recording for himself (or his family), but 17 U.S.C. 1008 would not cover giving the rip to a friend. (According to the Senate Report on the Audio Home Recording Bill).
I am not aware of any attempts to prosecute a case like this, but I highly doubt that it is within fair use rights. If the person were ripping the MP3's for themselves, it is clearly within fair use rights. But letting other people make digital copies of a non-free copyrighted work is almost certainly not within fair use rights. However, almost no one would ever expend the expense and energy to litigate it.
Slashdot Mirror
Actually, the term of patents was changed to 20 years (after filing) on June 8, 1995.
If you invented X before they invented Y, then you don't have anything to worry about regardless of whether or not you have a granted patent.
On a related point, the granting of a patent does not give you the right to do anything other than exclude someone from using what is claimed in your patent. It does not give you the right to actually practice what your own patent claims.
35 U.S.C. 271(a):
Except as otherwise provided in this title [35 USC 1 et seq.], whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
(emphasis mine)
Patent applications have only started getting published in the United States within the past ten years. Also there were mechanisms that allowed you to keep patents in the PTO almost indefinitely. Thus, trolls would file applications, and keep them from being granted until there was infringing technology on the market. Then, they would amend their patent application to read on the technology in use, and get it issued. To address this, patent applications are now published in the United States unless you sign an affidavit saying that you will not seek a patent on this application anywhere else in the world. In addition, the PTO has been changing its procedures to make it harder to keep an application perpetually in the PTO. Finally, the term of a patent is no longer based upon when it was granted, but when it was filed. Thus, there is less of a benefit keeping the patent application pending.
Except that Renquist added those stripes for his own pleasure. Roberts does not have the stripes on his robe.
Perhaps defining what can and cannot be patented is the legislature's job. Enforcing what can and cannot be patented is the PTO's job.
Don't forget about the lawyers. Time to polish off my PTO registration.
This is not what a continuation application is. A continuation application is method that is used to continue the prosecution of a patent after a final rejection has been issued by the Patent Office. By paying some extra money, you get the opportunity to keep on going back and forth with the patent office to get your patent application into a patentable state. Continuation applications were the way that submarine patents were prosecuted. Because the filing date is the date of importance in determining priority of patents and prior art, inventors like Lemelson would keep their patents in the USPTO using continuation applications, and then finally amend them into an allowable state after the technology that the patent covered became prominant in industry. The change of patent terms to be 20 years after filing as opposed to 17 years after issueance helped fix that problem.
It isn't illegal to install it on non-apple hardware. It just violates the terms of their NDA.
Thus, you have a limit in your action against the government, but the government does not have a "license." For the government to have a license, there would need to be some contract effectuating that license agreement. One such way a licensing agreement does come into effect is through government assistence to small businesses and non-profits (mostly universities) and the rights given to the government resulting from their assitance. (See 35 U.S.C. 202(c)(4) - government is granted full, paid-up, nontransferable license to patent that it helps develop).
I think there is a fundamental difference in how you view (intellectual) property if you consider the limitations against suing the U.S. an automatic license to the U.S. versus a restriction of your rights. A similar type of argument is made in the real property arena regarding takings and the Fifth Amendment (does the ability for the government to take my property with compensation mean that the government has an option on my land?)
From what it says, someone who has a patent can sue the government for compensation. Thus, the government does not have an automatic license to the patent.
This is the third time this has been said in the comments, but I have not seen any citations to any evidence of this. Do you have any proof of your statement?
It will be interesting to see if the Democrats will allow someone who is on the solid right (e.g. Scalia, Renquist) be appointed to the Supreme Court. In 1993, the Republicans did not filibuster the nomination of Ruth Bader Ginsburg even though she was solidly on the left. They actually confirmed her 97-3. If someone like Luttig is nominated, will the Democrats grant him the same type of deference?
There were no dissenting opinions filed in the Grokster case. The case was decided 9-0. You might be thinking of concurring opinions.
I haven't dug into it much. I have thought that it might be the best product, but it also seems to have a decent learning curve (even if it is really powerful). I will have to take another look at it.
I am putting together a CMS type web application, and I would like some recommendations on infrastructure to use. I have tried modifying existing PHP apps, and I have only had moderate success with that. I have experience in Python, PHP, Java, and am willing to try almost anything (Perl is almost). From looking at the Apache Java solutions, those look a little to heavy. I have looked at Zope, but I have never gotten comfortable with its administration or syntax. I have thought about using Cheetah and WebWare/Webkit. All of this hype about Ruby on Rails had made me want to take a look at it. I know this is sorta open ended, but does anyone have any good suggestions?
It's a trap!
Most likely?
Of course, the Supreme Court has the ability to overturn its decision in Betamax, and it did take the appeal of the Grokster decision.
Good point. When I said other people, I should have noted that I meant, other non-family members. The Audio Home Recording Act makes it so that it is non-infringing to make a copy for oneself. It does not explicitly state that it is OK to make on for ones family, but the legislative history of the bill implies that it is ok. However, I have never seen any governmental opinion that it is OK to give someone who is unrelated a copied work.
Also, nothing in the DMCA explicitly damages fair use. The only time that fair use is mentioned in it is when the bill specifically notes that the copyright protection circumvention provision specifically DO NOT limit a person's fair use rights. Of course, there are ways that it indirectly affects fair use rights, but only in causing barriers to be able to exercise those rights (such as having to circumvent copyright protection to make a backup of a DVD).
Finally, 17 U.S.C. 1008 has nothing to do with fair use rights anyways. That section places an explicit limit on what type of actions can be brought against a user. While people argued that the right to make such copies were within their "fair use" rights before the passage of the Audio Home Recording Act, this bill made it such that copyrights did not provide an action against such copying specifically. The bill did not, as it could have, made home recording within the fair use rights deliniated in 17 U.S.C. 107.
However, that use has to be by the consumer, not the consumer's friend. Thus, a person can make a recording for himself (or his family), but 17 U.S.C. 1008 would not cover giving the rip to a friend. (According to the Senate Report on the Audio Home Recording Bill).
I am not aware of any attempts to prosecute a case like this, but I highly doubt that it is within fair use rights. If the person were ripping the MP3's for themselves, it is clearly within fair use rights. But letting other people make digital copies of a non-free copyrighted work is almost certainly not within fair use rights. However, almost no one would ever expend the expense and energy to litigate it.
You have to watch out for those folks who have graduated from Princeton Law.