The problem itself is simple. One party owns the copyright in the work and the other party gets an unrestricted, irrevocable (notice I said irrevocable and not "perpetual" - although long, copyright duration is not perpetual), non-exclusive license, including the right to sublicense and make derivative works to the work without the obligation to account to the other party. You can battle about which party owns and which party is licensed but with a license this broad, it is almost the same. However, 35 years from now when an assignment may be terminated (under US law if in the US) which party is which will make a difference.
This is a situation where one or two hours of time from an IP attorney who understands copyright licensing will avoid a LOT of issues later. Don't waste time looking for a prepackaged license that you may alter in ways that have unintended consequences later. This is a one-page agreement. Hire a lawyer to draft it for you.
You mean "there is no LTE or WiMax support" YET. This will surely fuel rumors that Spring will get the iPhone when v.5 is released, that v.5 will be LTE, and that Sprint is even beating out
Venue is the location of a court. There can be multiple venues within a certain geographical area. In many (most) states, each county has a trial court and a case that can be brought in one county may have its venue changed to another county. "Jurisdiction" has two common meanings applicable here, one derived from the other. First, when used as "personal jurisdiction," it is the power of a court to compel a party to appear before it. A "jurisdiction" is a territory within which a court can exercise its personal jurisdiction. "Subject matter jurisdiction" doesn't apply here, but it is the power of a court to hear certain types of cases.
... I am a lawyer. Isn't there just a TINY problem with a judge in the State of WASHINGTON issuing a search warrant for premises located in the State of CALIFORNIA?
This isn't a civil subpoena - it is a SEARCH WARANT. Hello? Jurisdiction anyone?
You have to be concerned with both patent and copyright. The patent will protect the functionality and structure - and may not be expired. Although 20 years has passed, patents can benefit from term extensions due to delays in processing at the USPTO. These term extensions can last for years, depending on the length of delay. Also, be aware that if in the public domain, the public has the right to use the inventions claimed by the patent (or disclosed but not claimed) - and EXACTLY those inventions. Improvements, feature additions, or other enhancements may be covered by another patent. This means that you can independently write code that would be covered by the patent if it was still in force.
As for the *code* that is protected by copyright. In the US, code authored by a company has a copyright of 95 years after publication. Code written by an individual probably has a copyright term of the duration of the life of the author plus 70 years after the author's death. You may not be able to copy the code without a license.
The intersection between patents and copyrights can be a tricky one for software. You should consult an experienced software IP attorney who represents you to get advice.
These events are typical. Although it is rough for the new lawyers to lack time to prepare, it is not uncommon for judges to refuse to give more time by delaying hearings. Judges have a lot of cases and need to keep all of them moving along.
As for turning over original documents, that is merely part of the discovery process in U.S. litigation. In fact, it would be exceptionally sloppy, indeed, perhaps even malpractice, for the defendants to fail to insist on the production of the originals whenever authenticity of a document (paper or electronic) is at issue.
The resignations of his law firms may be true setbacks, but there are lots of reasons why that could have happened. We'll probably never know why because of client confidentiality and privilege rules.
Apple's patent in this area is actually fairly simple to work around. It provides good coverage for Apple's design, but there is a lot of room for modifications.
... to infringe ("violate") *part* of a patent claim. Each claim at the end of a patent is separate. You either do everything one of the claims describes or you are missing something. If you do everything, you infringe the claim. If you are missing even one piece, you do not infringe.
HTTP may be prior art, but it is only *invalidating* prior art if it does everything that is described in the claims. New inventions necessarily build on old ones. There is nothing legally improper about claiming an invention that is based on something old. It is called an *improvement.*
The only one who created something from nothing was God. Everyone else has to work with what is already here.
I did and it was the best career move I ever made. My undergraduate degree was in a non-tech area. I spent the first 2 years of my practice at an international law firm doing banking and finance law. When I couldn't take it anymore I went back to school to get a formal education in Computer Science. At the end of the program, I had multiple offers to be an IP lawyer.
OSS is so pervasive now that every single company must take it into account when doing any type of software project. Companies that can effectively use OSS (and have good legal counsel to help them be effective) have competitive advantages.
I am not saying your friend has to go back to school. Knowing the basics of software engineering is critical however to be an effective attorney in the open source area. You must also have good knowledge of copyright, patent, and trade secret laws. I do a lot of work in the compliance area (making sure my clients are not violating open source or other licenses from upstream providers) and I cannot even begin to recount how many times my legal opinion to a client has depended on the specifics of the architecture of a piece of software.
A career in law is too difficult to spend it practicing in an area you do not love.
Second, since the patent was filed after the open source commit, isn't the patent busted?
Outside the US, probably. In the US, the filing date is not the end-all-be-all. If Tandberg can prove it was the first to invent then a publication within one year prior to the filing date will not bar issuance of a patent. Publications more than one year before the filing date are an absolute bar regardless of whether an inventor can claim he/she was the first to invent.
Try checking the weblogs to see if you can prove that someone associated with the patent accessed the site before filing. Even then this could be a case where the claims of the patent are simply too broad and that an innovation is not accurately captured by the claims. In that case the claims can be amended. There is no proof that anyone copied anything yet, although I note that at least one other poster claims that the application and the code are *highly* similar.
If the invention is similar to what was done before, it is appropriate to cite the project's work as prior art. It is up to the patent applicant to convince an Examiner that the applicant's invention is different enough from the prior art to warrant issuance of a patent.
There are simply too many legitimate reasons that need to be excluded as possibilities before you can responsibly make accusations like the ones that have been made.
What I said was that there needs to be PROOF of a violation. And there are consequences - serious consequences - if it can be proven. But a LOT more facts are needed before allegations like this can be proven.
I speak assembly and also speak patent claims. All I said was that you ("you" in the generic sense - not necessarily targeted at the individual who posted the parent comments) cannot imply wrongdoing from the evidence presented so far. It is completely insufficient.
What is better is to proceed down the path you have identified. First, compare the claims and the specification to the previously published code. Next, I would want to see proof that the named inventors (or those working with the inventors) had access to the code. THEN you are beginning to put together a case.
It is possible for two people to invent the same thing around the same time - especially in this field where people are working with or building on published standards. The USPTO has a special proceeding - called an interference - that is all about determining which of two or more inventors was the first one to invent something and is thus entitled to a patent.
All I am saying here is that you should have a complete set of facts before making accusations like this.
What you linked to seems to me to be an example of someone inventing something that was already invented. That is *much* different from copying another's invention and claiming it as your own.
Slashdot Mirror
For all intensive purposes your saying the same thing.
Moron.
Don't you mean "you're" instead of "your" ?
Maroon.
#include
int main()
{
printf("Goodbye Dennis and thanks for all the code!");
}
The problem itself is simple. One party owns the copyright in the work and the other party gets an unrestricted, irrevocable (notice I said irrevocable and not "perpetual" - although long, copyright duration is not perpetual), non-exclusive license, including the right to sublicense and make derivative works to the work without the obligation to account to the other party. You can battle about which party owns and which party is licensed but with a license this broad, it is almost the same. However, 35 years from now when an assignment may be terminated (under US law if in the US) which party is which will make a difference.
This is a situation where one or two hours of time from an IP attorney who understands copyright licensing will avoid a LOT of issues later. Don't waste time looking for a prepackaged license that you may alter in ways that have unintended consequences later. This is a one-page agreement. Hire a lawyer to draft it for you.
You mean "there is no LTE or WiMax support" YET. This will surely fuel rumors that Spring will get the iPhone when v.5 is released, that v.5 will be LTE, and that Sprint is even beating out
Venue is the location of a court. There can be multiple venues within a certain geographical area. In many (most) states, each county has a trial court and a case that can be brought in one county may have its venue changed to another county. "Jurisdiction" has two common meanings applicable here, one derived from the other. First, when used as "personal jurisdiction," it is the power of a court to compel a party to appear before it. A "jurisdiction" is a territory within which a court can exercise its personal jurisdiction. "Subject matter jurisdiction" doesn't apply here, but it is the power of a court to hear certain types of cases.
... I am a lawyer. Isn't there just a TINY problem with a judge in the State of WASHINGTON issuing a search warrant for premises located in the State of CALIFORNIA?
This isn't a civil subpoena - it is a SEARCH WARANT. Hello? Jurisdiction anyone?
You have to be concerned with both patent and copyright. The patent will protect the functionality and structure - and may not be expired. Although 20 years has passed, patents can benefit from term extensions due to delays in processing at the USPTO. These term extensions can last for years, depending on the length of delay. Also, be aware that if in the public domain, the public has the right to use the inventions claimed by the patent (or disclosed but not claimed) - and EXACTLY those inventions. Improvements, feature additions, or other enhancements may be covered by another patent. This means that you can independently write code that would be covered by the patent if it was still in force.
As for the *code* that is protected by copyright. In the US, code authored by a company has a copyright of 95 years after publication. Code written by an individual probably has a copyright term of the duration of the life of the author plus 70 years after the author's death. You may not be able to copy the code without a license.
The intersection between patents and copyrights can be a tricky one for software. You should consult an experienced software IP attorney who represents you to get advice.
These events are typical. Although it is rough for the new lawyers to lack time to prepare, it is not uncommon for judges to refuse to give more time by delaying hearings. Judges have a lot of cases and need to keep all of them moving along.
As for turning over original documents, that is merely part of the discovery process in U.S. litigation. In fact, it would be exceptionally sloppy, indeed, perhaps even malpractice, for the defendants to fail to insist on the production of the originals whenever authenticity of a document (paper or electronic) is at issue.
The resignations of his law firms may be true setbacks, but there are lots of reasons why that could have happened. We'll probably never know why because of client confidentiality and privilege rules.
Apple's patent in this area is actually fairly simple to work around. It provides good coverage for Apple's design, but there is a lot of room for modifications.
... to infringe ("violate") *part* of a patent claim. Each claim at the end of a patent is separate. You either do everything one of the claims describes or you are missing something. If you do everything, you infringe the claim. If you are missing even one piece, you do not infringe.
HTTP may be prior art, but it is only *invalidating* prior art if it does everything that is described in the claims. New inventions necessarily build on old ones. There is nothing legally improper about claiming an invention that is based on something old. It is called an *improvement.*
The only one who created something from nothing was God. Everyone else has to work with what is already here.
a) Petition Congress to end fee diversion. Currently, the USPTO is not allowed to keep all the fees it generates.
b) Whose profit? See (a).
c) Read the US Supreme Court's opinion in KSR v. Teleflex. Then read the comments on that case by patent professionals.
I, for one, welcome our new human-brained robotic overlords.
... until McCoy says, "He's dead, Jim. He's dead."
The BC web page has already been modified to remove the entry about wireless routers. Another form of Slashdot effect?
Here lies the presumption of innocence. 1793 - 2011. R.I.P.
Now where did I put my Flux Capacitor? I could swear I left it right next to the DeLorean ....
I did and it was the best career move I ever made. My undergraduate degree was in a non-tech area. I spent the first 2 years of my practice at an international law firm doing banking and finance law. When I couldn't take it anymore I went back to school to get a formal education in Computer Science. At the end of the program, I had multiple offers to be an IP lawyer.
OSS is so pervasive now that every single company must take it into account when doing any type of software project. Companies that can effectively use OSS (and have good legal counsel to help them be effective) have competitive advantages.
I am not saying your friend has to go back to school. Knowing the basics of software engineering is critical however to be an effective attorney in the open source area. You must also have good knowledge of copyright, patent, and trade secret laws. I do a lot of work in the compliance area (making sure my clients are not violating open source or other licenses from upstream providers) and I cannot even begin to recount how many times my legal opinion to a client has depended on the specifics of the architecture of a piece of software.
A career in law is too difficult to spend it practicing in an area you do not love.
By other 8 year olds?
Second, since the patent was filed after the open source commit, isn't the patent busted?
Outside the US, probably. In the US, the filing date is not the end-all-be-all. If Tandberg can prove it was the first to invent then a publication within one year prior to the filing date will not bar issuance of a patent. Publications more than one year before the filing date are an absolute bar regardless of whether an inventor can claim he/she was the first to invent.
I have no idea how you got this information, but if true this is *exactly* the kind of scenario that I was talking about.
The "new functionality" point was pure speculation.
If the invention is similar to what was done before, it is appropriate to cite the project's work as prior art. It is up to the patent applicant to convince an Examiner that the applicant's invention is different enough from the prior art to warrant issuance of a patent.
There are simply too many legitimate reasons that need to be excluded as possibilities before you can responsibly make accusations like the ones that have been made.
What I said was that there needs to be PROOF of a violation. And there are consequences - serious consequences - if it can be proven. But a LOT more facts are needed before allegations like this can be proven.
What is better is to proceed down the path you have identified. First, compare the claims and the specification to the previously published code. Next, I would want to see proof that the named inventors (or those working with the inventors) had access to the code. THEN you are beginning to put together a case.
It is possible for two people to invent the same thing around the same time - especially in this field where people are working with or building on published standards. The USPTO has a special proceeding - called an interference - that is all about determining which of two or more inventors was the first one to invent something and is thus entitled to a patent.
All I am saying here is that you should have a complete set of facts before making accusations like this.
What you linked to seems to me to be an example of someone inventing something that was already invented. That is *much* different from copying another's invention and claiming it as your own.