Why isn't Secunia being flamed here for releasing details of an exploit before Apple has had a chance to patch it? Are there not enough details for someone to create their own version? I may be wrong, but I did not notice one mention of any fact that indicates that Apple was notified of the problem and/or given an opportunity to fix the problem. I am used to seeing such information releases eing labeled as "irresponsible" but I have not seen any discussion of this aspect of the story yet.
"...replacements are readily available at affordable prices..."
In other words, because the RIAA thinks CD prices are "affordable," consumers should be forced to repurchase music, thereby further adding to the industry's profits, instead of being able to protect and preserve the investment the consumer made by making backup copies for personal use. This is the worst argument I have ever heard.
When you buy a piece of real estate, contrary to popular belief, you are not buying the actual land - you are buying a bundle of rights to use the land. Your ownership of that bundle of rights is evidenced by a deed. If you lose the physical deed, you don't have to buy the real estate again - you GET A COPY of the deed from the local registry of deeds. Here, when a consumer has damaged media, the consumer, in my humble opinion as an intellectual property lawyer, HAS EVERY RIGHT IN THE WORLD UNDER THE DOCTRINE OF FAIR USE TO SIMPLY REPLACE THE MEDIA WITH A BACKUP COPY.
In fact, I would go so far as to take the position that forcing consumers to repurchase music is a misuse of the copyright associated with the piece of music involved.
I could not agree more. That's why I put trivial in quotes. Personally, I spend anywhere between 40% to 60% of the time I spend writing a patent application just on the claims.
It's funny how Anonymous Cowards always have to launch personal attacks instead of commenting on post topics. You've proven you cannot count how many times I've posted in this thread. We get the idea. You don't like lawyers. Join the club.
By the way - I think it is a universally accepted axiom (at least as universally accepted as the Theory of Evolution - but that's a topic for another post...) that it is better to catch errors at the beginning of a process to prevent errors in the finished product than it is to perform quality control at the end of the process to attempt to fix the end product. In the US (and some other countries) you need a license to file your patent application in a foreign country. Generally the license is automatically granted when the filing is confirmed by the USPTO, but nevertheless you still need the license. If you send an unfiled patent application for an invention created in the US out of the country for proofreading, you may have violated export control laws.
Experience with Indian proofreaders and patent drafters. Simply put, been there - done that. Horrible results, in my experience. Then again, I've had the same experience with others who use English as a second (or third, or more) language. I have found good patent drafters who spoke English as a second language, but only a very few.
In Chef America, Inc. v. Lamb-Westin, Inc. the Court of Appeals for the Federal Circuit (the US Appeals court that hears all appeals in patent cases) found US Patent No. 4,761,290 to be not infringed because the claim used the word "to" instead of "at." Quoth the Court:
The sole issue in this appeal is the meaning of the following language in a patent
claim: "heating the resulting batter-coated dough to a temperature in the range of about
400 F. to 850 F." The question is whether the dough itself is to be heated to that
temperature (as the district court held), or whether the claim only specifies the temperature
at which the dough is to be heated, i.e., the temperature of the oven (as the appellant
contends). We agree with the district court that the claim means what it says (the dough is
to be heated "to" the designated temperature range) and therefore affirm [the trial court's finding of non-infringement].
As most people know, dough heated to 850 degrees F. is no longer dough - it is charcoal. Not the most effective result for a process that is intended to result in the production of an edible substance.
BTW - the two law firms who tried this case are two of the top firms in the US. I am confident that the parties each spent hundreds of thousands of dollars arguing over a single word. And a very short word at that.
That's why the USPTO has something called a "Certificate of Correction." Many of the mistakes are allowed to remain because it isn't worth the cost of filing for correction. I'll be the first to admit that many others are there because of a lack of due care. However, careful practitioners have at least one other person (more often two other people) besides the drafter proofread the application before it is sent to the PTO and the drafter also proofs the published patent if the application is allowed to issue. Despite what the linked article claims, this is NOT an appropriate activity to be offshored. It requires not only careful reading but mastery of both the English language and the technical terms of art. The USPTO is much like a computer in at least one respect - it follows the GIGO rule for data processing.
"... lack the literacy to handle complex, real-life tasks such as understanding credit card offers."
A lack of literacy is a problem, but this example is pretty bad. Most credit card offers today have "features" like multiple interest rates that are applicable based upon various contingencies and multiple-month rolling interest rates. Most attorneys lack the literacy to comprehend these offers, let along the average college student.
The patent may have issued in 2004 but the priority date (the earliest filing date that the patent can take advantage of) is 1997. Also, just from the list of references cited, it appears that this patent was examined more thoroughly than many software patents I have seen.
...it is in the standard license agreement does not mean you have to accept it. These are not EULAs for off-the-[NAME OF FAVORITE RETAILER HERE]-shelf shrinkwrapped software. You'll be surprised at how much you can negotiate - especially at the end of a business quarter (the seller's - not the buyer's).
The (L)GPL is/are copyright licenses. One of the rights a copyright holder enjoys is the right to control copying. Assuming that Sony, as it pressed each disk, made a copy of the software onto each disk, it is an infringer. The developer may be as well, but the fact that Sony got the code from a 3rd party does not immunize it from copyright violations.
Of course your software may just suck and you'd be better off spending your money elseware.
Or maybe he is an extremely talented developer who writes such high-quality code that his company recognizes it can give him valuable IP rights in lieu of a salary increase it cannot afford.
As for your stock purchase suggestion - I'd recommend buying only those stocks you have thoroughly researched and make only well-informed stock purchases. I also recommend against engaging in stock transactions when you possess inside information. The SEC generally frowns on that type of trading.
As for your poker suggestion, I'd stick with the stocks personally. I feel badly having to take money from people sitting across a table from me.
But, in the off chance that his work product potentially has little or no value, he probably should spend his money elseWHERE instead of trying to protect IP rights in his softWARE that wouldn't sell anyWHERE. Under no circumstances should he show any entrepreneurial spirit at all or take any sort of risk whatsoever. If people started doing those kinds of things, what kind of society would we have then? It would be chaos! Utter chaos I tell you!
In that case I humbly retract my previous sarcastic comment and thank you for your compliment. I plead guilty to having a persecution complex when I post in certain threads.
Yes, I am an IP lawyer. However, you will find that any amount you spend getting an IP attorney who represents YOUR interests to draft an enforceable contract will pay for itself many times over just with the prevention of headaches and disputes. You are lucky to work at a company that will allow you to retain ownership in the IP you create. Keep in mind that you have no way of knowing with 100% certainty what the value of IP you create in the future will be. Best to make a small investment now in case there is a potentially large payoff later.
You are talking about 2 different phases - prosecution in the USPTO and post-issuance litigation. The "rigorous prior art search SHOULD first be done in the USPTO. THEN it is done again by a defendant in litigation. A defendant has the right to defend on the basis that the patent is invalid. The defendant just has to find the invalidating art.
The EA policy is not for "plausible deniability." It is to avoid gaining knowledge of another's patent through its employees and then being potentially liable for willful infringement. Many companies have this same policy, both in and OUT of the software industry.
Once in litigation, where the triple damages award is a potential, you tell me - do you have a bigger incentive to try to find invalidating prior art if you have to pay $1 million or $3 million?
My apologies if I misinterpreted your post. Actually, my complaint is about lack of resources that the money can provide. I do not see anything fundamanetally wrong with diverting fees from the PTO - provided that it still has sufficient resources to do the job properly. I see a lot of overreaching by Congress to divert money to the point where the PTO can no longer do its job correctly. Congress's attitude toward the PTO seems to be "You'll manage with what we give you." It should be "Let us know what you don't need because there are other things overages can be used for."
Mandate that lawyers are only paid on a successful patent application. This creates an inital check in the processess. People don't like to work for free.
Sorry, I cannot agree with this one. Every inventor is entitled to a patent (yes, entitled - the law says a patent shall issue) if the conditions are met. It is impossible for me to know all the art in the field and as I am only human, I may make a mistake lookfor the art even if I had a perfect search system. If an examiner comes up with a piece of killer prior art, the application will be abandoned and no patent will issue from that application. Why should 60+ hours of my work be for nothing?
That said, there are patent lawyers who will work on a contingent fee basis. No fee unless a patent issues. However, there is a danger there. If you add enough requirements to a claim, you can get virtually any application to issue as a patent. However, the patent is worthless because it will be so difficult to infringe that no one will. It will also be easy to design around the patent claims. Ethically, I am supposed to be able to render a valuable service to my clients. Contingent fees can, in some circumstances, conflict with that duty. Not always, but sometimes.
Require federal and state governments to keep funding and revenue within the departments they are generated in.
As for state Gov'ts, there are Constitutional problems with the Feds trying to dictate how States run their finances. As for the Fed Govt., I believe the IRS and the USPTO are the only profit centers. If both those departments have to keep all the revenue they generate, how do the other departments get operating capital? You'd end up with a nightmarish web of fee upon fee upon fee...
For example, say you lost your job. You'd have to pay a fee to make an unemployment claim. Then you'd have to pay a processing fee for that claim. Then an investigation fee for the same claim. Then an approval fee once it was approved. Then a check fee every time you collected a check. And don't forget to pay the report fees when you report that you are actively looking for a job. And my no means should you forget to pay taxes on the compensation - then the IRS will be at your door.
Structure the patent review process similar to jury duty. Last phase of the patent application is a jury review.
I have to disagree with that idea as well. In fact, the trend is to take issues away from juries in patent litigation because of the uncertainty. One of the leading suggestions in the area is to create specialized patent juries who are experts in the art fields and have them be professional jurors. Examiners are generally competent - the PTO just needs more of them and needs to keep the ones it has.
Slashdot Mirror
Why isn't Secunia being flamed here for releasing details of an exploit before Apple has had a chance to patch it? Are there not enough details for someone to create their own version? I may be wrong, but I did not notice one mention of any fact that indicates that Apple was notified of the problem and/or given an opportunity to fix the problem. I am used to seeing such information releases eing labeled as "irresponsible" but I have not seen any discussion of this aspect of the story yet.
"...replacements are readily available at affordable prices..."
In other words, because the RIAA thinks CD prices are "affordable," consumers should be forced to repurchase music, thereby further adding to the industry's profits, instead of being able to protect and preserve the investment the consumer made by making backup copies for personal use. This is the worst argument I have ever heard.
When you buy a piece of real estate, contrary to popular belief, you are not buying the actual land - you are buying a bundle of rights to use the land. Your ownership of that bundle of rights is evidenced by a deed. If you lose the physical deed, you don't have to buy the real estate again - you GET A COPY of the deed from the local registry of deeds. Here, when a consumer has damaged media, the consumer, in my humble opinion as an intellectual property lawyer, HAS EVERY RIGHT IN THE WORLD UNDER THE DOCTRINE OF FAIR USE TO SIMPLY REPLACE THE MEDIA WITH A BACKUP COPY.
In fact, I would go so far as to take the position that forcing consumers to repurchase music is a misuse of the copyright associated with the piece of music involved.
I for one welcome our new obesity-causing viral overlords.
I could not agree more. That's why I put trivial in quotes. Personally, I spend anywhere between 40% to 60% of the time I spend writing a patent application just on the claims.
The document can be referred to as a patent application - the document itself just has not entered the application process.
Got me with that one.
It's funny how Anonymous Cowards always have to launch personal attacks instead of commenting on post topics. You've proven you cannot count how many times I've posted in this thread. We get the idea. You don't like lawyers. Join the club.
By the way - I think it is a universally accepted axiom (at least as universally accepted as the Theory of Evolution - but that's a topic for another post ...) that it is better to catch errors at the beginning of a process to prevent errors in the finished product than it is to perform quality control at the end of the process to attempt to fix the end product. In the US (and some other countries) you need a license to file your patent application in a foreign country. Generally the license is automatically granted when the filing is confirmed by the USPTO, but nevertheless you still need the license. If you send an unfiled patent application for an invention created in the US out of the country for proofreading, you may have violated export control laws.
Experience with Indian proofreaders and patent drafters. Simply put, been there - done that. Horrible results, in my experience. Then again, I've had the same experience with others who use English as a second (or third, or more) language. I have found good patent drafters who spoke English as a second language, but only a very few.
The sole issue in this appeal is the meaning of the following language in a patent claim: "heating the resulting batter-coated dough to a temperature in the range of about 400 F. to 850 F." The question is whether the dough itself is to be heated to that temperature (as the district court held), or whether the claim only specifies the temperature at which the dough is to be heated, i.e., the temperature of the oven (as the appellant contends). We agree with the district court that the claim means what it says (the dough is to be heated "to" the designated temperature range) and therefore affirm [the trial court's finding of non-infringement].
As most people know, dough heated to 850 degrees F. is no longer dough - it is charcoal. Not the most effective result for a process that is intended to result in the production of an edible substance.
BTW - the two law firms who tried this case are two of the top firms in the US. I am confident that the parties each spent hundreds of thousands of dollars arguing over a single word. And a very short word at that.
That's why the USPTO has something called a "Certificate of Correction." Many of the mistakes are allowed to remain because it isn't worth the cost of filing for correction. I'll be the first to admit that many others are there because of a lack of due care. However, careful practitioners have at least one other person (more often two other people) besides the drafter proofread the application before it is sent to the PTO and the drafter also proofs the published patent if the application is allowed to issue. Despite what the linked article claims, this is NOT an appropriate activity to be offshored. It requires not only careful reading but mastery of both the English language and the technical terms of art. The USPTO is much like a computer in at least one respect - it follows the GIGO rule for data processing.
A lack of literacy is a problem, but this example is pretty bad. Most credit card offers today have "features" like multiple interest rates that are applicable based upon various contingencies and multiple-month rolling interest rates. Most attorneys lack the literacy to comprehend these offers, let along the average college student.
The patent may have issued in 2004 but the priority date (the earliest filing date that the patent can take advantage of) is 1997. Also, just from the list of references cited, it appears that this patent was examined more thoroughly than many software patents I have seen.
...it is in the standard license agreement does not mean you have to accept it. These are not EULAs for off-the-[NAME OF FAVORITE RETAILER HERE]-shelf shrinkwrapped software. You'll be surprised at how much you can negotiate - especially at the end of a business quarter (the seller's - not the buyer's).
The (L)GPL is/are copyright licenses. One of the rights a copyright holder enjoys is the right to control copying. Assuming that Sony, as it pressed each disk, made a copy of the software onto each disk, it is an infringer. The developer may be as well, but the fact that Sony got the code from a 3rd party does not immunize it from copyright violations.
Thanks for sharing the burden of shining the light of legal reasoning into the darkness of FUD.
Not weird at all. A friend of mine collects them as well. That's how I got my first light.
Flashlight: A small LED Light. This one fits in the palm of your hand and comes with 5 extra batteries.
Multitool: One of these should do nicely.
Or maybe he is an extremely talented developer who writes such high-quality code that his company recognizes it can give him valuable IP rights in lieu of a salary increase it cannot afford.
As for your stock purchase suggestion - I'd recommend buying only those stocks you have thoroughly researched and make only well-informed stock purchases. I also recommend against engaging in stock transactions when you possess inside information. The SEC generally frowns on that type of trading.
As for your poker suggestion, I'd stick with the stocks personally. I feel badly having to take money from people sitting across a table from me.
But, in the off chance that his work product potentially has little or no value, he probably should spend his money elseWHERE instead of trying to protect IP rights in his softWARE that wouldn't sell anyWHERE. Under no circumstances should he show any entrepreneurial spirit at all or take any sort of risk whatsoever. If people started doing those kinds of things, what kind of society would we have then? It would be chaos! Utter chaos I tell you!
In that case I humbly retract my previous sarcastic comment and thank you for your compliment. I plead guilty to having a persecution complex when I post in certain threads.
Yawn. Another "lawyers suck" post. Wake me when you post something original.
Yes, I am an IP lawyer. However, you will find that any amount you spend getting an IP attorney who represents YOUR interests to draft an enforceable contract will pay for itself many times over just with the prevention of headaches and disputes. You are lucky to work at a company that will allow you to retain ownership in the IP you create. Keep in mind that you have no way of knowing with 100% certainty what the value of IP you create in the future will be. Best to make a small investment now in case there is a potentially large payoff later.
At least entropy is still around!
For now ....
The EA policy is not for "plausible deniability." It is to avoid gaining knowledge of another's patent through its employees and then being potentially liable for willful infringement. Many companies have this same policy, both in and OUT of the software industry.
Once in litigation, where the triple damages award is a potential, you tell me - do you have a bigger incentive to try to find invalidating prior art if you have to pay $1 million or $3 million?
Mandate that lawyers are only paid on a successful patent application. This creates an inital check in the processess. People don't like to work for free.
Sorry, I cannot agree with this one. Every inventor is entitled to a patent (yes, entitled - the law says a patent shall issue) if the conditions are met. It is impossible for me to know all the art in the field and as I am only human, I may make a mistake lookfor the art even if I had a perfect search system. If an examiner comes up with a piece of killer prior art, the application will be abandoned and no patent will issue from that application. Why should 60+ hours of my work be for nothing?
That said, there are patent lawyers who will work on a contingent fee basis. No fee unless a patent issues. However, there is a danger there. If you add enough requirements to a claim, you can get virtually any application to issue as a patent. However, the patent is worthless because it will be so difficult to infringe that no one will. It will also be easy to design around the patent claims. Ethically, I am supposed to be able to render a valuable service to my clients. Contingent fees can, in some circumstances, conflict with that duty. Not always, but sometimes.
Require federal and state governments to keep funding and revenue within the departments they are generated in.
As for state Gov'ts, there are Constitutional problems with the Feds trying to dictate how States run their finances. As for the Fed Govt., I believe the IRS and the USPTO are the only profit centers. If both those departments have to keep all the revenue they generate, how do the other departments get operating capital? You'd end up with a nightmarish web of fee upon fee upon fee...
For example, say you lost your job. You'd have to pay a fee to make an unemployment claim. Then you'd have to pay a processing fee for that claim. Then an investigation fee for the same claim. Then an approval fee once it was approved. Then a check fee every time you collected a check. And don't forget to pay the report fees when you report that you are actively looking for a job. And my no means should you forget to pay taxes on the compensation - then the IRS will be at your door.
Structure the patent review process similar to jury duty. Last phase of the patent application is a jury review.
I have to disagree with that idea as well. In fact, the trend is to take issues away from juries in patent litigation because of the uncertainty. One of the leading suggestions in the area is to create specialized patent juries who are experts in the art fields and have them be professional jurors. Examiners are generally competent - the PTO just needs more of them and needs to keep the ones it has.