Removing the presumption of validity would throw the baby out with the bathwater. Patents would be much less valuable if the prior prosecution and grant didn't mean anything. And as a sibling post said, it would raise the question of why anyone would pay fees to the USPTO for a meaningless piece of paper, and why even have the PTO?
As it is, we already try the validity of a patent (along with noninfringement, inequitable conduct, anti-trust, etc) in pretty much every patent case. And it only takes one district court in one case finding invalidity to unravel the patent everywhere (in contrast, a finding of validity is not binding on other district courts).
The answer if we want better quality patents is to ensure that happens at the patent examining phase, not turn every district court into a branch office of the PTO.
The article doesn't support the statement that the microbeads are toxic.
Is there any information that the microbeads are actually toxic?
True story. Had a friend in college who would tell you any chance he got to stay away from microbeads, they were the worst thing ever invented, Satan's gift to mankind, etc.
Seems he'd gotten a handjob from a girl who used microbead-laced lotion and it burned the hell out of his junk.
I'm thinking of starting a hotline, staffed by IP attorneys, where misguided belligerents and would-be Streisanders can call in.
"Hello, if you were thinking about making an absurd intellectual property claim that might get you fired, sued, or laughed at by the entire internet, press 1 now." (normal advice line)
"If you were thinking about making a perfectly reasonable threat, and you're positive it won't get you fired, sued, or laughed at by the entire internet, press 2 now." (emergency intervention line)
I thought about that. With a quick scan of TFA, I didn't see whether they were filing in the US or UK. Since the BBC has a solid presence in the US, it's conceivable TT could file here, especially if there were plans to broadcast the movie here.
If the suit is in the UK, I can't comment on the jurisprudence. IIRC, they have analogous (weaker) fair use provisions for copyright, not sure about trademark. Any input from a UK IP attorney would be welcome.
A more detailed treatment of the Warner Bros case, if you care I read. There were allegations of a counterfeit bag used as a prop, so the case isn't 100% identical. But it's on point for the proposition that First Amendment concerns in expressive works often trump Lanham Act claims.
Between the First Amendment protection for comment/criticism, nominative fair use (how do you do a movie about Take Two without saying "Take Two"?), and zero likelihood of confusion, I don't see how this case has any legs.
See also Louis Vuitton v. Warner Bros (LV's suit over bag scene in Hangover 2 dismissed). This is a good resource generally, though it deals mainly with advertising.
Slap a disclaimer at the beginning of the movie and call it a day. If they want to be extra safe, give it the subtitle "The Unauthorized Take Two Story" or something like that.
Ah but it's so clear! Dice fabricated this story in an intricate plot to get people to come to their news aggregation site Slashdot to post lots and lots of comments arguing politics.
They were counting on an extra boost from the people who come in to say "Hey that's not news for nerds!"
But the final thing that put them over the edge, earning them a coveted 6.2 Internets/$^2, was this very post unmasking their evil plot. By exposing the depth of their depravity, I have made them more powerful than I could ever imagine.
So you've never taken a taxi in a small town? This is pretty much how it works in rural america. The taxi driver drives his own car. You need a new word for that, too?
Honestly, I haven't. For years I had enough trouble getting a taxi in my large (non-NYC) city, and it's even worse where I grew up (both are top 25 US pop). Pretty much any place I go anymore, if I need to hire transportation, I'm not looking up the number for Yellow Cab... it's just much faster and more convenient to pop open the Uber app.
And I do think the Uber/Lyft paradigm is different enough to merit it's own terminology. If I tell a friend I'm taking a taxi, she doesn't think "Oh, he's hailing one of many different types of paid transportation services, one of which is popularly referred to as 'ridesharing.'" She thinks I flagged down an actual cab that was driving by.
Then again, I don't think that "tweep" and "freegan" are all that worthy of new words, but language marches on. Ridesharing isn't really a ride you share with a serendipitous stranger and a peanut is neither a pea nor a nut.
That's a very strange sentiment, given your sig. You don't actually advocate that governments require that, do you?
I think we can all agree that the majority of business on Uber or Lyft is not ridesharing under your definition. Drivers are going to destinations to pick up fares. So maybe the semantics are off on "ridesharing."
But in terms of the demographics, I think a much higher proportion of Uber drivers are able to part time taxi in addition to going to school or another job. In that sense, they are sharing their car and time with the Uber/Lyft pool, as opposed to a full time taxi driver with a bright yellow taxi cab.
The fact that you're in another person's non-taxi vehicle makes it different enough that it merits it's own word. And I can't think of a name that's catchier and more apt than ridesharing. I'm open to suggestions, though.
the regulations are there to make sure there is is possible to get a taxi at all times, the taxi companies get a monopoly on the good times in exchange for also driving at the bad times
I agree this is one of the reasons taxi regs (ostensibly) exist. I know they're not solely there to protect taxi monopolies.
However, in practice, I have only ever been unable to get an Uber once, when the entire region shut down in a snowstorm. On the other hand, I stopped using taxis precisely because I could never reliably get one, especially during the off times.
How are the Chinese American Family Coalition involved in this?
Good question! They filed a brief with the Court of Appeals for the Federal Circuit urging them to think of the children... specifically the Chinese children who build iPhones.
Outside, the Crematory Assistants for Cremation almost settled their long-running feud with the Cemetery Activist Funerary Club, but they couldn't decide whether to burn or bury the hatchet.
And the Canadians Against Feral Cats told them both, "I don't care which one of you does it, but someone has to pare the persistently problematic pussy population, doncha know?"
Did Samsung knowingly and intentionally copy the iPhone? Yes and yes.
The problem--and the Federal Circuit recognized this--is that Samsung copying Apple's "trade dress" was not something for which Apple could get damages, because the iPhone trade dress was functional and hence not protectable.
Trade dress is a subset of trademark law, and trademarks generally operate indefinitely. Trademarks cannot be functional, because if we allowed that, you could do an end run around the (constitutionally mandated) "limited time" afforded to patents. If your identifying feature happens to also be useful (e.g. it makes your phone more durable or usable), you can get a utility or design patent on it. But not a trademark.
Thus Samsung or anyone is free to copy any unprotectable trademark/trade dress material embodied in the iPhone. But notice that CAFC left the patent award intact.
I can just see these Predna scumweasels sitting down to lunch with a notebook and saying, "Shakedown ideas, go!"
"Ok, copyright. Got it. Patent? No we'd have to understand science stuff. Asbestos claims? Oversaturated. Same for good ol ambulance chasing. We could run the Nigerian prince scam... yeah put that in the maybe column. What about an actual, old school mafia protection racket? Too messy, plus we look like chodes, no one's going to be scared of us."
...
"Well the bathroom here has a handrail that's a half inch shorter than the Americans With Disabilities Act requires..."
I don't argue that intangible property doesn't matter, or is fundamentally not worth anything, because I don't believe that.
Rather, I argue that language has meaning and entrenched rightsholders like this ISTF are abusing language for their own gain. Theft already has both a legal and commonsense definition that requires the victim be deprived of the stolen thing.
Coopting words like theft and piracy is an attempt to take the very real negative emotions that go along with being robbed and deprived of a physical possession, and associate these emotions with the unauthorized duplication of bits. Copying isn't stealing. Breaking into a house to take pictures of a sculpture so you can 3D print it later isn't stealing. Stealing is stealing.
I'm not even arguing theft must always be of a tangible physical object; you can steal a trade secret because the value is in the secrecy, and appropriating that knowledge effectively deprives the victim of its entire value.
But if you download the latest Taylor Swift single, you're at most depriving her (label) of a single potential sale, to you. Nothing is stopping her from selling or licensing that song to anyone else. Nothing is stopping her or anyone else from enjoying their own copy. It's infringement, and it's still wrong. But it isn't theft.
Well, I do have an (unused) degree in that as well.
Same boat! Well, unused in the sense that I'm using it for patent law and not engineering.
Back when I was doing research, I actually spent some time working with metal oxide foams. We followed a general rule that the Navy probably follows, too: the material is a failure if it spontaneously bursts into flame in its intended operating environment.
The upshot: You are statistically unlikely to make enough money to raise the ire of $label_with_a_song_that_sounds_like_yours, but if you do and that song got even modest play in your region, they could come a-knockin.
The bottom line: If you're going for safety over listenability, maybe try weird chord progressions in odd time signatures. That will help your song sound less like any other song ever, and also help keep you from making too much money from people buying it.
Slashdot Mirror
Removing the presumption of validity would throw the baby out with the bathwater. Patents would be much less valuable if the prior prosecution and grant didn't mean anything. And as a sibling post said, it would raise the question of why anyone would pay fees to the USPTO for a meaningless piece of paper, and why even have the PTO?
As it is, we already try the validity of a patent (along with noninfringement, inequitable conduct, anti-trust, etc) in pretty much every patent case. And it only takes one district court in one case finding invalidity to unravel the patent everywhere (in contrast, a finding of validity is not binding on other district courts).
The answer if we want better quality patents is to ensure that happens at the patent examining phase, not turn every district court into a branch office of the PTO.
Sounds like they pretty much did this. So there are two lessons for any cops are reading:
1) If you want to blow up someone's stuff, just go ahead and do it and find some BS you can arrest them for later.
2) If you want to really publicize someone getting arrested for some BS, you should blow up their stuff, too.
Microbeads are used to exfoliate, so why would one use a cream designed to remove old skin and with chemicals and abrasion as lubrication?!
I'd wager youthful inexperience, poor lighting, and overeagerness. Strong motivation to use whatever was handy.
The article doesn't support the statement that the microbeads are toxic.
Is there any information that the microbeads are actually toxic?
True story. Had a friend in college who would tell you any chance he got to stay away from microbeads, they were the worst thing ever invented, Satan's gift to mankind, etc.
Seems he'd gotten a handjob from a girl who used microbead-laced lotion and it burned the hell out of his junk.
Even small to medium sized fish are found to have 10-20 beads in their digestive tract at any given time.
Which is a remarkably underwhelming number.
Not if he's talking about all fish everywhere. That's probably like... thousands of beads total.
I'm thinking of starting a hotline, staffed by IP attorneys, where misguided belligerents and would-be Streisanders can call in.
"Hello, if you were thinking about making an absurd intellectual property claim that might get you fired, sued, or laughed at by the entire internet, press 1 now." (normal advice line)
"If you were thinking about making a perfectly reasonable threat, and you're positive it won't get you fired, sued, or laughed at by the entire internet, press 2 now." (emergency intervention line)
K, shit's going down in England, the First Amendment is irrelevant, fine. Damned US-centric worldview + hasty article skim, bit me in the ass.
Anything to add about UK trademark law? Or... you know I could go for some more posts about why American law won't apply.
I thought about that. With a quick scan of TFA, I didn't see whether they were filing in the US or UK. Since the BBC has a solid presence in the US, it's conceivable TT could file here, especially if there were plans to broadcast the movie here.
If the suit is in the UK, I can't comment on the jurisprudence. IIRC, they have analogous (weaker) fair use provisions for copyright, not sure about trademark. Any input from a UK IP attorney would be welcome.
A more detailed treatment of the Warner Bros case, if you care I read. There were allegations of a counterfeit bag used as a prop, so the case isn't 100% identical. But it's on point for the proposition that First Amendment concerns in expressive works often trump Lanham Act claims.
Between the First Amendment protection for comment/criticism, nominative fair use (how do you do a movie about Take Two without saying "Take Two"?), and zero likelihood of confusion, I don't see how this case has any legs.
See also Louis Vuitton v. Warner Bros (LV's suit over bag scene in Hangover 2 dismissed). This is a good resource generally, though it deals mainly with advertising.
Slap a disclaimer at the beginning of the movie and call it a day. If they want to be extra safe, give it the subtitle "The Unauthorized Take Two Story" or something like that.
Ah but it's so clear! Dice fabricated this story in an intricate plot to get people to come to their news aggregation site Slashdot to post lots and lots of comments arguing politics.
They were counting on an extra boost from the people who come in to say "Hey that's not news for nerds!"
But the final thing that put them over the edge, earning them a coveted 6.2 Internets/$^2, was this very post unmasking their evil plot. By exposing the depth of their depravity, I have made them more powerful than I could ever imagine.
A peanut is a pea. Fabaceae
Sure, but then a peanut is also kudzu, and we're also orangutans.
To the freegan with the mod points: I'm sorry, your people really do deserve a word!
So you've never taken a taxi in a small town? This is pretty much how it works in rural america. The taxi driver drives his own car. You need a new word for that, too?
Honestly, I haven't. For years I had enough trouble getting a taxi in my large (non-NYC) city, and it's even worse where I grew up (both are top 25 US pop). Pretty much any place I go anymore, if I need to hire transportation, I'm not looking up the number for Yellow Cab... it's just much faster and more convenient to pop open the Uber app.
And I do think the Uber/Lyft paradigm is different enough to merit it's own terminology. If I tell a friend I'm taking a taxi, she doesn't think "Oh, he's hailing one of many different types of paid transportation services, one of which is popularly referred to as 'ridesharing.'" She thinks I flagged down an actual cab that was driving by.
Then again, I don't think that "tweep" and "freegan" are all that worthy of new words, but language marches on. Ridesharing isn't really a ride you share with a serendipitous stranger and a peanut is neither a pea nor a nut.
That's a very strange sentiment, given your sig. You don't actually advocate that governments require that, do you?
I think we can all agree that the majority of business on Uber or Lyft is not ridesharing under your definition. Drivers are going to destinations to pick up fares. So maybe the semantics are off on "ridesharing."
But in terms of the demographics, I think a much higher proportion of Uber drivers are able to part time taxi in addition to going to school or another job. In that sense, they are sharing their car and time with the Uber/Lyft pool, as opposed to a full time taxi driver with a bright yellow taxi cab.
The fact that you're in another person's non-taxi vehicle makes it different enough that it merits it's own word. And I can't think of a name that's catchier and more apt than ridesharing. I'm open to suggestions, though.
the regulations are there to make sure there is is possible to get a taxi at all times, the taxi companies get a monopoly on the good times in exchange for also driving at the bad times
I agree this is one of the reasons taxi regs (ostensibly) exist. I know they're not solely there to protect taxi monopolies.
However, in practice, I have only ever been unable to get an Uber once, when the entire region shut down in a snowstorm. On the other hand, I stopped using taxis precisely because I could never reliably get one, especially during the off times.
How are the Chinese American Family Coalition involved in this?
Good question! They filed a brief with the Court of Appeals for the Federal Circuit urging them to think of the children... specifically the Chinese children who build iPhones.
Outside, the Crematory Assistants for Cremation almost settled their long-running feud with the Cemetery Activist Funerary Club, but they couldn't decide whether to burn or bury the hatchet.
And the Canadians Against Feral Cats told them both, "I don't care which one of you does it, but someone has to pare the persistently problematic pussy population, doncha know?"
Did Samsung knowingly and intentionally copy the iPhone? Yes and yes.
The problem--and the Federal Circuit recognized this--is that Samsung copying Apple's "trade dress" was not something for which Apple could get damages, because the iPhone trade dress was functional and hence not protectable.
Trade dress is a subset of trademark law, and trademarks generally operate indefinitely. Trademarks cannot be functional, because if we allowed that, you could do an end run around the (constitutionally mandated) "limited time" afforded to patents. If your identifying feature happens to also be useful (e.g. it makes your phone more durable or usable), you can get a utility or design patent on it. But not a trademark.
Thus Samsung or anyone is free to copy any unprotectable trademark/trade dress material embodied in the iPhone. But notice that CAFC left the patent award intact.
I can just see these Predna scumweasels sitting down to lunch with a notebook and saying, "Shakedown ideas, go!"
...
"Ok, copyright. Got it. Patent? No we'd have to understand science stuff. Asbestos claims? Oversaturated. Same for good ol ambulance chasing. We could run the Nigerian prince scam... yeah put that in the maybe column. What about an actual, old school mafia protection racket? Too messy, plus we look like chodes, no one's going to be scared of us."
"Well the bathroom here has a handrail that's a half inch shorter than the Americans With Disabilities Act requires..."
Oblig. Weird Al.
Wait is that not The Edge you were talking about?
I don't argue that intangible property doesn't matter, or is fundamentally not worth anything, because I don't believe that.
Rather, I argue that language has meaning and entrenched rightsholders like this ISTF are abusing language for their own gain. Theft already has both a legal and commonsense definition that requires the victim be deprived of the stolen thing.
Coopting words like theft and piracy is an attempt to take the very real negative emotions that go along with being robbed and deprived of a physical possession, and associate these emotions with the unauthorized duplication of bits. Copying isn't stealing. Breaking into a house to take pictures of a sculpture so you can 3D print it later isn't stealing. Stealing is stealing.
I'm not even arguing theft must always be of a tangible physical object; you can steal a trade secret because the value is in the secrecy, and appropriating that knowledge effectively deprives the victim of its entire value.
But if you download the latest Taylor Swift single, you're at most depriving her (label) of a single potential sale, to you. Nothing is stopping her from selling or licensing that song to anyone else. Nothing is stopping her or anyone else from enjoying their own copy. It's infringement, and it's still wrong. But it isn't theft.
What kind of crazy, Wild West law allows anyone to legally break into a movie studio and abscond with the film masters for up to 6 movies?!!
Ohh, they were doing that thing with the word "steal" again, where they accidentally used it instead of "make a copy in violation of copyright law."
Well, I do have an (unused) degree in that as well.
Same boat! Well, unused in the sense that I'm using it for patent law and not engineering.
Back when I was doing research, I actually spent some time working with metal oxide foams. We followed a general rule that the Navy probably follows, too: the material is a failure if it spontaneously bursts into flame in its intended operating environment.
The good news: Independent creation is a complete defense to copyright infringement.
The bad news: You can still be liable for subconscious copying.
The upshot: You are statistically unlikely to make enough money to raise the ire of $label_with_a_song_that_sounds_like_yours, but if you do and that song got even modest play in your region, they could come a-knockin.
The bottom line: If you're going for safety over listenability, maybe try weird chord progressions in odd time signatures. That will help your song sound less like any other song ever, and also help keep you from making too much money from people buying it.
Slow clap from a Materials Engineer.