The morons complain that the guy "spammed" the ISP's customers. He sent ONE email . ..
If you are correct, he would have an excellent defense. That is, if you are correct.
If he posts it ANYWHERE in public, he gets hit with the same charge.
Think so? Have you read the information (criminal complaint)? What law do you think he is alleged to have broken?
I agree with you -- if the facts are as our colleagues have reported, the government will have no play at all in sticking our client with criminal charges. Proof beyond a reasonable doube will be nigh impossible, and the elements of no known computer crime statute is implicated.
This suggests to me that the account we have seen thus far is, well, incomplete.
There are three kinds of arguments: (1) Patents are bad; (2) software patents are bad; and (3) bad software patents are bad.
No reasonable person disagrees with (3), and frankly, you will never get traction on (1) in a modern industrialized nation -- while clearly YOU don't like patents, and have your rants in support, the other view has clearly prevailed in most fora. Interestingly, most arguments against software patents really only fall into the (1) and (3) categories, not distinguishing software patents meaningfully from patents-at-large, and not really getting to the merits, but rather whining about one or another allegedly bad patent.
This is why the anti-software patent movement has gained zero traction -- they can't seem to persuade anyone but those who have begun assuming their conclusion.
Hmmh. You call his 'bluff' ("back it up with facts"), while doing exactly the same: claiming patents do benefit society as whole via R'n D, without any pointers to anything to back it up. Just your opinion (and vaguely implying others agree). Gee, that's convincing argument there.
Well, there is quite a convincing correlation -- nations with strong patent laws have a strong technical advantage today, for whatever reason. Admitted that this is not by itself not proof of the cause and effect relationship, which is far beyond the scope of these notes.
My criticism was not so much of that point, which I agree is a deep and very interesting debate, but of the suggestion without more, that a heavily litigated patent that was unsuccessfully defended by one of the world's great economic interests is somehow frivolous.
Finally, claiming big companies want relaxed patent (copyright, trademark) laws is patently absurd.
IBM, Motorola, Lucent, Microsoft, GM and a host of other huge technology players all supported recent harmonization efforts. Independent inventors opposed. You may think it absurd, but look who testified for what, and draw your own conclusion.
It shows silliness because of the content of the patent. This isn't something non-obvious or hard to research. It's plugins! It's like patenting vulcanization and then suing every tire manufacturer after they've been doing it for years.
Of course that isn't the case -- the claim is narrower than you suggest, and was construed to be narrower than that by the Court. Your next suggestion?
Again, we are talking about a specific set of frivolous patents, so yes there is alot of evidence that they hurt innovation.
So frivolous that even Microsoft's legion of attorneys couldn't put two and two together to find ANY probative prior art to invalidate it. Your next suggestion?
I wrote: Odd how many inidividual inventors seem to make the biggest political push for stronger patent laws, with large companies tending to push for more relaxed "patent harmonization" approaches.
He responded: Talk about presenting evidence to backup your claims....
This isn't a close question -- only the truly clueless needs to askforfurtherevidence -- anybody who followed the recent harmonization battles knows who the players are.
Although the case you describe could be seen to set a precedent against preemption it is also a case of a much more worrying precedent, that is it is a case of judges coming to a conclusion that flies in the face of the law and logic.
I wish that were so. The truth is far more interesting.
While I believe "our side" has the better side of that argument, Judge Rader's analysis is far from the illogical or illegal claptrap you suggest -- indeed, he is also far from alone, the 7th Circuit in ProCD began this particular line of analysis -- it is simply my view that the fair use and first sale issues are in some sense more fundamental statements of Federal policy than the quibbles in the ProCd and the utter silliness of the present GPL argument. There is more than ample precedent to explain these cases, and ultimately, I think, Bowers will be rejected over conflicting law, without exposing this Section 117 argument.
Comforted by the conflicting Vault v. Quaid case, which holds to the contrary concerning no-reverse-engineering provisions, and on grounds irrelevant to Bois' argument, I think justice ultimately will be done in each line of cases.
Preemption of a license agreement is a dead loss argument these days. The Federal Circuit took up that question in a far more important context: enforceability of a no-reverse-engineering provision. Their answer: no preemption.
In theBowers v. Baystate opinion, the Federal Circuit considered the enforceability under Copyright preemption of a shrink-wrap no-reverse engineering provision. They held that there can be no preemption of a contract, even if it flies squarely into fundamental Copyright Policy like fair use and first sale doctrine. The Section 117 provision argument here is a far, far more attenuated argument.
Though it is pretty clear to me that provisions like the no-reverse-engineering clauses are clearly unconstitutional, I couldn't get the Supreme Court to get excited enough to take up the case in my Amicus brief on behalf of IEEE policy on no-reverse-engineering clauses. Maybe next time.
But in the meanwhile, Boies et al. are running squarely into the teeth of the most recent Circuit Court case addressing the point, and it won't be pretty for them.
Its odd for them to abandon a market space, rather than leave it weakly filled -- that simply presents an opportunity for an excellent alternative client to fill, and another foothold to grab, in the ancilliary-to-OS marketplace.
Anyway, good news. Far too many people used that claptrap instead of a real client -- now we can offer an alternative that is actually likely to be used.
By negating the need for a court order to be allowed to send these orders . . .
Say what? Learn the rules for notice and takedown. All you have to do is respond, and the ISP is obliged to bring it back up until the putative plaintiff sues.
At least they should be held liable for any damages if an ISP removes contents that they claim are infringing.
The DMCA provides for penalties and fees in the case of DMCA notice-and-takedown abuse.
This case clearly shows how silly software patent-laws are. With guns and sanctions they dictate who can use what technology, because someone were "first". Come on! Most of us stopped such silliness in the kindergarden.
In what way does it manifest silliness? It would seem to me to be a case entirely free from vapid claims of validity (microsoft hit with a full court press, and lost) or infringement (likewise, microsoft threw full guns at it, and lost).
To the contrary, the case shows the seriousness of these law and their claims when properly applied.
Who's going to risk developing stuff when you're sued left and right before you even know somebody filed a patent for it while you RDed?
Everybody. The patent system has driven R&D in the United States for more than two hundred years.
This can potentially kill off alot of inventing.
There is lots of evidence to the contrary. What do you have to support your proposition.
Without somebody with lots of money backing you up, it's a risky business.. Which is what the big corporations want anyways, so maybe Microsoft will settle this one in the end.
If you say so. Odd how many inidividual inventors seem to make the biggest political push for stronger patent laws, with large companies tending to push for more relaxed "patent harmonization" approaches.
I was answering your rhetorical question, "How could a jury ever be wrong about a patent?"
You were answering a straw man. I never asked that question. My point was not that juries or courts are infallible, my point was that language such as "frivolous" has no place after all that due process did not find the presumed result.
IIn a discussion, people are not immediately obliged to "evidecnce your point", "fully support your position", or "provide grounds to assert". I'm not making an "allegation"; I gave my opinion. If you are interested in how I came by it, you're welcome to ask.
Indeed, some of us are more circumspect than others in forming opinions about circumstances than others. I tend to like my opinions being informed by facts and evidence. Others enjoy demagoguery and belief as the predicates for theirs.
My observation was not that you didn't have a right to form your opinion, or even that your opinion was not supported by facts -- only that to the extent you had any sound basis for it, you certainly didn't bother to share it in your writings.
And as a guy who works in Silicon Valley and who has been doing web stuff since gopher was the dominant tool, I think I have some knowledge of the practical effects of IP law on innovation, and also on the obviousness of particular inventions.
Yeah, I've invented and writen a bunch too. But before you spout out about whether my views about obviousness (in your plain vernacular) relate at all to the validity of a patent, perhaps you should consider the meaning of that term of art as used under Section 103 of the Patent Act -- it clearly doesn't mean what you think it means.
So, you list a law firm as your web page and you do not emphasis the significant distinction between a a preliminary and permanent injunction?
I didn't emphasize many important distinctions, true -- in fact, I wasn't addressing that point at all. With all due respect, I didn't think it relevant, and wasn't inclined to write a treatise about irrelevant things.
I don't see anywhere a relationship between irreparable harm and a permanent injunction.
So look deeper. Consider actual sources of law, many of which are available on the internet, rather than sources of summaries of the law.
Section 283 of the patent act provides that injunctions (permanent and termporary) will issue in accordance with "the principles of equity," which is a legal term referring not to general niceness, but to a particular body of law --equity-- which requires "irreparable harm" as a precondition to the issuance of an injunction. While a showing of patent validity gives rise to a presumption of irreparable harm, the presumption can be rebutted by evidence of record. It is rare a permanent injunction is denied, but facts could exist where it would be inappropriate.
I haven't looked at this patent closely, but I've seen a lot of others that are indeed moronic
so, it may not be obviously frivilous, but may be indeed moronic? give me a break. if you are clueless about the particulars of the patent, you have no basis whatsoever to criticize it. let's leave it at that.
One, what is "obvious" to any professional programmer will not be obvious to somebody on a jury.
what is not obvious, is whether you understand obviousness as applied under Rule 103. as a threshold matter, the jury has lots more help than you might think, including the advices of credible experts on the subject, but also, even if the jury was snowed, the judge would be obliged to give JMOL if the evidence were as clear as you hypothecate.
Two, the patent system is in dire need of readjustment. So even if it turns out that lame patents (e.g., one-click ordering) are perfectly legal, this only means that the laws are wrong.
You know, you might even be right, but your bullshit non-argument here doesn't even attempt to evidecnce your point, so please don't blame us if we don't take mere demagoguery for what it is.
In any case, even if you were entirely right, which you aren't, and even if you had fully supported that proposition, which you hadn't even attempted, you still provide no grounds to assert the patent is "obviously frivilous."
My point, and I think you made it for me, is that your allegation was unsupported, and all evidence of record right now is to the contrary. It still is.
There are a host of issues about which any technical person performing work on a machine should be concerned:
Computer Fraud and Abuse -- this is a general category of conduct that basically is implicated whenever you make an unauthorized access to a machine or exceed the scope of your authorized access to a machine. Sure, certain statutes, like the CFAA, have additional issues (ok, so long as you don't do so much damage; need certain states of mind, etc), but there are many other statutes upon which you might be hung. In short, if you ever come close to the line of unauthorized access or exceeding same, back off. Period. If you need to go further, get authority (and I mean written and plenary authority) or better yet, get legal advice.
Don't screw around with data. Even if its not CFAA, you face a litany of other claims whenever you change data not your own.
Don't mess around with acceptable use. Learn the AU policies under which you are operating -- this is not ony the best guide for whether you are "authorized," it will be Exhibit 'A' in any action against you on the point. What is far worse, if you are in a University or institutional context, there are internal things an institution can do, whether or not the government can, and AU violations invariably are something you have agreed to the most extreme sanctions in some document you signed somewhere. In short, forget whether you committed a crime -- if they get to kick you out of school because they want to, make sure you don't make it easy for them to do so.
In short, the very fact that you asked this question indicates that you suspect you have gone too far already. Discovering an exploit raises the question how you found it. If you did so innocently, that's fine -- report the potential risk, and offer services under written authority to make your "proof of concept."
But realistically, if you are testing an exploit to bring the point home, you have already put yourself at risk. Until you are invited to the party, it is very dangerous to expose those risks.
At least, take care to "go through the channels," before you do some subculture hacking. If you do the latter, be prepared to stay with the subculture -- whether you be white hat or black hat, your personal sense of ethics don't necessarily comport with your agreements with the University or the law.
I am not saying that you should support security through obscurity, or refrain from exposing security risks. I'm suggesting that if you want to do that, there is a far safer protocol than taking everything into your own hands.
While all the technology in the world is well-understood and available to make this feasible in some regards, the state of the art of role-playing game design is hopelessly behind, and not capable of delivering a product that would be worth the effort to play once constrained by real world scarcity.
The long and short of it is this: no modern role-playing game is sufficiently well-balanced in its economic or story-telling game to make that workable in the large. Particularly in the larger context of a MMPORG, we are just beginning to understand how to present a game in a manner that keeps its story-telling, societal, economic and technological simulations working well enough.
Often, and this is the point, it is necessary to manipulate the economy, society, or in-game technologies to repair flaws in balance or to keep things working -- indeed, to keep things from falling apart. In other words, real world game designers "cheat" after a style - we use god-like powers to "change" things or make things different to make your experiences (or at least those of the greater whole among players) more enjoyable. Because we have flexibility to make changes, the game evolves and becomes more FUN. This is why we get the big bucks, to entertain you -- Yes, we operate sometimes like the Federal Reserve, but not because we want the economy to be perfectly smooth and running (or not) -- because having the economy running smoothly (or not) makes the game more playable and fun. And sometimes, we need to do things that a Federal Reserve Commissioner could not or would not do if his only responisbility was to the economy as a whole.
If games were in fact constrained by being closely tied to real-world models, and thus game-designers were unable to modify economic or property elements of the game without incurring real-world issues -- it is likely that these games would soon collapse of their own weight, either as good games, or because the companies who tried to maintain the quality and balance of the games were sued out of existence.
If a large corporation like ebay can't win a case brought up against them for infringing an obviously frivolous patent then what chance do the rest of us have?
"obviously frivilous" how? Why would you possibly imagine a patent is obviously frivilous after surviving a jury trial? Certainly, the patent may, in fact, be invalid, but where do you come off suggesting that the patent is invalid at all, let alone obviously frivilous?
If they failed to show that there would be irreparable harm from future use than how did they show that there was harm from prior use?
You are confusing apples with oranges. "Harm" comes in many flavors, and the law remedies the harm of patent infringement in various ways.
One way, that is at law, is an award of money damages to the plaintiff for the infringement, in no case less than a resaonable royalty as determined by the Court. However, sometimes a plaintiff cannot be made whole by money damages alone, in which case such irreparable harm is remediable by an injunction -- a court order to stop practicing the patent.
This result is unusual, because irreparable harm is usually presumed, not irrebuttably, in a patent case. Ebay must have satisfied the Court that it reasonably relied upon an effective license due to the conduct of the other side.
Actually, that isn't entirely true. Any subsequent distribution (free or for profit) or copying from the unauthorized books would be an independent act of infringement.
Yesterday, we had posted as news that SCO is likely to prepare a "formal legal response" to the complaint, which seeks among other things a Declaratory Judgment of noninfringement.
I noted then that this cannot possibly be news -- if they fail to respond, then Red Hat would be entitled to a default judgment. What would have been news would be if they missed their deadline and default was taken.
Today, we had posted as news that SCO is likely to include counterclaims in their formal legal response to the complaint, which seeks among other things a Declaratory Judgment of noninfringement.
Duh. Think about it. Red Hat is entitled to judgment unless SCO can disprove noninfringment. That would mean, therefore, that the only way they can prevail as DJ defendants would be to prove Red Hat was infrfinging. It would be lunacy, plain and simple, if they didn't file a counterclaim.
Two days in a row, non-event press releases were treated as major developments. Neither was even interesting.
And we all know the US Judicial System never makes errors in judgement. (pun intended)
Certainly, they do. This is, after all, what the appellate courts are for. My observation is simply this: as between the findings of fact and law after an extensive trial at which both sides have , and your still unsupported and general claims that the lawsuit was bogus, all evidence indicates that it is the claim of bogosity that lacks substance.
As to the error in judgment you suggest by your link, it is significant to note that there was no judgment at all, no substantive determination on the merits in that case: the defendant pled guilty to the lesser charges.
Otherwise, holding companies just become minefields for industry and encourage bogus patents such as this one
And your evidence of bogosity is what? Was the judge hoodwinked? Did RIM not have an opportunity (and awesome incentive) to make every argument available to them as to non-infringement and invalidity? Looks like all evidence, at least, of the claim being "bogus," is to the contrary.
-- where some unethical weasel files for hundreds of patents on obvious technologies and then just waits for someone to come along and bump into them. Absolutely disgusting.
Is it possible that someone just didn't want to pay a reasonable royalty for legitimately patented technology, on the theory that they were generating kazillions of dollars from their exploitation of it -- far more than the inventor had -- and could better survive the lawsuit?
What, exactly, is an individual inventor to do if he cannot partner with monied persons to state his claims? In this case, RIM was FAR from defensesless -- indeed they threw their weight around to make this case difficult as possible for the plaintiffs, and lost.
Sounds more like someone lost a bet than someone got taken for a ride. No doubt, there is a fair chance on appeal, plaintiffs win most trials, and about half of patent cases can be reversed on appeal (although that seems to have dropped off significantly of late).
But bogosity? Nonsense. A trial was held, for gosh sakes. RIM couldn't invalidate this patent, and couldn't engineer around it.
Slashdot Mirror
You know, like Apple, owned by Apple Computers, for computers. Like Apple, owned by Apple Records, for records.
But NOT Apple, for pie!
Like Be, for operating systems. But probably NOT for philosophical services.
So long as the mark is used in a distinctive, non-descriptive fashion, the mark can become proprietary on the day it is first used in commerce.
The remark is, of course, ludicrous. Tidco's is a messaging system having nothing to do with Zeroconf:
e nt erprise/rv/default.jsp
http://www.tibco.com/solutions/products/active_
The morons complain that the guy "spammed" the ISP's customers. He sent ONE email . . .
If you are correct, he would have an excellent defense. That is, if you are correct.
If he posts it ANYWHERE in public, he gets hit with the same charge.
Think so? Have you read the information (criminal complaint)? What law do you think he is alleged to have broken?
I agree with you -- if the facts are as our colleagues have reported, the government will have no play at all in sticking our client with criminal charges. Proof beyond a reasonable doube will be nigh impossible, and the elements of no known computer crime statute is implicated.
This suggests to me that the account we have seen thus far is, well, incomplete.
The DMCA (which IIRC correctly makes pointing out security flaws illegal)
Please identify the clause to which you refer. I am aware of no provision concerning the "pointing out [of] security flaws."
There are three kinds of arguments: (1) Patents are bad; (2) software patents are bad; and (3) bad software patents are bad.
No reasonable person disagrees with (3), and frankly, you will never get traction on (1) in a modern industrialized nation -- while clearly YOU don't like patents, and have your rants in support, the other view has clearly prevailed in most fora. Interestingly, most arguments against software patents really only fall into the (1) and (3) categories, not distinguishing software patents meaningfully from patents-at-large, and not really getting to the merits, but rather whining about one or another allegedly bad patent.
This is why the anti-software patent movement has gained zero traction -- they can't seem to persuade anyone but those who have begun assuming their conclusion.
Excuse me, but the patent system has always been used with real objects and not abstract concepts. It makes sense in that light.
Always? I'll have to check, but as I recall, method and process patents have been around since the mid-18th Century, and that's just the US.
Hmmh. You call his 'bluff' ("back it up with facts"), while doing exactly the same: claiming patents do benefit society as whole via R'n D, without any pointers to anything to back it up. Just your opinion (and vaguely implying others agree). Gee, that's convincing argument there.
Well, there is quite a convincing correlation -- nations with strong patent laws have a strong technical advantage today, for whatever reason. Admitted that this is not by itself not proof of the cause and effect relationship, which is far beyond the scope of these notes.
My criticism was not so much of that point, which I agree is a deep and very interesting debate, but of the suggestion without more, that a heavily litigated patent that was unsuccessfully defended by one of the world's great economic interests is somehow frivolous.
Finally, claiming big companies want relaxed patent (copyright, trademark) laws is patently absurd.
IBM, Motorola, Lucent, Microsoft, GM and a host of other huge technology players all supported recent harmonization efforts. Independent inventors opposed. You may think it absurd, but look who testified for what, and draw your own conclusion.
It shows silliness because of the content of the patent. This isn't something non-obvious or hard to research. It's plugins! It's like patenting vulcanization and then suing every tire manufacturer after they've been doing it for years.
....
Of course that isn't the case -- the claim is narrower than you suggest, and was construed to be narrower than that by the Court. Your next suggestion?
Again, we are talking about a specific set of frivolous patents, so yes there is alot of evidence that they hurt innovation.
So frivolous that even Microsoft's legion of attorneys couldn't put two and two together to find ANY probative prior art to invalidate it. Your next suggestion?
I wrote: Odd how many inidividual inventors seem to make the biggest political push for stronger patent laws, with large companies tending to push for more relaxed "patent harmonization" approaches.
He responded: Talk about presenting evidence to backup your claims
This isn't a close question -- only the truly clueless needs to ask for further evidence -- anybody who followed the recent harmonization battles knows who the players are.
Although the case you describe could be seen to set a precedent against preemption it is also a case of a much more worrying precedent, that is it is a case of judges coming to a conclusion that flies in the face of the law and logic.
I wish that were so. The truth is far more interesting.
While I believe "our side" has the better side of that argument, Judge Rader's analysis is far from the illogical or illegal claptrap you suggest -- indeed, he is also far from alone, the 7th Circuit in ProCD began this particular line of analysis -- it is simply my view that the fair use and first sale issues are in some sense more fundamental statements of Federal policy than the quibbles in the ProCd and the utter silliness of the present GPL argument. There is more than ample precedent to explain these cases, and ultimately, I think, Bowers will be rejected over conflicting law, without exposing this Section 117 argument.
Comforted by the conflicting Vault v. Quaid case, which holds to the contrary concerning no-reverse-engineering provisions, and on grounds irrelevant to Bois' argument, I think justice ultimately will be done in each line of cases.
Preemption of a license agreement is a dead loss argument these days. The Federal Circuit took up that question in a far more important context: enforceability of a no-reverse-engineering provision. Their answer: no preemption.
In the Bowers v. Baystate opinion , the Federal Circuit considered the enforceability under Copyright preemption of a shrink-wrap no-reverse engineering provision. They held that there can be no preemption of a contract, even if it flies squarely into fundamental Copyright Policy like fair use and first sale doctrine. The Section 117 provision argument here is a far, far more attenuated argument.
Though it is pretty clear to me that provisions like the no-reverse-engineering clauses are clearly unconstitutional, I couldn't get the Supreme Court to get excited enough to take up the case in my Amicus brief on behalf of IEEE policy on no-reverse-engineering clauses. Maybe next time.
But in the meanwhile, Boies et al. are running squarely into the teeth of the most recent Circuit Court case addressing the point, and it won't be pretty for them.
Its odd for them to abandon a market space, rather than leave it weakly filled -- that simply presents an opportunity for an excellent alternative client to fill, and another foothold to grab, in the ancilliary-to-OS marketplace.
Anyway, good news. Far too many people used that claptrap instead of a real client -- now we can offer an alternative that is actually likely to be used.
By negating the need for a court order to be allowed to send these orders . . .
Say what? Learn the rules for notice and takedown. All you have to do is respond, and the ISP is obliged to bring it back up until the putative plaintiff sues.
At least they should be held liable for any damages if an ISP removes contents that they claim are infringing.
The DMCA provides for penalties and fees in the case of DMCA notice-and-takedown abuse.
This case clearly shows how silly software patent-laws are. With guns and sanctions they dictate who can use what technology, because someone were "first". Come on! Most of us stopped such silliness in the kindergarden.
In what way does it manifest silliness? It would seem to me to be a case entirely free from vapid claims of validity (microsoft hit with a full court press, and lost) or infringement (likewise, microsoft threw full guns at it, and lost).
To the contrary, the case shows the seriousness of these law and their claims when properly applied.
Who's going to risk developing stuff when you're sued left and right before you even know somebody filed a patent for it while you RDed?
Everybody. The patent system has driven R&D in the United States for more than two hundred years.
This can potentially kill off alot of inventing.
There is lots of evidence to the contrary. What do you have to support your proposition.
Without somebody with lots of money backing you up, it's a risky business.. Which is what the big corporations want anyways, so maybe Microsoft will settle this one in the end.
If you say so. Odd how many inidividual inventors seem to make the biggest political push for stronger patent laws, with large companies tending to push for more relaxed "patent harmonization" approaches.
I was answering your rhetorical question, "How could a jury ever be wrong about a patent?"
You were answering a straw man. I never asked that question. My point was not that juries or courts are infallible, my point was that language such as "frivolous" has no place after all that due process did not find the presumed result.
IIn a discussion, people are not immediately obliged to "evidecnce your point", "fully support your position", or "provide grounds to assert". I'm not making an "allegation"; I gave my opinion. If you are interested in how I came by it, you're welcome to ask.
Indeed, some of us are more circumspect than others in forming opinions about circumstances than others. I tend to like my opinions being informed by facts and evidence. Others enjoy demagoguery and belief as the predicates for theirs.
My observation was not that you didn't have a right to form your opinion, or even that your opinion was not supported by facts -- only that to the extent you had any sound basis for it, you certainly didn't bother to share it in your writings.
And as a guy who works in Silicon Valley and who has been doing web stuff since gopher was the dominant tool, I think I have some knowledge of the practical effects of IP law on innovation, and also on the obviousness of particular inventions.
Yeah, I've invented and writen a bunch too. But before you spout out about whether my views about obviousness (in your plain vernacular) relate at all to the validity of a patent, perhaps you should consider the meaning of that term of art as used under Section 103 of the Patent Act -- it clearly doesn't mean what you think it means.
As a pay-as-you-go feature for consumers who want it, such technology may be valuable.
What about those of us who want to send Christmas cards cheap?
So, you list a law firm as your web page and you do not emphasis the significant distinction between a a preliminary and permanent injunction?
I didn't emphasize many important distinctions, true -- in fact, I wasn't addressing that point at all. With all due respect, I didn't think it relevant, and wasn't inclined to write a treatise about irrelevant things.
I don't see anywhere a relationship between irreparable harm and a permanent injunction.
So look deeper. Consider actual sources of law, many of which are available on the internet, rather than sources of summaries of the law.
Section 283 of the patent act provides that injunctions (permanent and termporary) will issue in accordance with "the principles of equity," which is a legal term referring not to general niceness, but to a particular body of law --equity-- which requires "irreparable harm" as a precondition to the issuance of an injunction. While a showing of patent validity gives rise to a presumption of irreparable harm, the presumption can be rebutted by evidence of record. It is rare a permanent injunction is denied, but facts could exist where it would be inappropriate.
I haven't looked at this patent closely, but I've seen a lot of others that are indeed moronic
so, it may not be obviously frivilous, but may be indeed moronic? give me a break. if you are clueless about the particulars of the patent, you have no basis whatsoever to criticize it. let's leave it at that.
One, what is "obvious" to any professional programmer will not be obvious to somebody on a jury.
what is not obvious, is whether you understand obviousness as applied under Rule 103. as a threshold matter, the jury has lots more help than you might think, including the advices of credible experts on the subject, but also, even if the jury was snowed, the judge would be obliged to give JMOL if the evidence were as clear as you hypothecate.
Two, the patent system is in dire need of readjustment. So even if it turns out that lame patents (e.g., one-click ordering) are perfectly legal, this only means that the laws are wrong.
You know, you might even be right, but your bullshit non-argument here doesn't even attempt to evidecnce your point, so please don't blame us if we don't take mere demagoguery for what it is.
In any case, even if you were entirely right, which you aren't, and even if you had fully supported that proposition, which you hadn't even attempted, you still provide no grounds to assert the patent is "obviously frivilous."
My point, and I think you made it for me, is that your allegation was unsupported, and all evidence of record right now is to the contrary. It still is.
In short, the very fact that you asked this question indicates that you suspect you have gone too far already. Discovering an exploit raises the question how you found it. If you did so innocently, that's fine -- report the potential risk, and offer services under written authority to make your "proof of concept."
But realistically, if you are testing an exploit to bring the point home, you have already put yourself at risk. Until you are invited to the party, it is very dangerous to expose those risks.
At least, take care to "go through the channels," before you do some subculture hacking. If you do the latter, be prepared to stay with the subculture -- whether you be white hat or black hat, your personal sense of ethics don't necessarily comport with your agreements with the University or the law.
I am not saying that you should support security through obscurity, or refrain from exposing security risks. I'm suggesting that if you want to do that, there is a far safer protocol than taking everything into your own hands.
While all the technology in the world is well-understood and available to make this feasible in some regards, the state of the art of role-playing game design is hopelessly behind, and not capable of delivering a product that would be worth the effort to play once constrained by real world scarcity.
The long and short of it is this: no modern role-playing game is sufficiently well-balanced in its economic or story-telling game to make that workable in the large. Particularly in the larger context of a MMPORG, we are just beginning to understand how to present a game in a manner that keeps its story-telling, societal, economic and technological simulations working well enough.
Often, and this is the point, it is necessary to manipulate the economy, society, or in-game technologies to repair flaws in balance or to keep things working -- indeed, to keep things from falling apart. In other words, real world game designers "cheat" after a style - we use god-like powers to "change" things or make things different to make your experiences (or at least those of the greater whole among players) more enjoyable. Because we have flexibility to make changes, the game evolves and becomes more FUN. This is why we get the big bucks, to entertain you -- Yes, we operate sometimes like the Federal Reserve, but not because we want the economy to be perfectly smooth and running (or not) -- because having the economy running smoothly (or not) makes the game more playable and fun. And sometimes, we need to do things that a Federal Reserve Commissioner could not or would not do if his only responisbility was to the economy as a whole.
If games were in fact constrained by being closely tied to real-world models, and thus game-designers were unable to modify economic or property elements of the game without incurring real-world issues -- it is likely that these games would soon collapse of their own weight, either as good games, or because the companies who tried to maintain the quality and balance of the games were sued out of existence.
If a large corporation like ebay can't win a case brought up against them for infringing an obviously frivolous patent then what chance do the rest of us have?
"obviously frivilous" how? Why would you possibly imagine a patent is obviously frivilous after surviving a jury trial? Certainly, the patent may, in fact, be invalid, but where do you come off suggesting that the patent is invalid at all, let alone obviously frivilous?
If they failed to show that there would be irreparable harm from future use than how did they show that there was harm from prior use?
You are confusing apples with oranges. "Harm" comes in many flavors, and the law remedies the harm of patent infringement in various ways.
One way, that is at law, is an award of money damages to the plaintiff for the infringement, in no case less than a resaonable royalty as determined by the Court. However, sometimes a plaintiff cannot be made whole by money damages alone, in which case such irreparable harm is remediable by an injunction -- a court order to stop practicing the patent.
This result is unusual, because irreparable harm is usually presumed, not irrebuttably, in a patent case. Ebay must have satisfied the Court that it reasonably relied upon an effective license due to the conduct of the other side.
Actually, that isn't entirely true. Any subsequent distribution (free or for profit) or copying from the unauthorized books would be an independent act of infringement.
Yesterday, we had posted as news that SCO is likely to prepare a "formal legal response" to the complaint, which seeks among other things a Declaratory Judgment of noninfringement.
I noted then that this cannot possibly be news -- if they fail to respond, then Red Hat would be entitled to a default judgment. What would have been news would be if they missed their deadline and default was taken.
Today, we had posted as news that SCO is likely to include counterclaims in their formal legal response to the complaint, which seeks among other things a Declaratory Judgment of noninfringement.
Duh. Think about it. Red Hat is entitled to judgment unless SCO can disprove noninfringment. That would mean, therefore, that the only way they can prevail as DJ defendants would be to prove Red Hat was infrfinging. It would be lunacy, plain and simple, if they didn't file a counterclaim.
Two days in a row, non-event press releases were treated as major developments. Neither was even interesting.
And we all know the US Judicial System never makes errors in judgement. (pun intended)
Certainly, they do. This is, after all, what the appellate courts are for. My observation is simply this: as between the findings of fact and law after an extensive trial at which both sides have , and your still unsupported and general claims that the lawsuit was bogus, all evidence indicates that it is the claim of bogosity that lacks substance.
As to the error in judgment you suggest by your link, it is significant to note that there was no judgment at all, no substantive determination on the merits in that case: the defendant pled guilty to the lesser charges.
Otherwise, holding companies just become minefields for industry and encourage bogus patents such as this one
And your evidence of bogosity is what? Was the judge hoodwinked? Did RIM not have an opportunity (and awesome incentive) to make every argument available to them as to non-infringement and invalidity? Looks like all evidence, at least, of the claim being "bogus," is to the contrary.
-- where some unethical weasel files for hundreds of patents on obvious technologies and then just waits for someone to come along and bump into them. Absolutely disgusting.
Is it possible that someone just didn't want to pay a reasonable royalty for legitimately patented technology, on the theory that they were generating kazillions of dollars from their exploitation of it -- far more than the inventor had -- and could better survive the lawsuit?
What, exactly, is an individual inventor to do if he cannot partner with monied persons to state his claims? In this case, RIM was FAR from defensesless -- indeed they threw their weight around to make this case difficult as possible for the plaintiffs, and lost.
Sounds more like someone lost a bet than someone got taken for a ride. No doubt, there is a fair chance on appeal, plaintiffs win most trials, and about half of patent cases can be reversed on appeal (although that seems to have dropped off significantly of late).
But bogosity? Nonsense. A trial was held, for gosh sakes. RIM couldn't invalidate this patent, and couldn't engineer around it.
Please identify one claim of one of the patents-in-suit that you feel fits that category.