Short, untrue but useful, answer: not much variation in practice. The following are broad answers to give a sense of an answer -- the devil truly lies in the details.
Although the answers below suggest substantial verisimilitude, there are differences from country to country, both in terms of the subject matter and scope of protection available, that make it necessary for individuals to get specific advice for each nation in which protection is sought.
While there are substantial similarities in terms of IP these days, there remain substantial differences in other regards, and this may impact on the generality of the remarks below. Each nation protects different things differently, and sometimes gives different terms of protection for each.
Patents:
In most industrial nations, the term of a utility patent is twenty (20) years from the date of first filing in the first nation in which protection was sought, regardless when the patent issued. This was not the case in the United States until the nineties, before which the term was seventeen (17) years from the date the patent issued. However, the United States now follows the international model.
Copyrights
The well-adhered-to Berne convention requires a minimum term of life of the author plus 50 years. The UCC requires only a minimum term of the life of the author plus 25 years. Signatory nations may have longer terms if they see fit.
However, the European Union, and later, the United States have extended their term for published works to life of the author plus 70 years. Many nations accordingly feel pressure to, and either have or are anticipated to, increase their terms accordingly.
In many industrial nations, including the United States, trademarks or their analogues have potentially indefinite terms -- typically lasting so long as the trademark remains valid, and the trademark owner conforms with applicable registration requirements.
Once was a time that you couldn't consider practicing patent law from outside of the DC area. The only reasonable searching facilities were at the Office, the only practical way to communicate with examiners was face-to-face, and failing to have the ability to make last-minute filings by sending a courier to get a filing hand-stamped was near malpractice.
No more. Nowadays, your filings are given a filing date based upon the day the mailing is given to the post office (even if the Office never gets it), you can consult with examiners aided by facsimile and other transmissions, and you can research patentability reasonably in most art areas from just about anywhere. (Although I still prefer to do it the old-fashioned way.)
Electronic filing is simply the natural extension of this trend. The only difficulty to date was resolving issues of authentication and signature no longer relevant today. Since most cities have at least one post office open until midnight, the primary advantage of electronic filing is just the convenience of examination and storage for the Office. They will automatically receive their documents in condition for storage in an automatic system. Thus, examiners will be able to manipulate and search the document promptly, run it through various tools that facilitate examination, and otherwise take steps to assure that bureaucratic formalities are satisfied.
Um, Napster is simultaneously promising to implement capabilities that in court they testified that they don't have -- namely, to monitor the transfers themselves, in order to determine which MP3s are transferred when.
Um, No. This straw man has nothing to do with the case.
Napster stated, truthfully and undeniably, that they cannot infer from the "title" of a work whether the work does or does not contain copyrighted subject matter that is being transferred without consent or subject to a fair use exception. Napster further stated, truthfully and undeniably, that the transfers of content are accomplished peer-to-peer, without capacity for review or intervention by Napster.
Nothing described thus far in this thread contradicts those propositions or gives rise to any questions of credibility. There is no cause of action in the complaint for negligence, and accordingly, there is no legal basis for which anyone should be "nailed for massive amounts" thereof.
One of the key issues -- strike that -- the key legal issue in the Napster case is whether the Napster technology has a "capacity for a substantial non-infringing use." No actual substantial noninfringing use is necessary for Napster to prevail -- just a capacity for the same. That standard is the one stated by the Supreme Court in Sony -- the one, overarching precedent in Napster.
A key point made in the briefs again and again is that there not only exists such a capacity, but substantial non-infringing uses are increasing in frequency in various ways: particularly the use of peer-to-peer sharing as a means to distribute files for which distribution has been consented. RIAA argues, pathetically, that such consent will never happen.
Bwaahaha! Gotcha!
By dealing with Napster to set up a consented, subscription-based sharing service, Bertelsman concedes the point -- there exists a capacity for a substantial non-infringing use, and hence can be no contributory infringement.
Poetic results are possible . . .
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In this lawsuit, we have an apparently overreaching litigant attempting to beat up on an apparently overreaching patent critic. Wouldn't it be interesting if the verdict of this case were (as tends to happen these days), that the patent was construed to be narrower in scope than the parties contend, and thus, that the patent is valid (thus Greg is wrong), but not infringed (thus the patent owner is wrong)?
Time will tell if this is harassment or justice
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Reexaminations are processed with substantial speed in the USPTO. The result of that will be known soon. It is quite possible that the patent claims will all be cancelled, that the patent claims will all survive, or that some claims will be cancelled and/or some claims amended. If some part of the patent survives, the resulting claims will be STRONGER (in the sense of defensible against invalidity, not in the sense of broader in scope) than the original.
Don't take broad descriptions of a patent to indicate either the scope of its claims, or the likelihood of its validity. Read, at least, the patent disclosure and claims. In this case, it is unclear whether the patent reaches as broadly, or would be clearly invalid in view of the prior art on or prior to 1990, as Greg was quoted to suggest. Time will tell.
But it should be understood that Greg has made a practice of self-promotion and promotion of his search services by publicly attacking the scope or validity of various patents. In some cases, he had manifest a clear lack of understanding of applicable patent law, and in others a failure to have read even the most basic information relating to a particular patent he was excoriating.
While it is certainly his First Amendment right to state opinions on various issues, he has often arguably stepped over the line of reason, perhaps even so far as to defamation of title.
But this case isn't about free speech. Greg was not attacked for having claimed a patent was invalid -- he is attacked for having infringed a patent. He is being invited to put his money where his mouth is, literally and figuratively, to prove a patent is invalid which he has claimed, directly or indirectly, was invalid. Again, time will tell.
Frankly, I am unfond of those heavy-handed tactics, both when they are applied by property-holders or their critics. Neither litigant has a stellar history for being truth-seeking and desirious of finding the truth wherever it may lie. At least, in this case, we'll see the results of these issues determined on the merits by a third party. Greg, hardly defenseless, is a self-acclaimed expert patent-buster, and so he is better equipped than most to find the best prior art.
Again, time will tell. Hopefully, the truth will prevail.
Re:They Should Counter Sue TechSearch
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They should, should they? Let us see if Greg does challenge under Rule 11 (for filing meritless claims), and if so, whether he would prevail.
Time will tell.
Wacky patents considered harmless . . .
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Reread the patent. It does not cover laser pens, just the method of using it as a form of exercise.
This is simply another in a long history of deeds issued by the USPTO for reasons of sheer amusement. This class of "wacky patents" is so silly and amusing that it even has its own web site.
If you read the claims and prosecution, you will understand clearly that the patent issued because it was clearly harmless and would have been difficult and expensive to reject.
3.) IP RIGHTS SHOULD BE NON-TRANSFERRABLE!!! License them, sure. an inventor may not always have enough capital to market his invention. But ownership of a patent should always stay with the inventor, likewise a copyright.
Who would this benefit? Surely not the inventor. What makes IP assets valuable is that they are PROPERTY. One of the essential elements of property are that they are transferrable -- can be used as currency in an economic transaction.
The more limitations you put on the transferability of an asset, the less valuable they are. Whether you are talking about country club memberships, tickets to a ballgame or otherwise, the value of an asset is limited when you cannot exchange ALL of the rights you have. (What is more, it is the nature of a capital asset that it flows like a force of nature; legal limitaitions on transferrability simply invite ways to circumvent those limitations, whether by scalping, side-agreements or contracts or otherwise; all that happens is that it becomes more expensive and risky to effectively transfer the assets -- which makes it less valuable, of course).
It is very, very common that an inventor, author or otherwise is not the same person or entitty that has the assets necessary to practice an invention or publish or otherwise exploit a literary work. If you limit the ability of the parties to transfer assets, you simply invite the capital to flow elsewhere -- to safer, more secure investments.
If this company succeeds in this latest venture, other companies are going to start The USPO needs to start carefully analyzing patent applications
They do carefully analyze patent applications. Why do you think they don't?
and needs to have either a public review or a panel-based review
Under the recent changes to the patent act, certain applications are published 18 months after application, and thus can be subject to review by the public prior to issuance. However, there is no provision for opposition apart from the very expensive interference process.
Once patent applications issue, however, there is a fairly low-cost process to challenge their validity, called reexamination. Recent changes to the act expanded the scope of third-party participation in reexaminations.
Regrettably, both of these recent steps are watered-down versions of far stronger proposals in the original patent reform legislation. My understanding is that the reform bill will likely be taken up again next term.
Ironically, many Slashdotters opposed these stronger proposals last year during a discussion of patent reform.
to determine whether a patent applicant is simply follwing an evolutionary path or actually a technological innovation.
Evolutionary paths can include patentable subject matter, so long as they entail new, useful and unobvious subject matter.
There is a process called "reexamination," in which you present documentary prior art not previously considered, which raises a "substantial new question of patentability," and file a petition requesting rexamination.
If the request is granted, the patent will be completely reviewed in light of the new art. This has an upside and a downside, of course -- the applicant gets to rewrite his claims to narrow the patent to avoid the new art, which may result in a stronger (but valid) patent.
If the patent cannot be amended to avoid the prior art, then the patent claims will all be cancelled.
If a patent is significant and a substantial burden, the Commissioner may autonomously decide to call a patent into reexamination. This is what happened in the Comptons and Energizer Bunny cases.
Alternatively, you can sue (in some cases), or be sued and then counterclaim for, a declaratory judgment of invalidity. You present the prior art and, if you prevail, the patent claims you challenged are killed on the spot -- the applicant gets no chance to "amend around."
Reexamination can be a fairly inexpensive process (just a filing fee and time for preparation of the proper papers), or if you decide you want to actively participate in the process -- answering applicant''s responses and the like, it can be moderately expensive (say mid-four figures to the low five figures). Except in clear cases, litigating validity can be awesomely expensive, often in six figures.
Re:Isn't it about time....
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.. for the US patent office to start actually READING applications for patents?
Clearly they do. No reasonable reading of a patent prosecution file could possibly be taken to suggest that examiners did not read the application.
Isn't it about time for critics of the patent system to try to present specific, direct evidence of their gripes, and to unsubstantiated demagoguery?
mean, it seems absurd that people can patent things like websevers, which are so common. Patents are designed to protect ORIGINAL ideas,
Both of these propositions are correct. So, if you have a gripe, let's take the specific patent, the specific claim, and the specific prior art, and then determine whether or not the patent is invalid.
If we do so, we can save Greg Aharonian a lot of money in legal fees.
Theory here is to permit a means for candidate G, with a "safe" marjority in a secure state, say NY, who needs votes in an insecure state, say M, to bleed votes from a candidate N, who has no interest in the electoral college result, but merely wants to obtain a reasonable total popular vote. A web-site is used to permit voters in NY and M to swap promises to vote differently.
In theory this cannot hurt G in NY, because no more than the percentage of N supporters will swap, and the margin in NY is not sufficient to give pause.
So, candidate B simply spoofs a whole bunch of registered M state voters, promising to vote for G in M in exchange for a vote for N in NY. If he does this well enough, he can actually unseat G in NY by fooling enough NY voters to think they are doing the cause to win in M. (The B voter in M, of course, simply votes his conviction, and not his --probably unenforceable-- promise, when he goes to the ballot box.)
Since there are so many B voters in any state, there is no problem here for B -- perhaps B can get all of NY to vote for N in lieu of G.
(1) Compilations consisting of lists of websites blocked by filtering software applications; and
(2) Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness.
Exemptions the Librarian rejected were:
1. ``Thin Copyright'' Works
2. Sole Source Works
3. Audiovisual Works on Digital Versatile Discs (DVDs)
4. Video Games in Formats Playable Only on Dedicated Platforms
5. Computer Programs and Other Digital Works for Purposes of Reverse Engineering
6. Encryption Research Purposes
7. ``Fair Use'' Works
8. Material that Cannot be Archived or Preserved
9. Works Embodied in Copies Which Have Been Lawfully Acquired by Users
10. Exemption for Public Broadcasting Entities
Hackers have had access of some sort to Microsoft source codes for perhaps as long as three months. Microsoft can only say they presently have "no evidence" that codes have been changed.
So little is necessary to create a back door, or even an exploitable "bug," how would it be possible for Microsoft ever to say that the codes are uncompromised.
The problem is that MS operating systems are ubiquitous. If a hacker can build-in, directly or indirectly, the equivalent of Back Orifice in EVERY system, what then? Suddenly MS itself becomes the Trojan horse.
This is the fundamental difficulty of closed source solutions -- there is no way for third parties to assure themselves of the absence of serruptitious code. Of course, such code can find itself into open source code as well, but at least there are means to independently verify the work.
Microsoft just says, "trust me." And some of us do. But the more frequent hacker visits occur, the less it matters whether we trust Microsoft -- we have to ask ourselves, "do we also trust Microsoft to effectively defend itself (and thus us) against Microsoft's hackers?"
This is one of those pieces of doggerel that got repeated with such regularity that it became truth without ever being based in fact. It was an exaggeration made by Anti-Gore advocate Declan McCullagh, which he shamelessly promoted at every opportunity.
The "smoking gun" quotation was, in fact, that Al Gore, during his tenure in the Congress, "took the initiative in creating the Internet." This was, in fact, the truth. Gore spearheaded efforts to fund NSFNet, and he (and other tech-savvy folk like Newt Gingrich) took a leadership role in getting funding for and support for net-related projects.
Much quibbling has occurred in the use of the words "took the initiative." There can be no mistake of the meaning Gore intended: in the same paragraph, he discussed many other legislative initiatives in the same context. My Webster's Third New International Dictionary defines initiative, particularly as used in this context, to refer to a form of legislative action.
The deconstruction of a brief phrase taken out of context, and the shameless repetition and exploitation of it by Declan, Armey and other partisans led to the present situation, where it is no longer even questioned whether Gore claimed to invent the internet.
The cost of blinding yourself to truth is that others can define it for you. Don't let this bullshit continue. Question everything. Even this response, until you are satisfied you know who was telling the truth, and who was lying.
While anti-Gore partisans are fond of talking about Gore's alleged prevarications, one must consider carefully the irony of the falsehoods the partisans themselves have propagated.
Interestingly, part of the explanatory text of the bill points out that "[e]xisting case law provides that in the absence of evidence of agreement to the contrary, a teacher, rather than the institution for which he or she teaches, owns the common law copyright to his or her lectures." That does seem to make some sense, but are notes "the lecture"? If I draw a sketch of a painting, does the original artist own my sketch, too? (Or in this case, does the University of California?)
The reason for this is that the common law copyright was expressly abrogated in the Copyright Act of 1976 with few exceptions (see
Copyright Act Section 301, which preempts most state law trying to ape copyright law. The few exceptions include works that have not been fixed in tangible media, such as extemporaneous speeches.
However, they will have a great deal of trouble here: Most professors give their lectures from notes, effectively providing a public performance of a work (the notes) that WAS fixed in tangible media. In such cases, the California Bill may well have been preempted, and the case reverts to questions of whether notes taken by an audience constitute infringement, fair use or original restatments by a student of the unprotectable IDEAS of a lecture.
Long and short of this -- the litigation over this bill may be very interesting (read expensive and complicated). Supremacy and Commerce clause cases make for great lawyering -- although they may seem quite dull to most lay audiences.
Yes, obviousness is an important legal term. It's both an issue of fact to be determined by the court and a requirement for patentability. The angry posts of slashdotters saying "this is
incredibly obvious -- I can't believe such a patent application would be granted" is EVIDENCE that the invention does not meet this requirement.
My point is that the remarks to which I have replied manifest little understanding of the applicable standard. An undifferentiated sensation of obviousness by a technical person explained there actually *ISN'T* evidence of obviousness, as several Federal Circuit cases have stated -- indeed, there are cases where such a statments are properly excluded as irrelevant.
You state the obviousness test is a failure for many patents that have been granted.
I'm not sure what you mean by your remark. This appears to be a straw man, but I'm not sure precisely what you mean.
If you're not going to suggest we change the law and eliminate that test entirely (which I know
would be a distortion of your argument), then perhaps you could consider the slashdotters' views as evidence of both a) problems with a particular patent and b) probable problems
at the patent office.
I do not suggest the law needs to be changed, in fact. Nor would I agree with your proposal. While this is something about which reasonable people might disagree, that wasn't the subject of my posting. The subject wasn't whether a patent SHOULD be invalid -- this is about whether a particular patent *IS* invalid.
Before we analyze any proposal for a new standard, however, that standard should be clearly articulated so that it can be analyzed in depth. Merely waving arms around shoulda'-coulda' arguments will shed far more heat than light.
1) This is a recipe for disaster, where one can spend even more money litigating the virtual ephemerality than one spends on discovery. (We already spend more money on discovery than we do in preparing trial materials on the merits.) Still further, we can defeat this by simply replacing archives with "deletions," knowing that we can recover the data if we want it, but defeat discovery by claiming it was "deleted." Rather than create legal fictions in lieu of reality, why not simply put on those who intend to destroy things the burden if doing it well?
2) Even if it were practical, why are we treating discarded information differently from other non-discarded information? Why should we be permitted to go into the deep archives of a building to find smoking gun memoranda long thought destroyed, but not into the interstices of a hard disk?
3) It would be one thing to say, "no, we won't permit discovery." It is another thing to create some special-purpose exception to an exemption to a rule, knowing the rule to be filled with unanticipated consequences.
But the real problem I have with this proposal is more fundamental -- the proposal has the effect of concealing the truth without any other clear benefit.
It rewards a guy who meant to conceal some truth, probably reliable evidence in view of the effort, by concealing it after he screwed up in trying to destroy it.
There exist a host of rules (materiality, hearsay, best evidence, the exclusion rule for profits of an illegal search) during legal proceedings that keep evidence from finders of fact, but those rules tend to support other policies, such as reliabiity, civil liberties, and even oxymoronic judicial efficiency.
This proposed rule exists solely to make relevant, reliable evidence inadmissible. That doesn't, at least to me, seem just.
Per the Patent Act, "person having ordinary skill in the art." It's important to develop some sense of what is a PHOSITA, and how obviousness is determined. The following is an intentionally informal, incomplete, but well-intended effort to offer some intuition for how the problem is legally analyzed. It isn't the whole story, but if it helps develop some gut understanding, it did some good:
Imagine Vern, from the movie. A very dull lad, barely sentient. Now give him sufficient understanding to be able to read the "general literature" of the art, at least to the extent of being able to dully follow instructions set forth there and apply it to the art. What is more, give Vern a photographic memory containing all the relevant prior art.
So Vern can use a reference that spells out how to practice, and can "fill in the blanks" using routine practices. (To attach two pieces of wood, Vern the carpentry artist would probably figure out to use hammer and nail, because somewhere is a primer saying to affix two pieces you can use a hammer and nail). But Vern won't combine the art, put 2+2 together, unless the art expressly suggested the combination.
A patent claim is anticipated (and invalid) when a single reference contains EACH AND EVERY ELEMENT recited in the claim appears in the reference. If elements are missing in one reference, but appear in another, related, reference, Vern the artist might consider it obvious to combine the two elements, BUT ONLY IF THE ART (or another piece of art) teaches or suggests the combination.
If there are new elements in the art of record that are not naturally known as substitutes one for the other, it is very rare that obviousness will be found.
Those are just the basics, but perhaps it will provide a framwork/intuition for resolving these questions.
The initial postings related to the novelty and unobviousness standards. Your posting addresses the subject matter questions. To be patentable, an invention must satisfy BOTH requirements: (1) it must be patentable suject matter; and (2) it must be new, useful and unobvious as those terms are defined in the Patent Act.
Your well-reasoned post relied upon informal interpretations of old cases, and thus does not reflect the present judicial view of the subject matter issue. The most recent cases make clear that patentability "is understood to be [based] not on whether there is a mathematical algorithm at work, but on whether the algorithm-containing invention, as a whole, produces a tangible, useful, result.
That is the ultimate test. Does the process/method/apparatus produce a tangible, useful result. And tangible does not require a physical thing, as you will see if you review the citation below.
The seminal case in this arena is the State Street Bank case, but the best description of how "tangibility" works into the matter can be found in AT&T v. Excel. Required reading for anyone who would discuss the subject matter requirement.
Certainly it would be nice to clarify the Supreme's view on the matter, but they denied Cert in both the State Street and AT&T cases. The Federal Circuit has exclusive jurisdiction over patent cases, so until the Supes speak next, this is the final word.
The law says that prior art and anything obvious to someone trained in the art are specifically not patentable. Storing someone's credit card number and shipping address, indexed by the cookie returned by their browser is obvious to any software engineer.
That's not, precisely, the law, and at least one federal District court has already rejected this "hand-wave" obviousness argument with respect to the Amazon patent. Time will tell whether or not the Amazon patent is invalid, but to date, no court of competent jurisdiction has considered prior art and allegedly obvious differences therefrom to be read upon by the patent claims.
The actual language of the patent act is this: "(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. "
Each word of Section 103 is rife with meaning, including the important difference between someone trained in the art and a "person having ordinary skill in the art." Obviousness is an important legal term of art filled with meaning that is trivialized by the casual -- "its obvious to me" -- remarks so often seen on Slashdot.
The cliche of blaming the patent office for not thoroughly investigating patent applications, particularly because some colleague after the fact thinks the solution was obvious, proves too much -- if you think there is art invalidating a patent -- set it forth. If you think there are arguments for invalidity, state them. Making non-falsifiable allegations that a patent is "obvious to me" is merely to engage in demagoguery.
It's the patent office's fault; they are over taxed and not thoroughly investigating patent applications.
Pot. Kettle. Black. It is as much the critics fault for not thoroughly investigating the actual legal bases for patentability before drawing conclusions about the inadequacy of the system, and for not actually themselves investigating prior art of specific issued patents they claim to be invalid.
Whatever may be said about Amazon's one-click patent, it is not patently invalid -- not only has the patent office so ruled, but so has at least one Federal District Court. The failure of the obvious "obviousness" test, is that it doesn't work for many patents that have been held to be valid. Next time, let's use actual standards, not ones we wish were substituted for the law.
Slashdot Mirror
While I'm sure this is buried within the fine print of MIcrosoft's EULA, do you think it is actually enforcable?
It's not in the EULA.
Don't you love when folks make it up as they go?
Please cite the UCITA provision that permits "softwar owners to prove they have licenses."
Short, untrue but useful, answer: not much variation in practice. The following are broad answers to give a sense of an answer -- the devil truly lies in the details.
Although the answers below suggest substantial verisimilitude, there are differences from country to country, both in terms of the subject matter and scope of protection available, that make it necessary for individuals to get specific advice for each nation in which protection is sought.
While there are substantial similarities in terms of IP these days, there remain substantial differences in other regards, and this may impact on the generality of the remarks below. Each nation protects different things differently, and sometimes gives different terms of protection for each.
Patents:
In most industrial nations, the term of a utility patent is twenty (20) years from the date of first filing in the first nation in which protection was sought, regardless when the patent issued. This was not the case in the United States until the nineties, before which the term was seventeen (17) years from the date the patent issued. However, the United States now follows the international model.
Copyrights
The well-adhered-to Berne convention requires a minimum term of life of the author plus 50 years. The UCC requires only a minimum term of the life of the author plus 25 years. Signatory nations may have longer terms if they see fit.
However, the European Union, and later, the United States have extended their term for published works to life of the author plus 70 years. Many nations accordingly feel pressure to, and either have or are anticipated to, increase their terms accordingly.
Under various circumstances, other terms may apply. Some nations give different, sometimes fixed, terms for motion pictures, computer software and the like. Your mileage may vary. ENESCO has an excellent page with English language translations of international copyright law for those interested in researching the interstices.
Trademarks
In many industrial nations, including the United States, trademarks or their analogues have potentially indefinite terms -- typically lasting so long as the trademark remains valid, and the trademark owner conforms with applicable registration requirements.
Once was a time that you couldn't consider practicing patent law from outside of the DC area. The only reasonable searching facilities were at the Office, the only practical way to communicate with examiners was face-to-face, and failing to have the ability to make last-minute filings by sending a courier to get a filing hand-stamped was near malpractice.
No more. Nowadays, your filings are given a filing date based upon the day the mailing is given to the post office (even if the Office never gets it), you can consult with examiners aided by facsimile and other transmissions, and you can research patentability reasonably in most art areas from just about anywhere. (Although I still prefer to do it the old-fashioned way.)
Electronic filing is simply the natural extension of this trend. The only difficulty to date was resolving issues of authentication and signature no longer relevant today. Since most cities have at least one post office open until midnight, the primary advantage of electronic filing is just the convenience of examination and storage for the Office. They will automatically receive their documents in condition for storage in an automatic system. Thus, examiners will be able to manipulate and search the document promptly, run it through various tools that facilitate examination, and otherwise take steps to assure that bureaucratic formalities are satisfied.
Um, Napster is simultaneously promising to implement capabilities that in court they testified that they don't have -- namely, to monitor the transfers themselves, in order to determine which MP3s are transferred when.
Um, No. This straw man has nothing to do with the case.
Napster stated, truthfully and undeniably, that they cannot infer from the "title" of a work whether the work does or does not contain copyrighted subject matter that is being transferred without consent or subject to a fair use exception. Napster further stated, truthfully and undeniably, that the transfers of content are accomplished peer-to-peer, without capacity for review or intervention by Napster.
Nothing described thus far in this thread contradicts those propositions or gives rise to any questions of credibility. There is no cause of action in the complaint for negligence, and accordingly, there is no legal basis for which anyone should be "nailed for massive amounts" thereof.
This is a slam-dunk win for Napster.
One of the key issues -- strike that -- the key legal issue in the Napster case is whether the Napster technology has a "capacity for a substantial non-infringing use." No actual substantial noninfringing use is necessary for Napster to prevail -- just a capacity for the same. That standard is the one stated by the Supreme Court in Sony -- the one, overarching precedent in Napster.
A key point made in the briefs again and again is that there not only exists such a capacity, but substantial non-infringing uses are increasing in frequency in various ways: particularly the use of peer-to-peer sharing as a means to distribute files for which distribution has been consented. RIAA argues, pathetically, that such consent will never happen.
Bwaahaha! Gotcha!
By dealing with Napster to set up a consented, subscription-based sharing service, Bertelsman concedes the point -- there exists a capacity for a substantial non-infringing use, and hence can be no contributory infringement.
In this lawsuit, we have an apparently overreaching litigant attempting to beat up on an apparently overreaching patent critic. Wouldn't it be interesting if the verdict of this case were (as tends to happen these days), that the patent was construed to be narrower in scope than the parties contend, and thus, that the patent is valid (thus Greg is wrong), but not infringed (thus the patent owner is wrong)?
Reexaminations are processed with substantial speed in the USPTO. The result of that will be known soon. It is quite possible that the patent claims will all be cancelled, that the patent claims will all survive, or that some claims will be cancelled and/or some claims amended. If some part of the patent survives, the resulting claims will be STRONGER (in the sense of defensible against invalidity, not in the sense of broader in scope) than the original.
Don't take broad descriptions of a patent to indicate either the scope of its claims, or the likelihood of its validity. Read, at least, the patent disclosure and claims. In this case, it is unclear whether the patent reaches as broadly, or would be clearly invalid in view of the prior art on or prior to 1990, as Greg was quoted to suggest. Time will tell.
But it should be understood that Greg has made a practice of self-promotion and promotion of his search services by publicly attacking the scope or validity of various patents. In some cases, he had manifest a clear lack of understanding of applicable patent law, and in others a failure to have read even the most basic information relating to a particular patent he was excoriating.
While it is certainly his First Amendment right to state opinions on various issues, he has often arguably stepped over the line of reason, perhaps even so far as to defamation of title.
But this case isn't about free speech. Greg was not attacked for having claimed a patent was invalid -- he is attacked for having infringed a patent. He is being invited to put his money where his mouth is, literally and figuratively, to prove a patent is invalid which he has claimed, directly or indirectly, was invalid. Again, time will tell.
Frankly, I am unfond of those heavy-handed tactics, both when they are applied by property-holders or their critics. Neither litigant has a stellar history for being truth-seeking and desirious of finding the truth wherever it may lie. At least, in this case, we'll see the results of these issues determined on the merits by a third party. Greg, hardly defenseless, is a self-acclaimed expert patent-buster, and so he is better equipped than most to find the best prior art.
Again, time will tell. Hopefully, the truth will prevail.
They should, should they? Let us see if Greg does challenge under Rule 11 (for filing meritless claims), and if so, whether he would prevail.
Time will tell.
Reread the patent. It does not cover laser pens, just the method of using it as a form of exercise.
This is simply another in a long history of deeds issued by the USPTO for reasons of sheer amusement. This class of "wacky patents" is so silly and amusing that it even has its own web site.
If you read the claims and prosecution, you will understand clearly that the patent issued because it was clearly harmless and would have been difficult and expensive to reject.
3.) IP RIGHTS SHOULD BE NON-TRANSFERRABLE!!! License them, sure. an inventor may not always have enough capital to market his invention. But ownership of a patent should always stay with the inventor, likewise a copyright.
Who would this benefit? Surely not the inventor. What makes IP assets valuable is that they are PROPERTY. One of the essential elements of property are that they are transferrable -- can be used as currency in an economic transaction.
The more limitations you put on the transferability of an asset, the less valuable they are. Whether you are talking about country club memberships, tickets to a ballgame or otherwise, the value of an asset is limited when you cannot exchange ALL of the rights you have. (What is more, it is the nature of a capital asset that it flows like a force of nature; legal limitaitions on transferrability simply invite ways to circumvent those limitations, whether by scalping, side-agreements or contracts or otherwise; all that happens is that it becomes more expensive and risky to effectively transfer the assets -- which makes it less valuable, of course).
It is very, very common that an inventor, author or otherwise is not the same person or entitty that has the assets necessary to practice an invention or publish or otherwise exploit a literary work. If you limit the ability of the parties to transfer assets, you simply invite the capital to flow elsewhere -- to safer, more secure investments.
If this company succeeds in this latest venture, other companies are going to start The USPO needs to start carefully analyzing patent applications
They do carefully analyze patent applications. Why do you think they don't?
and needs to have either a public review or a panel-based review
Under the recent changes to the patent act, certain applications are published 18 months after application, and thus can be subject to review by the public prior to issuance. However, there is no provision for opposition apart from the very expensive interference process.
Once patent applications issue, however, there is a fairly low-cost process to challenge their validity, called reexamination. Recent changes to the act expanded the scope of third-party participation in reexaminations.
Regrettably, both of these recent steps are watered-down versions of far stronger proposals in the original patent reform legislation. My understanding is that the reform bill will likely be taken up again next term.
Ironically, many Slashdotters opposed these stronger proposals last year during a discussion of patent reform.
to determine whether a patent applicant is simply follwing an evolutionary path or actually a technological innovation.
Evolutionary paths can include patentable subject matter, so long as they entail new, useful and unobvious subject matter.
There is a process called "reexamination," in which you present documentary prior art not previously considered, which raises a "substantial new question of patentability," and file a petition requesting rexamination.
If the request is granted, the patent will be completely reviewed in light of the new art. This has an upside and a downside, of course -- the applicant gets to rewrite his claims to narrow the patent to avoid the new art, which may result in a stronger (but valid) patent.
If the patent cannot be amended to avoid the prior art, then the patent claims will all be cancelled.
If a patent is significant and a substantial burden, the Commissioner may autonomously decide to call a patent into reexamination. This is what happened in the Comptons and Energizer Bunny cases.
Alternatively, you can sue (in some cases), or be sued and then counterclaim for, a declaratory judgment of invalidity. You present the prior art and, if you prevail, the patent claims you challenged are killed on the spot -- the applicant gets no chance to "amend around."
Reexamination can be a fairly inexpensive process (just a filing fee and time for preparation of the proper papers), or if you decide you want to actively participate in the process -- answering applicant''s responses and the like, it can be moderately expensive (say mid-four figures to the low five figures). Except in clear cases, litigating validity can be awesomely expensive, often in six figures.
.. for the US patent office to start actually READING applications for patents?
Clearly they do. No reasonable reading of a patent prosecution file could possibly be taken to suggest that examiners did not read the application.
Isn't it about time for critics of the patent system to try to present specific, direct evidence of their gripes, and to unsubstantiated demagoguery?
mean, it seems absurd that people can patent things like websevers, which are so common. Patents are designed to protect ORIGINAL ideas,
Both of these propositions are correct. So, if you have a gripe, let's take the specific patent, the specific claim, and the specific prior art, and then determine whether or not the patent is invalid.
If we do so, we can save Greg Aharonian a lot of money in legal fees.
Theory here is to permit a means for candidate G, with a "safe" marjority in a secure state, say NY, who needs votes in an insecure state, say M, to bleed votes from a candidate N, who has no interest in the electoral college result, but merely wants to obtain a reasonable total popular vote. A web-site is used to permit voters in NY and M to swap promises to vote differently.
In theory this cannot hurt G in NY, because no more than the percentage of N supporters will swap, and the margin in NY is not sufficient to give pause.
So, candidate B simply spoofs a whole bunch of registered M state voters, promising to vote for G in M in exchange for a vote for N in NY. If he does this well enough, he can actually unseat G in NY by fooling enough NY voters to think they are doing the cause to win in M. (The B voter in M, of course, simply votes his conviction, and not his --probably unenforceable-- promise, when he goes to the ballot box.)
Since there are so many B voters in any state, there is no problem here for B -- perhaps B can get all of NY to vote for N in lieu of G.
New exempt categories set forth in the rule are:
(1) Compilations consisting of lists of websites blocked by filtering software applications; and
(2) Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness.
Exemptions the Librarian rejected were:
1. ``Thin Copyright'' Works
2. Sole Source Works
3. Audiovisual Works on Digital Versatile Discs (DVDs)
4. Video Games in Formats Playable Only on Dedicated Platforms
5. Computer Programs and Other Digital Works for Purposes of Reverse Engineering
6. Encryption Research Purposes
7. ``Fair Use'' Works
8. Material that Cannot be Archived or Preserved
9. Works Embodied in Copies Which Have Been Lawfully Acquired by Users
10. Exemption for Public Broadcasting Entities
Hackers have had access of some sort to Microsoft source codes for perhaps as long as three months. Microsoft can only say they presently have "no evidence" that codes have been changed.
So little is necessary to create a back door, or even an exploitable "bug," how would it be possible for Microsoft ever to say that the codes are uncompromised.
The problem is that MS operating systems are ubiquitous. If a hacker can build-in, directly or indirectly, the equivalent of Back Orifice in EVERY system, what then? Suddenly MS itself becomes the Trojan horse.
This is the fundamental difficulty of closed source solutions -- there is no way for third parties to assure themselves of the absence of serruptitious code. Of course, such code can find itself into open source code as well, but at least there are means to independently verify the work.
Microsoft just says, "trust me." And some of us do. But the more frequent hacker visits occur, the less it matters whether we trust Microsoft -- we have to ask ourselves, "do we also trust Microsoft to effectively defend itself (and thus us) against Microsoft's hackers?"
This is one of those pieces of doggerel that got repeated with such regularity that it became truth without ever being based in fact. It was an exaggeration made by Anti-Gore advocate Declan McCullagh, which he shamelessly promoted at every opportunity.
The "smoking gun" quotation was, in fact, that Al Gore, during his tenure in the Congress, "took the initiative in creating the Internet." This was, in fact, the truth. Gore spearheaded efforts to fund NSFNet, and he (and other tech-savvy folk like Newt Gingrich) took a leadership role in getting funding for and support for net-related projects.
Much quibbling has occurred in the use of the words "took the initiative." There can be no mistake of the meaning Gore intended: in the same paragraph, he discussed many other legislative initiatives in the same context. My Webster's Third New International Dictionary defines initiative, particularly as used in this context, to refer to a form of legislative action.
The deconstruction of a brief phrase taken out of context, and the shameless repetition and exploitation of it by Declan, Armey and other partisans led to the present situation, where it is no longer even questioned whether Gore claimed to invent the internet.
The cost of blinding yourself to truth is that others can define it for you. Don't let this bullshit continue. Question everything. Even this response, until you are satisfied you know who was telling the truth, and who was lying.
While anti-Gore partisans are fond of talking about Gore's alleged prevarications, one must consider carefully the irony of the falsehoods the partisans themselves have propagated.
Getting the judgement against them is easy
How, exactly, do you prove that they called you? Can you post a copy of your complaint?
Interestingly, part of the explanatory text of the bill points out that "[e]xisting case law provides that in the absence of evidence of agreement to the contrary, a teacher, rather than the institution for which he or she teaches, owns the common law copyright to his or her lectures." That does seem to make some sense, but are notes "the lecture"? If I draw a sketch of a painting, does the original artist own my sketch, too? (Or in this case, does the University of California?)
The reason for this is that the common law copyright was expressly abrogated in the Copyright Act of 1976 with few exceptions (see
Copyright Act Section 301, which preempts most state law trying to ape copyright law. The few exceptions include works that have not been fixed in tangible media, such as extemporaneous speeches.
However, they will have a great deal of trouble here: Most professors give their lectures from notes, effectively providing a public performance of a work (the notes) that WAS fixed in tangible media. In such cases, the California Bill may well have been preempted, and the case reverts to questions of whether notes taken by an audience constitute infringement, fair use or original restatments by a student of the unprotectable IDEAS of a lecture.
Long and short of this -- the litigation over this bill may be very interesting (read expensive and complicated). Supremacy and Commerce clause cases make for great lawyering -- although they may seem quite dull to most lay audiences.
Yes, obviousness is an important legal term. It's both an issue of fact to be determined by the court and a requirement for patentability. The angry posts of slashdotters saying "this is
incredibly obvious -- I can't believe such a patent application would be granted" is EVIDENCE that the invention does not meet this requirement.
My point is that the remarks to which I have replied manifest little understanding of the applicable standard. An undifferentiated sensation of obviousness by a technical person explained there actually *ISN'T* evidence of obviousness, as several Federal Circuit cases have stated -- indeed, there are cases where such a statments are properly excluded as irrelevant.
You state the obviousness test is a failure for many patents that have been granted.
I'm not sure what you mean by your remark. This appears to be a straw man, but I'm not sure precisely what you mean.
If you're not going to suggest we change the law and eliminate that test entirely (which I know
would be a distortion of your argument), then perhaps you could consider the slashdotters' views as evidence of both a) problems with a particular patent and b) probable problems
at the patent office.
I do not suggest the law needs to be changed, in fact. Nor would I agree with your proposal. While this is something about which reasonable people might disagree, that wasn't the subject of my posting. The subject wasn't whether a patent SHOULD be invalid -- this is about whether a particular patent *IS* invalid.
Before we analyze any proposal for a new standard, however, that standard should be clearly articulated so that it can be analyzed in depth. Merely waving arms around shoulda'-coulda' arguments will shed far more heat than light.
Best,
A
I dissent.
1) This is a recipe for disaster, where one can spend even more money litigating the virtual ephemerality than one spends on discovery. (We already spend more money on discovery than we do in preparing trial materials on the merits.) Still further, we can defeat this by simply replacing archives with "deletions," knowing that we can recover the data if we want it, but defeat discovery by claiming it was "deleted." Rather than create legal fictions in lieu of reality, why not simply put on those who intend to destroy things the burden if doing it well?
2) Even if it were practical, why are we treating discarded information differently from other non-discarded information? Why should we be permitted to go into the deep archives of a building to find smoking gun memoranda long thought destroyed, but not into the interstices of a hard disk?
3) It would be one thing to say, "no, we won't permit discovery." It is another thing to create some special-purpose exception to an exemption to a rule, knowing the rule to be filled with unanticipated consequences.
But the real problem I have with this proposal is more fundamental -- the proposal has the effect of concealing the truth without any other clear benefit.
It rewards a guy who meant to conceal some truth, probably reliable evidence in view of the effort, by concealing it after he screwed up in trying to destroy it.
There exist a host of rules (materiality, hearsay, best evidence, the exclusion rule for profits of an illegal search) during legal proceedings that keep evidence from finders of fact, but those rules tend to support other policies, such as reliabiity, civil liberties, and even oxymoronic judicial efficiency.
This proposed rule exists solely to make relevant, reliable evidence inadmissible. That doesn't, at least to me, seem just.
Per the Patent Act, "person having ordinary skill in the art." It's important to develop some sense of what is a PHOSITA, and how obviousness is determined. The following is an intentionally informal, incomplete, but well-intended effort to offer some intuition for how the problem is legally analyzed. It isn't the whole story, but if it helps develop some gut understanding, it did some good:
Imagine Vern, from the movie. A very dull lad, barely sentient. Now give him sufficient understanding to be able to read the "general literature" of the art, at least to the extent of being able to dully follow instructions set forth there and apply it to the art. What is more, give Vern a photographic memory containing all the relevant prior art.
So Vern can use a reference that spells out how to practice, and can "fill in the blanks" using routine practices. (To attach two pieces of wood, Vern the carpentry artist would probably figure out to use hammer and nail, because somewhere is a primer saying to affix two pieces you can use a hammer and nail). But Vern won't combine the art, put 2+2 together, unless the art expressly suggested the combination.
A patent claim is anticipated (and invalid) when a single reference contains EACH AND EVERY ELEMENT recited in the claim appears in the reference. If elements are missing in one reference, but appear in another, related, reference, Vern the artist might consider it obvious to combine the two elements, BUT ONLY IF THE ART (or another piece of art) teaches or suggests the combination.
If there are new elements in the art of record that are not naturally known as substitutes one for the other, it is very rare that obviousness will be found.
Those are just the basics, but perhaps it will provide a framwork/intuition for resolving these questions.
The initial postings related to the novelty and unobviousness standards. Your posting addresses the subject matter questions. To be patentable, an invention must satisfy BOTH requirements: (1) it must be patentable suject matter; and (2) it must be new, useful and unobvious as those terms are defined in the Patent Act.
Your well-reasoned post relied upon informal interpretations of old cases, and thus does not reflect the present judicial view of the subject matter issue. The most recent cases make clear that patentability "is understood to be [based] not on whether there is a mathematical algorithm at work, but on whether the algorithm-containing invention, as a whole, produces a tangible, useful, result.
That is the ultimate test. Does the process/method/apparatus produce a tangible, useful result. And tangible does not require a physical thing, as you will see if you review the citation below.
The seminal case in this arena is the State Street Bank case, but the best description of how "tangibility" works into the matter can be found in AT&T v. Excel. Required reading for anyone who would discuss the subject matter requirement.
Certainly it would be nice to clarify the Supreme's view on the matter, but they denied Cert in both the State Street and AT&T cases. The Federal Circuit has exclusive jurisdiction over patent cases, so until the Supes speak next, this is the final word.
The law says that prior art and anything obvious to someone trained in the art are specifically not patentable. Storing someone's credit card number and shipping address, indexed by the cookie returned by their browser is obvious to any software engineer.
That's not, precisely, the law, and at least one federal District court has already rejected this "hand-wave" obviousness argument with respect to the Amazon patent. Time will tell whether or not the Amazon patent is invalid, but to date, no court of competent jurisdiction has considered prior art and allegedly obvious differences therefrom to be read upon by the patent claims.
The actual language of the patent act is this: "(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. "
Each word of Section 103 is rife with meaning, including the important difference between someone trained in the art and a "person having ordinary skill in the art." Obviousness is an important legal term of art filled with meaning that is trivialized by the casual -- "its obvious to me" -- remarks so often seen on Slashdot.
The cliche of blaming the patent office for not thoroughly investigating patent applications, particularly because some colleague after the fact thinks the solution was obvious, proves too much -- if you think there is art invalidating a patent -- set it forth. If you think there are arguments for invalidity, state them. Making non-falsifiable allegations that a patent is "obvious to me" is merely to engage in demagoguery.
It's the patent office's fault; they are over taxed and not thoroughly investigating patent applications.
Pot. Kettle. Black. It is as much the critics fault for not thoroughly investigating the actual legal bases for patentability before drawing conclusions about the inadequacy of the system, and for not actually themselves investigating prior art of specific issued patents they claim to be invalid.
Whatever may be said about Amazon's one-click patent, it is not patently invalid -- not only has the patent office so ruled, but so has at least one Federal District Court. The failure of the obvious "obviousness" test, is that it doesn't work for many patents that have been held to be valid. Next time, let's use actual standards, not ones we wish were substituted for the law.