They've consistently said that there were 10 zillion flaws in the case and they intend to mention every one of them in those 56,000 words (presumably with their innovative legal obfuscation technology).
I can think of no strategy more certain to lose an appeal. Appellate courts despise shotgun compilations of errors. There are ALWAYS errors at trial, often many of them. The question isn't whether the trial was free from error, but whether a particular error is reversible. If Microsoft hopes to reargue the facts on appeal, it has all but admitted that it lost -- likewise if the thrust of its appeal is the AMOUNT of little errors. Their best shot is a solid, one, two or three-issue appeal, perhaps littered with footnotes to raise subordinate issues.
But, clearly, I don't represent Microsoft and they alone will decide how they will manage their appeal. After all, they managed their trial so well, who am I to make suggestions.
The Federal Rules of Appellate Procedure set forth in great detail the timetables for filing notices of appeal, serving demands for records, filing of initial, answer and reply briefs -- the whole smack. They spell out page limits to the word length (and no special treatment is made for the bug in Word that doesn't count words in footnotes).
While the Court may vary the rules on motion of the parties, such motions are highly disfavored, even when they are joinly made by the parties, and are generally denied.
It is strange that Microsoft feels it needs so much time to prepare, or that this case would be so unusual, after going to great lengths to deny the specialness of this case to the Supreme Court.
From the District Court opinion on Plaintiff's Motion for Preliminary Injunction:
"Defendants raised a number of defenses in their pleadings and during the hearing. In support of their position that Amazon.com is not likely to succeed at a trial on the merits, Defendants placed particular emphasis on arguments that the '411 patent is invalid on obviousness and anticipation grounds and that the Express Lane feature does not infringe any claims in the '411 patent. To a lesser extent, Defendants also suggested that the '411 patent is unenforceable. "
B&N has challenged validity and enforceability from the get-go, particularly during the Preliminary Injunction hearing. As you can see by reviewing the District Court Opinion, the Court rejected those arguments.
This is not to say there aren't new arguments of invalidity that can still be made at trial. Maybe, maybe not. However, only arguments made during the preliminary injunction hearing can be argued on appeal.
In fact, the headline is entirely appropriate. As the linked article clearly explains, the b+n position was not previously based on the validity of the patent-- b+n were simply arguing that they were not _infringing_ on that patent.
This is false. See the District Court Opinion granting Plaintiff's motion for an injunction, which focuses substantially on the question of invalidity for anticipation and obviousness as well as unenforceability of the patent.
Further, if what was quoted above were true, B&N would never be permitted to argue invalidity on appeal:
The purpose of an appeal is not to re-try a case. Appeals are permitted only to test whether the Court properly applied the law to the facts as the case was tried below. It is a a cannon of appellate law that you may not (with extraordinary exceptions not relevant here) argue any issue for the first time on appeal. If, as was suggested here, B&N did make a "substantial shift in the substance of the case," the Federal Circuit would be obliged to affirm summarily the preliminary injunction.
Though I was not myself present at the initial hearing before the District Court, news reports of the Preliminary Injunction made quite clear that B&N relied heavily on the validity of the patent.
From the headline and story, you'd have almost no idea what is actually going on. In fact, this is a continuation of the Amazon v. Barnes & Noble case filed last year, where Amazon sued B&N for patent infringement, sought a preliminary injunction, and Amazon prevailed.
Now, when a preliminary injunction is granted, the losing party is entitled to seek appeal directly to the Federal Circuit, rather than waiting until a final judgment is rendered in the case. This article is just that appeal. There is no new evidence or prior art that has been or can be raised, just a review of the decision below in view of the record that was then before the Court.
Maybe B&N will prevail, maybe not. If Amazon does prevail, however, do you suppose that we can expect to see a headline stating that the Amazon 1-click patent has been cleared as valid? Of course not. It would not be true, nor would it be appropriate -- that's not what will have happened -- this is just a case resolving an appeal of a temporary injunction. For the same reason, the present headline and story is likewise inappropriate.
I would, however, be interested in the specific issues being appealed -- does anyone know if a copy of the briefs may be found on-line?
As I have noted several times before, the law of signatures has NEVER BEFORE required that any particular technology or form be used to satisfy the statute of frauds. Period. You can sign, "Minnie Mouse," shave a slash on the side of a cow, make a plaster cast with a finger-mark in it, or any other fixation manifesting an intent to authenticate -- any or all of that can be enough.
It is up to the people engaged in a transaction to worry about deniability, forgeability and so forth. A forged signature does not bind me to an agreement, and the most casual X on a contract I didn't read does. That's the way it is, and has been for hundreds of years.
On the other hand, if you want to enforce an agreement, you will want to be able to prove that the signature existed and was signed by the person to be bound. If you accepted a difficult-to-prove, but legal technology, you should be prepared for the consequences. Likewise, be careful about the documents you sign, whether electronic or otherwise.
The case law has already been clear that teletyped and typewritten documents can be binding agreements, and the bits of case law that has come to date all supports the proposition that this law doesn't materially change the status quo. What it does do is to give comfort to those who would engage in high-stakes comemrcial transactions by electronic means -- who needn't fear that the enforceability of their documents may depend upon some seminal case based upon a new technology, however likely the result.
That's what drove this legislation. The rest is already well-inscribed in the common law.
And furthermore, even if the law claimed that Fair Use didn't exist, or restricted it tightly, it wouldn't matter; Fair Use is a construction of the courts first and foremost. We get it no matter what Congress says.
Histocially, this is quite true for Copyright cases -- fair use was a creature of the Courts, used to modify the harsh language from the 1909 Act, which was not codified by the Congress until the 1976 Act, which simply took the then-existing case law and wrote it into the Act, complete with a prescription that doing so would neither strenghten nor weaken the careful balance established by the Courts.
Now if only the Courts would apply like principles to the other portions of Title 17, particularly anti-circumvention.
Valenti insists he supports fair use, but only when the technology and the laws are changed to only allow proper compensation for the holders of IP for each viewing.
These words don't mean what Valenti thinks they mean. The plain text of the Copyright Act provides that fair use is not infringement, and hence no compensation for holders of IP would be proper.
This is the entire point of "fair use." Imagine that I had to pay a royalty to write a review of a recently published albumn.
As noted, these words don't mean what he thinks they mean.
BT's patents were granted in a dozen countries, but have lapsed after their 20-year lifespans. But for reasons that are not yet clear, the US patent application (US 4873662) was effectively only filed in 1986-and granted in 1989-and will remain in force until 2006.
This is no great mystery about this, and the remarks about a 1986 filing date are incorrect. The answer can be found on the face of the patent, or by checking ANY of the free on-line databases on the net.
U.S. Patent No. 4,873,662 issued on October 10, 1989. Under the applicable law at that time, the patent would be entitled to a 17-year term, which would end on October 10, 2006. (A few years back, the patent terms were changed to twenty years from date of filing, rather than seventeen years from the date of issue. However, the then-existing patents were grandfathered to the longer of the two possible terms).
The effective filing date of the patent, however, is not 1986, but to the contrary 7/12/1977. Accordingly, the critical date for invalidating prior art would be 7/12/1976. (Although a 1968 film, if it were in fact published about that time, or demonstrated legitimate, non-experimental, public use, sale or offer for sale of the invention, could beat that handily).
While the particular application that matured into the '662 patent was filed on August 15, 1980, that application was a continuation of an earlier application, Ser. No. 814,922, which was filed on the earlier date. The effective filing date of a continuation, if properly filed, is the date of the parent application -- even if the previous application was later abandoned.
What makes you think so? How do you know what I think it means?
Your prior writings manifest an imperfect undertsanding of the term. It is possible that you might have understood correctly and miswritten your intent, and if so, I certainly acknowlege that I am no mind-reader. But the legal meaning of the term is inconsistent with what you have written.
Obviousness isn't a highly technical legal issue.
This is further evidence of an imperfect understanding of the term as it is used in the context of determining whether or not a patent is valid.
It's the most subjective and debatable aspect of any patent - despite the mythical "person of ordinary skill in the field, and omniscient of all prior art", there doesn't exist a N point rule to decide on the obviousness of a supposed invention.
This is true. But given what it does mean in the law, even proof that "a patent has to be (in theory) non-obvious to someone 'learned in the art' would neither be necessary nor sufficient to invalidate a patent.
It is for this reason that I suggested that the terms do not mean what you think they mean.
The legal term of art "unobviousness" refers to the provisions of 35 U.S.C. s. 103, and it doesn't mean what you think it means.
The claim is the thing -- you compare the elements of the claim with those elements in a single piece of prior art. if all the elements are present, you have what is called anticipation, or invalidity under Section 102. If even one element is not present, then the patent is valid unless the DIFFERENCES between the claimed patent and the single piece of prior art would have been obvious to a person of ORDINARY SKILL in the art.
This issue of obviousness is a highly technical legal issue -- essentially, the question devolves to whether there exist other pieces of art that have the missing elements, and whether there exist prior art or teachings suggesting the combination. In the absence of that, obviousness is almost impossible to show.
In the present case, substantial art has already been presented to suggest invalidity on theories of anticipation and nonobviousness, yet the Court still found cause to grant a temporary injunction. This is a very unusual occurrence (patent temp injunctions are rare), and does not bode well for those claiming this patent to be invalid.
Time will tell, of course, but no one has yet to propose prior art here on Slashdot that gave me reason to think this patent was invalid.
I read this as saying that mirroring by 3rd parties probably doesn't qualify unless there is some direct interaction with the named defendant.
If you say so. Such an interpretation is just that -- one of several possible readings from obiter dicta. It isn't binding precedent for the proposition that two parties do not have "direct interaction" with the named defendant.
While I'd like to believe that what you say is true, the devil is in the details. Different cases with subtly different facts may well yield different results. This is why the decision to intervene in cases where broad equitable relief is sought is often a Hobson's choice.
Since it is plain beyond cavil that the sesquipedalian judges of this court opted to opine with grandiloquence, vel non, rather than plain English, I summarize for the rest of us in "abcedarian" form:
Look, you just can't appeal a case unless you are a party.
Really.
Well, almost always (as we always say in the law, "it depends").
Thus, if someone you know or share an interest with has been sued, you have two choices:
1) Make a motion to become a party (legally, to "intervene"). If you are not permitted to intervene, then you will be able to appeal. If you are permitted to intervene, you will become a party, with the upsides and downsides of being on the shooting end of the case. By intervening, however, you give up the right in many cases to later challenge the jurisdiction of the court.
2) Stand aside and hope it doesn't hit you. In so doing, you risk getting caught by an overbroad, even an unconstitutional injunction. The deal here is, that if a naughty injunction comes your way from a case in which you could have tried to intervene, but didn't, and you are "acting in concert" with a party, you are both: (1) bound to the injunction; and (2) have no recourse to appeal! (You would likely be granted privilege to file an amicus brief if the parties appeal, but there will be no appeal if they decide to settle or can't afford the appeal).
Of course, you could decide for yourself that you weren't acting in concert with the party, but if you are wrong, you face the business end of a contempt hearing. Nasty horns of a dilemma, to be sure. However, I believe the court stated the law correctly.
For those who want to know what is this "standing" thing:
Standing is the legal status of being able to address a court as to a particular case or controversy. Standing is necessary, but not sufficient, for the court to have jurisdiction. If you don't have standing, you can't play, because the court doesn't have jurisdiction to listen to you. To have standing to join a trial court case, you need to show a nexus to the issues. To have standing to join an appeal, you need to be a party in he decision appealed.
After all, Mac OS 7, 8, 9 and X are all available for substantially less than $1K. And, of course, there is also BeOS, et al. Put simply, if all that the Baby Bills could offer was a $1K Windows, they would all be quickly extinct, and Apple would be the next Microsoft.
What is more, if Apple decided to try to take a monopoly rake, it would then in turn have to face free software as well as anything else the flow of capital to a free market would bear.
All that is required is a free and fair market for OSes -- the rest, particularly the price, will take care of itself.
"Treaties overriding constitution" is an urban legend popular among certain right-wing factions concerned about the New World Order and similar conspiracy theories.
The constitution doesn't say so, and neither does the most applicable case law. The Supremacy Clause reads as follows:
This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.
Thus, a treaty is no more immune from Constitutional scrutiny than is any other "law[] of the United States which shall be made." While treaties (and federal law) are CLEARLY given special treatment as supreme law over that of states, the Constitution has special overriding status, and the Supreme Court has stated so clearly in several cases. See, e.g., Missouri v. Holland, 252 US 416 (1920) ("a treaty cannot be valid if it infringes the Constitution").
As with most bills, the devil is in the details. Consider the following section:
"(b) As used in this section, the term "personal interactive performance" means the performance of a sound recording and the nondramatic musical works embodied therein by means of a digital transmission and includes any digital phonorecord deliveries associated with such transmission, provided that the transmission is received only by a recipient who has provided to the transmitting organization proof that the recipient lawfully possesses a phonorecord of such sound recording and who has conveyed to the transmitting organization a specific request to receive the transmission of the performance."
How does one transmit "proof" of "lawful possession," and what proof is sufficient? Clearly, proof of possession is understandable, but "lawful possession?"
How can this possibly be construed to be a "spanking?" Certainly, DoJ wants it the other way, as the delay benefits Microsoft, but this decision means nothing in the long run -- and hardly indicates which way the Court was going to go. Indeed, if the Court DID take it up, it would still not indicate how they would have ruled.
The decision was simply to decide whether to take the case up before the record was developed and analyzed by the DC Circuit. There were many open questions (not an accident that Microsoft's Appeal was scattergun -- with lots of issues, BTW), and it is quite likely the Court felt that an Appeal would substantially reduce the number of issues to be addressed by the Court.
How much do you get paid per diem for consulting, or for a comprehensive cryptanalyis?
$10K isn't a prize. It is a joke.
Had I broken one of their candidate schemes, I would expect a lot more for my efforts -- or I would keep it for my own later uses, just in case the DMCA is later abrogated or amended.
Choosing an awful example from a single product, the author indicts an entire genre. Sure, bad adventure games are bad. But so what? So are bad shoot-em-ups.
In the 80s, the attraction to photorealism, which sucked up too many resources to leave room for any game, was undeniable. In time, however, Moore's law makes it possible to step back again, and perhaps we will someday see an article ridiculing the "brain-dead" gib-hunting of Doom, arguing that the raw shoot-em-up killed itself.
But neither view is fair to either genre. At a time when photorealism in personal computers was a laughable goal, adventure games were the place for an artist, and therefore a gamer, to be. Suggestive (as opposed to representational) graphics added something, but the text was how we painted images in "those days."
Some artists were oblivious to the problems of "dead ends," ludicrous obscure non-puzzle puzzles and improbable (sometimes indefensible) prose. 90% of Text adventures are crap. But that's OK. 90% of everything is crap.
Now, we confront again the possibility of overcoming the oxymoron "interactive fiction" with new genres that are not text adventures, not RPGs and are not shoot-em-ups -- yet draw from all that is good in each. But the artists really haven't stepped to the plate. When they do, we'll see magic that will make last year's genre seem old and obsolete. (Indeed, studying the traits of that oxymoron provides a far more plausible explanation for the relative success of these two genres.)
In the meanwhile, let us evaluate the artist within their media, and the context of what their machines could do -- and appreciate what was wonderful in every game.
I thank my colleagues for their correction, but I'm not sure where Judge Kaplan stated so in his opinion. Perhaps this was Valenti's gloss on the opinion?
Indeed, Judge Kaplan's First Amendment analysis was, IMHO, highly suspect, essentially legal-babble for replacing the traditional first amendment standards with a judge's discretion to say which regulations were permissible and which were not in the case of "functional" speech. As the 9th Circuit found, this is a dangerous view, and one that cannot be tolerated.
But while I found Judge Kaplan's analysis dangerously violative of fundamental constitutional principles, I don't think it could fairly be reduced on any analysis to "commerce trumps the First Amendment."
On the other hand, if I missed something, that alone would be extraordinarily strong grounds for appeal for the reasons previously stated.
DMCA indemnifies service providers from liability for infringement. While Napster didn't fall into that category, clearly the major universities do. Indeed, a plaintiff suing in such a case is likely to risk sanctions under Federal Rules of Civil Procedure Rule 11.
You can avoid the indemnity by giving notice of particular infringements, but it is unlikely that Metallica can satisfy these requirements without going after particular students -- something they have been desperate to avoid.
Motley Fool reports that Valenti believes that "Commerce trumpst the First Amendment."
Of course, this is not only fundamentally wrong, but laughable. And it is not the law. The Supreme Court has said so.
The Congress passed what seemed to be some overwhelmingly reasonable laws a few years back, stating only that the Copyright, Trademark and Patent laws applied to the States. However, during a Patent and Trademark infringement ruling appealed to the Supreme Court last year, the Court held that the Eleventh Amendment trumps the Patent and Copyright clause, and precludes the Congress from passing laws impinging on State Sovereignty. This is the Florida Prepaid Credit case. Just a year before that, the Court addressed precisely the same issue, but with respect to the Commerce clause. That was the Seminole Tribes case.
In each case, the result was simply this: Amendments trumped the body of the Constitution.
Congress may make no law. Although "no law" doesn't really mean no law, it does mean that unless there exists an exception, First Amendement uber alles.
Now why does the Copyright Act not, properly applied, impinge upon First Amendment rights? So the argument goes: it only prevents aping the expression of another -- you can't be liable under Copyright for using the ideas of the work, and you can't be liable under Copyright for stating your own original ideas, even if they are identical in expression to the copyrighted work of another. At least that's what the Courts have stated. It's not that the First Amendment doesn't apply -- its that the First Amendment isn't implicated by the Act. Where it is, the interstices are usually picked up by the fair use doctrine.
And that brings us to the DeCSS and Napster cases. In each case, we are dealing with an application of the Copyright law that doesn't concern itself at all with the distribution of a particular work by the plaintiffs -- the crux of the case is that an original work BY THE DEFENDANTS is facilitating some sort of copyright infringement. Indeed, this is really creating more patent-like than copyright-like protections, and for unpatentable technologies.
And it is for that reason, that the First Amendment is not only implicated, but a paramount issue in these cases. The "contrebanded" works, at the end of the day, are not those of the plaintiffs, but the defendants.
Slashdot Mirror
They've consistently said that there were 10 zillion flaws in the case and they intend to mention every one of them in those 56,000 words (presumably with their innovative legal obfuscation technology).
I can think of no strategy more certain to lose an appeal. Appellate courts despise shotgun compilations of errors. There are ALWAYS errors at trial, often many of them. The question isn't whether the trial was free from error, but whether a particular error is reversible. If Microsoft hopes to reargue the facts on appeal, it has all but admitted that it lost -- likewise if the thrust of its appeal is the AMOUNT of little errors. Their best shot is a solid, one, two or three-issue appeal, perhaps littered with footnotes to raise subordinate issues.
But, clearly, I don't represent Microsoft and they alone will decide how they will manage their appeal. After all, they managed their trial so well, who am I to make suggestions.
The Federal Rules of Appellate Procedure set forth in great detail the timetables for filing notices of appeal, serving demands for records, filing of initial, answer and reply briefs -- the whole smack. They spell out page limits to the word length (and no special treatment is made for the bug in Word that doesn't count words in footnotes).
While the Court may vary the rules on motion of the parties, such motions are highly disfavored, even when they are joinly made by the parties, and are generally denied.
It is strange that Microsoft feels it needs so much time to prepare, or that this case would be so unusual, after going to great lengths to deny the specialness of this case to the Supreme Court.
From the District Court opinion on Plaintiff's Motion for Preliminary Injunction:
"Defendants raised a number of defenses in their pleadings and during the hearing. In support of their position that Amazon.com is not likely to succeed at a trial on the merits, Defendants placed particular emphasis on arguments that the '411 patent is invalid on obviousness and anticipation grounds and that the Express Lane feature does not infringe any claims in the '411 patent. To a lesser extent, Defendants also suggested that the '411 patent is unenforceable. "
B&N has challenged validity and enforceability from the get-go, particularly during the Preliminary Injunction hearing. As you can see by reviewing the District Court Opinion, the Court rejected those arguments.
This is not to say there aren't new arguments of invalidity that can still be made at trial. Maybe, maybe not. However, only arguments made during the preliminary injunction hearing can be argued on appeal.
In fact, the headline is entirely appropriate. As the linked article clearly explains, the b+n position was not previously based on the validity of the patent-- b+n were simply arguing that they were not _infringing_ on that patent.
This is false. See the District Court Opinion granting Plaintiff's motion for an injunction, which focuses substantially on the question of invalidity for anticipation and obviousness as well as unenforceability of the patent.
Further, if what was quoted above were true, B&N would never be permitted to argue invalidity on appeal:
The purpose of an appeal is not to re-try a case. Appeals are permitted only to test whether the Court properly applied the law to the facts as the case was tried below. It is a a cannon of appellate law that you may not (with extraordinary exceptions not relevant here) argue any issue for the first time on appeal. If, as was suggested here, B&N did make a "substantial shift in the substance of the case," the Federal Circuit would be obliged to affirm summarily the preliminary injunction.
Though I was not myself present at the initial hearing before the District Court, news reports of the Preliminary Injunction made quite clear that B&N relied heavily on the validity of the patent.
www.c-span.org
From the headline and story, you'd have almost no idea what is actually going on. In fact, this is a continuation of the Amazon v. Barnes & Noble case filed last year, where Amazon sued B&N for patent infringement, sought a preliminary injunction, and Amazon prevailed.
Now, when a preliminary injunction is granted, the losing party is entitled to seek appeal directly to the Federal Circuit, rather than waiting until a final judgment is rendered in the case. This article is just that appeal. There is no new evidence or prior art that has been or can be raised, just a review of the decision below in view of the record that was then before the Court.
Maybe B&N will prevail, maybe not. If Amazon does prevail, however, do you suppose that we can expect to see a headline stating that the Amazon 1-click patent has been cleared as valid? Of course not. It would not be true, nor would it be appropriate -- that's not what will have happened -- this is just a case resolving an appeal of a temporary injunction. For the same reason, the present headline and story is likewise inappropriate.
I would, however, be interested in the specific issues being appealed -- does anyone know if a copy of the briefs may be found on-line?
As I have noted several times before, the law of signatures has NEVER BEFORE required that any particular technology or form be used to satisfy the statute of frauds. Period. You can sign, "Minnie Mouse," shave a slash on the side of a cow, make a plaster cast with a finger-mark in it, or any other fixation manifesting an intent to authenticate -- any or all of that can be enough.
It is up to the people engaged in a transaction to worry about deniability, forgeability and so forth. A forged signature does not bind me to an agreement, and the most casual X on a contract I didn't read does. That's the way it is, and has been for hundreds of years.
On the other hand, if you want to enforce an agreement, you will want to be able to prove that the signature existed and was signed by the person to be bound. If you accepted a difficult-to-prove, but legal technology, you should be prepared for the consequences. Likewise, be careful about the documents you sign, whether electronic or otherwise.
The case law has already been clear that teletyped and typewritten documents can be binding agreements, and the bits of case law that has come to date all supports the proposition that this law doesn't materially change the status quo. What it does do is to give comfort to those who would engage in high-stakes comemrcial transactions by electronic means -- who needn't fear that the enforceability of their documents may depend upon some seminal case based upon a new technology, however likely the result.
That's what drove this legislation. The rest is already well-inscribed in the common law.
And furthermore, even if the law claimed that Fair Use didn't exist, or restricted it tightly, it wouldn't matter; Fair Use is a construction of the courts first and foremost. We get it no matter what Congress says.
Histocially, this is quite true for Copyright cases -- fair use was a creature of the Courts, used to modify the harsh language from the 1909 Act, which was not codified by the Congress until the 1976 Act, which simply took the then-existing case law and wrote it into the Act, complete with a prescription that doing so would neither strenghten nor weaken the careful balance established by the Courts.
Now if only the Courts would apply like principles to the other portions of Title 17, particularly anti-circumvention.
A colleague noted:
Valenti insists he supports fair use, but only when the technology and the laws are changed to only allow proper compensation for the holders of IP for each viewing.
These words don't mean what Valenti thinks they mean. The plain text of the Copyright Act provides that fair use is not infringement, and hence no compensation for holders of IP would be proper.
This is the entire point of "fair use." Imagine that I had to pay a royalty to write a review of a recently published albumn.
As noted, these words don't mean what he thinks they mean.
BT's patents were granted in a dozen countries, but have lapsed after their 20-year lifespans. But for reasons that are not yet clear, the US patent application (US 4873662) was effectively only filed in 1986-and granted in 1989-and will remain in force until 2006.
This is no great mystery about this, and the remarks about a 1986 filing date are incorrect. The answer can be found on the face of the patent, or by checking ANY of the free on-line databases on the net.
U.S. Patent No. 4,873,662 issued on October 10, 1989. Under the applicable law at that time, the patent would be entitled to a 17-year term, which would end on October 10, 2006. (A few years back, the patent terms were changed to twenty years from date of filing, rather than seventeen years from the date of issue. However, the then-existing patents were grandfathered to the longer of the two possible terms).
The effective filing date of the patent, however, is not 1986, but to the contrary 7/12/1977. Accordingly, the critical date for invalidating prior art would be 7/12/1976. (Although a 1968 film, if it were in fact published about that time, or demonstrated legitimate, non-experimental, public use, sale or offer for sale of the invention, could beat that handily).
While the particular application that matured into the '662 patent was filed on August 15, 1980, that application was a continuation of an earlier application, Ser. No. 814,922, which was filed on the earlier date. The effective filing date of a continuation, if properly filed, is the date of the parent application -- even if the previous application was later abandoned.
What makes you think so? How do you know what I think it means?
Your prior writings manifest an imperfect undertsanding of the term. It is possible that you might have understood correctly and miswritten your intent, and if so, I certainly acknowlege that I am no mind-reader. But the legal meaning of the term is inconsistent with what you have written.
Obviousness isn't a highly technical legal issue.
This is further evidence of an imperfect understanding of the term as it is used in the context of determining whether or not a patent is valid.
It's the most subjective and debatable aspect of any patent - despite the mythical "person of ordinary skill in the field, and omniscient of all prior art", there doesn't exist a N point rule to decide on the obviousness of a supposed invention.
This is true. But given what it does mean in the law, even proof that "a patent has to be (in theory) non-obvious to someone 'learned in the art' would neither be necessary nor sufficient to invalidate a patent.
It is for this reason that I suggested that the terms do not mean what you think they mean.
The legal term of art "unobviousness" refers to the provisions of 35 U.S.C. s. 103, and it doesn't mean what you think it means.
The claim is the thing -- you compare the elements of the claim with those elements in a single piece of prior art. if all the elements are present, you have what is called anticipation, or invalidity under Section 102. If even one element is not present, then the patent is valid unless the DIFFERENCES between the claimed patent and the single piece of prior art would have been obvious to a person of ORDINARY SKILL in the art.
This issue of obviousness is a highly technical legal issue -- essentially, the question devolves to whether there exist other pieces of art that have the missing elements, and whether there exist prior art or teachings suggesting the combination. In the absence of that, obviousness is almost impossible to show.
In the present case, substantial art has already been presented to suggest invalidity on theories of anticipation and nonobviousness, yet the Court still found cause to grant a temporary injunction. This is a very unusual occurrence (patent temp injunctions are rare), and does not bode well for those claiming this patent to be invalid.
Time will tell, of course, but no one has yet to propose prior art here on Slashdot that gave me reason to think this patent was invalid.
I read this as saying that mirroring by 3rd parties probably doesn't qualify unless there is some direct interaction with the named defendant.
If you say so. Such an interpretation is just that -- one of several possible readings from obiter dicta. It isn't binding precedent for the proposition that two parties do not have "direct interaction" with the named defendant.
While I'd like to believe that what you say is true, the devil is in the details. Different cases with subtly different facts may well yield different results. This is why the decision to intervene in cases where broad equitable relief is sought is often a Hobson's choice.
Since it is plain beyond cavil that the sesquipedalian judges of this court opted to opine with grandiloquence, vel non, rather than plain English, I summarize for the rest of us in "abcedarian" form:
Look, you just can't appeal a case unless you are a party.
Really.
Well, almost always (as we always say in the law, "it depends").
Thus, if someone you know or share an interest with has been sued, you have two choices:
1) Make a motion to become a party (legally, to "intervene"). If you are not permitted to intervene, then you will be able to appeal. If you are permitted to intervene, you will become a party, with the upsides and downsides of being on the shooting end of the case. By intervening, however, you give up the right in many cases to later challenge the jurisdiction of the court.
2) Stand aside and hope it doesn't hit you. In so doing, you risk getting caught by an overbroad, even an unconstitutional injunction. The deal here is, that if a naughty injunction comes your way from a case in which you could have tried to intervene, but didn't, and you are "acting in concert" with a party, you are both: (1) bound to the injunction; and (2) have no recourse to appeal! (You would likely be granted privilege to file an amicus brief if the parties appeal, but there will be no appeal if they decide to settle or can't afford the appeal).
Of course, you could decide for yourself that you weren't acting in concert with the party, but if you are wrong, you face the business end of a contempt hearing. Nasty horns of a dilemma, to be sure. However, I believe the court stated the law correctly.
For those who want to know what is this "standing" thing:
Standing is the legal status of being able to address a court as to a particular case or controversy. Standing is necessary, but not sufficient, for the court to have jurisdiction. If you don't have standing, you can't play, because the court doesn't have jurisdiction to listen to you. To have standing to join a trial court case, you need to show a nexus to the issues. To have standing to join an appeal, you need to be a party in he decision appealed.
Screed, indeed!
After all, Mac OS 7, 8, 9 and X are all available for substantially less than $1K. And, of course, there is also BeOS, et al. Put simply, if all that the Baby Bills could offer was a $1K Windows, they would all be quickly extinct, and Apple would be the next Microsoft.
What is more, if Apple decided to try to take a monopoly rake, it would then in turn have to face free software as well as anything else the flow of capital to a free market would bear.
All that is required is a free and fair market for OSes -- the rest, particularly the price, will take care of itself.
The constitution doesn't say so, and neither does the most applicable case law. The Supremacy Clause reads as follows:
Thus, a treaty is no more immune from Constitutional scrutiny than is any other "law[] of the United States which shall be made." While treaties (and federal law) are CLEARLY given special treatment as supreme law over that of states, the Constitution has special overriding status, and the Supreme Court has stated so clearly in several cases. See, e.g., Missouri v. Holland, 252 US 416 (1920) ("a treaty cannot be valid if it infringes the Constitution").
How does one transmit "proof" of "lawful possession," and what proof is sufficient? Clearly, proof of possession is understandable, but "lawful possession?"
Time will tell.
How can this possibly be construed to be a "spanking?" Certainly, DoJ wants it the other way, as the delay benefits Microsoft, but this decision means nothing in the long run -- and hardly indicates which way the Court was going to go. Indeed, if the Court DID take it up, it would still not indicate how they would have ruled.
The decision was simply to decide whether to take the case up before the record was developed and analyzed by the DC Circuit. There were many open questions (not an accident that Microsoft's Appeal was scattergun -- with lots of issues, BTW), and it is quite likely the Court felt that an Appeal would substantially reduce the number of issues to be addressed by the Court.
How much do you get paid per diem for consulting, or for a comprehensive cryptanalyis?
$10K isn't a prize. It is a joke.
Had I broken one of their candidate schemes, I would expect a lot more for my efforts -- or I would keep it for my own later uses, just in case the DMCA is later abrogated or amended.
Choosing an awful example from a single product, the author indicts an entire genre. Sure, bad adventure games are bad. But so what? So are bad shoot-em-ups.
In the 80s, the attraction to photorealism, which sucked up too many resources to leave room for any game, was undeniable. In time, however, Moore's law makes it possible to step back again, and perhaps we will someday see an article ridiculing the "brain-dead" gib-hunting of Doom, arguing that the raw shoot-em-up killed itself.
But neither view is fair to either genre. At a time when photorealism in personal computers was a laughable goal, adventure games were the place for an artist, and therefore a gamer, to be. Suggestive (as opposed to representational) graphics added something, but the text was how we painted images in "those days."
Some artists were oblivious to the problems of "dead ends," ludicrous obscure non-puzzle puzzles and improbable (sometimes indefensible) prose. 90% of Text adventures are crap. But that's OK. 90% of everything is crap.
Now, we confront again the possibility of overcoming the oxymoron "interactive fiction" with new genres that are not text adventures, not RPGs and are not shoot-em-ups -- yet draw from all that is good in each. But the artists really haven't stepped to the plate. When they do, we'll see magic that will make last year's genre seem old and obsolete. (Indeed, studying the traits of that oxymoron provides a far more plausible explanation for the relative success of these two genres.)
In the meanwhile, let us evaluate the artist within their media, and the context of what their machines could do -- and appreciate what was wonderful in every game.
I thank my colleagues for their correction, but I'm not sure where Judge Kaplan stated so in his opinion. Perhaps this was Valenti's gloss on the opinion?
Indeed, Judge Kaplan's First Amendment analysis was, IMHO, highly suspect, essentially legal-babble for replacing the traditional first amendment standards with a judge's discretion to say which regulations were permissible and which were not in the case of "functional" speech. As the 9th Circuit found, this is a dangerous view, and one that cannot be tolerated.
But while I found Judge Kaplan's analysis dangerously violative of fundamental constitutional principles, I don't think it could fairly be reduced on any analysis to "commerce trumps the First Amendment."
On the other hand, if I missed something, that alone would be extraordinarily strong grounds for appeal for the reasons previously stated.
DMCA indemnifies service providers from liability for infringement. While Napster didn't fall into that category, clearly the major universities do. Indeed, a plaintiff suing in such a case is likely to risk sanctions under Federal Rules of Civil Procedure Rule 11.
You can avoid the indemnity by giving notice of particular infringements, but it is unlikely that Metallica can satisfy these requirements without going after particular students -- something they have been desperate to avoid.
Motley Fool reports that Valenti believes that "Commerce trumpst the First Amendment."
Of course, this is not only fundamentally wrong, but laughable. And it is not the law. The Supreme Court has said so.
The Congress passed what seemed to be some overwhelmingly reasonable laws a few years back, stating only that the Copyright, Trademark and Patent laws applied to the States. However, during a Patent and Trademark infringement ruling appealed to the Supreme Court last year, the Court held that the Eleventh Amendment trumps the Patent and Copyright clause, and precludes the Congress from passing laws impinging on State Sovereignty. This is the Florida Prepaid Credit case. Just a year before that, the Court addressed precisely the same issue, but with respect to the Commerce clause. That was the Seminole Tribes case.
In each case, the result was simply this: Amendments trumped the body of the Constitution.
Congress may make no law. Although "no law" doesn't really mean no law, it does mean that unless there exists an exception, First Amendement uber alles.
Now why does the Copyright Act not, properly applied, impinge upon First Amendment rights? So the argument goes: it only prevents aping the expression of another -- you can't be liable under Copyright for using the ideas of the work, and you can't be liable under Copyright for stating your own original ideas, even if they are identical in expression to the copyrighted work of another. At least that's what the Courts have stated. It's not that the First Amendment doesn't apply -- its that the First Amendment isn't implicated by the Act. Where it is, the interstices are usually picked up by the fair use doctrine.
And that brings us to the DeCSS and Napster cases. In each case, we are dealing with an application of the Copyright law that doesn't concern itself at all with the distribution of a particular work by the plaintiffs -- the crux of the case is that an original work BY THE DEFENDANTS is facilitating some sort of copyright infringement. Indeed, this is really creating more patent-like than copyright-like protections, and for unpatentable technologies.
And it is for that reason, that the First Amendment is not only implicated, but a paramount issue in these cases. The "contrebanded" works, at the end of the day, are not those of the plaintiffs, but the defendants.