It would cost about $400.00 per application. Probably too expensive to effectively flood things. Also, each application must be accompanied by an oath sworn under threat of perjury that the applicant is the inventor. Thus, a fair amount of original thought and effort needs to go into each application, or the Solicitor might start fighting back with threats of criminal action.
The letter of this clause should invalidate patents when prior art can be demonstrated. To the extent that that does not happen, the intent "To promote the Progress of Science and useful Arts" is violated.
That being said, the Constitutional argument is hopeless. On Article I, Section 8 cases, courts defer so long as Congress can proffer a "rational basis" for the statute's constitutionality. Further, even if the bill were unauthorized by the Patent and Copyright Clause, Congress can always rely on the Commerce Clause (also in Article I, Section 8), which grants plenary rights to regulate interstate commerce.
However, soundbites like the one in the teaser for this article, can really misstate the situation. An application may run to hundreds of pages. Maybe most are only 10! Does anyone know the average? Patent Office employees get 8 hours to process, review, and approve a patent application. I bet you'd get really good at it after the first few thousand. I've seen bio papers peer reviewed in about that time.
The vast majority of patents are under 10 pages printed (including drawing sheets). Typically this is approximately 15-25 pages of double-spaced text. The 8 hours is an average figure, while the multi-hundred page application is an extraordinary case. Most ultra-long applications comprise repetive claim structures, claiming the same invention in ten or so different ways.
If I were to propose a fix for what's broken with the patent system, it would go something like: (1) Only legitimate innovation is patentable. Patent inspectors have to either deny a patent, or produce (and attach to the patent) a written description of why the patent is valid
In view of recent case law, examiners must now write up reasons for allowance to accompany a notice of allowability.
. . . is that they get just as much credit for a final rejection as for a second action allowance. And, they don't risk getting downgraded for poor allowances on quality reviews.
. . . an examiner gets the same credit for a final rejection that he gets for an allowance. And during quality reviews, gets seriously dunned for poor allowances.
Open source inventors are especially vulnerable, because participating in the patent process in any way will cost you six or seven figures, which open source developers rarely have.
This guy is writing from the "making it up as he goes" department. The truth is far more interesting.
Unless you are counting in Yen, the answer is never -- not in any jurisdiction. A patent application (including search and opinion) typically costs between $2,500 and $15,000 depending upon the art and the lawyer drafting the app. In an extraordinary case (or genetics-related invention), perhaps as much as $25,000. Now that's steep bread indeed, but this guy clearly has never priced or paid for a patent in his life.
It has never been the case that an average examination was less than seven or eight hours. Never. For an examination fee of a few hundred bucks, the most that can be hoped for is what is called in the trade a "novelty" or "patentability" search (as opposed to a validity search). In most art areas, this is reasonably adequate.
A validity search typically requires far more resources, on the order of $10K-$50K or more. In litigation scenarios, a six figure search bill is not suprisingly uncommon. Since the corpus of prior art is virtually infinite in scope, one can spend as much as you want and still not have considered all the relevant art.
Congress made a determination to balance the quality of a patent search against the cost of access to the patent system. And for most art areas, this balancing is adequate.
Now as to the rhetoric. While an average eight hours are spent on examination, this does not mean that eight hours only will be spent on a multi-hundred page document. The number of huge applications are a small fraction, and even for large applications (at least in the software arts), they are large because of the multiplicity of claims (most of which are similar, and the patterns to which are obvious) filed as a result of recent case law. His remark that they are highly technical ignores that examiners only review applications in their particular area of expertise.
In short, it is perhaps most polite simply to note that Bryar was using his statistics improvidently.
Now, that being said, I for one acknowledge and agree that a novelty search is inadequate for certain art areas, in particular the software arts and methods of doing business. Too many patents are issuing when the best art had not been considered.
The real harm from this is that once the stamp is impressed on the deed, the claims are cloaked in a virtually impossible to overcome presumption of validity, even when killer art is available. The jury is instructed that unless "clear and convincing evidence" of invalidity is offered, they must find for the plaintiff. In practice, juries always find some doubt, and find the patent valid.
This is wrong and unjust, particularly when a defendant raised art that: (i) was not considered by the examiner; and (ii) which raises a substantial new question of patentability.
I have a proposal for legislation presently being considered in various fora, which I think may adequately strike more fairly the balance between keeping the scope and costs of examination in check, while protecting the marketplace. For prior art that fits the preceding two criteria, reduce the standard of evidence to that of a mere preponderance of the evidence. If the art is new, let the court consider it without enhanced evidentiary requirements, and thus let the plaintiff go to court at his or her own risk.
For more detail on the proposed reforms, check out this memorandum.
For an excellent on-line collection of relevant international documents and statutes relating to space law, check out the Archimedes web site. A survey of applicable treaties can be found at the Space web site.
An article on the point raised in the note is: "Emerging law of outer space - the analogy of maritime salvage" / Almond, Harry H., Jr. / 19 J. OF SPACELAW #1, 1991, P67. You should be able to find this in most law school libraries.
The problem with the salvage analogy is that there is at present no legal mechanism for a nation to absolve its responsibility for objects placed into outer space. There doesn't really seem to be legal recognition of abandoned property in space. I understand that the prohibitions against military operations in the Outer Space Treaty have been argued to preclude private salvage as well. This is not to say that salvage is prohibited, only that interest in any property rights to the salvage estate are unclear.
Though I practice intellectual property law, these remarks should be considered coming from a lay person -- I have absolutely no real clue what is going on in these space law/admiralty issues beyond a rudimentary understanding of the Space Patent Act.
Design patents protect only the ornamental features of an apparatus. It is a defense to a design patent claim that the scope of the patent embraces utilitarian features. The article incorrectly suggests that patents for a design are not subject to examination -- the design must be novel, original and ornamental, and this includes the unobviousness standard set forth in Section 103 of the Patent Act. 35 U.S.C. s. 171.
Trade dress and product configuration protection under the Lanham Act and common law of most states is not new by any means. The configuration, for example, of the Fantastic spray-bottle was the subject of a landmark case decades ago. A Supreme Court case addressing trade dress, Two Pesos v. Taco Cabana, made clear that designs would be treated under the trademark act just as names, logos and other configurations. The Supreme Court is presently revisiting that very question to flesh out this issue.
As with design patents, it is an absolute defense to a claim of unfair competition or trademark infringement that a design is functional.
The issue under all these theories (simplifying to some extent) is whether the consumers would be confused as to the source or origin of the respective products. With design patents, the analysis is similar.
It is highly unlikely that transparent computers would infringe per se, even taking the broadest view of these applicable laws. The question is whether the design is distinctive, embodies substantial good will, and whether the defendant has tried to usurp that good will by its conduct.
While these oversimplifications of the law are not entirely accurate, it does fairly characterize the applicable standards. As you can see, Apple had a case. Perhaps the defendants also had a case. That is what the courts are all about. The law in this area is sound, designed to protect the marketplace for free and fair competition, the consumer as well as the intellectual property owner.
Yes, it is possible to wildly overreach in this arena, as with any other claim at law. This doesn't appear to be such a case.
I believe that the greatest difficult with the patent system is not so much the assertion of valid patents, but the risk of bullying with patents that are invalid. Particularly in the software arts, it has become increasingly common for a patent to issue in the face of substantially invalidating prior art that not considered by the examiner.
The difficulty is that even with invalidating art in hand, the standard of proof by "clear and convincing evidence," is virtually impossible to meet in practice before a jury. Given the complexity of the law alone, and informed that if they waver in any sense as to their convictions, they must find for the plaintiff, your average juror will invariably find the patent valid, regardless of the facts of any particular case.
This makes it practically impossible for a small or mid-sized business to defend a case based upon prior art invalidity, and commercially infeasible for a well-heeled company to do so, unless the subject matter is core or critical to its business.
My suggestion is that when invalidating prior art was not considered by the PTO, and raises a substantial new question of patentability, then the clear and convincing standard be relaxed to the more common "preponderance of the evidence" standard. In all other cases, the present "clear and convincing" standard would apply.
This would continue to protect sound patents. However, when new and invalidating prior art raising issues not considered during examination is found, the art will raise a significant and meaningful deterrent against the bullying practices that have now become so common in the industry.
A Barnes and Nobles or an Amazon can realistically expect to see a case through its appeal. A small or mid-sized business may barely be able to afford to bring a case through trial. This proposal makes it possible to obtain a just result when bad patents are asserted, while continuing to provide proper protections for patentees asserting sound patents.
While it is common to complain that the law has, somehow, fallen way behind technology, modern experience has shown that, even granting the proposition, the Congress has manifest even less understanding as it undertakes to "update the law."
IP law, at least, is rooted in clearly understood public policy recognizing the conflict between granting a monopoly to provide incentive for authors/inventors and the engines of commerce necessary to provide incentive for the delivery of that technology and further innovation. Adjudication of IP laws in view of those policies leads, according to we Strong IP guys, to a sound foundation for evolution and growth of a technology based economy.
Common law adjudication, as opposed to passage of new law, works well in this regard. Left to itself, the cases and the law tends to converge to reasonable compromises between these issues. The development of Copyright infringement law regarding software is a glowing tribute to the success of policy-based common-law adjudication.
However, as Congress adopts its "updates," it seems to have lost track of the carefully negotiated balance of concerns, and is simply allowing power grabs to the most monied and obvious constitutencies. Thus, we have wholly unbalanced revisions of the law: trademark dilution; copyright technology circumvention and worse.
While I am known to be one of the stronger voices favoring Strong IP in these letters, I fervently oppose the DMCA, which I believe is not "Strong IP," but rather a new kinds of property right. Circumvention law gives unliminted-term de-facto patent protection for unpatentable and un-novel inventions. Dilution gives rights in gross to words stolen from the English language. None of these things has anything to do with the careful balancing of concerns that we Strong IP use as the foundation of our arguments.
My point is that DMCA doesn't protect IP. It protects some new kind of special interest entitlement, unrelated to the subtle balancings that are the cornerstone of IP.
Accordingly, notwithstanding my Strong IP stance, I join the voices of despair assailing DMCA and its ilk. It is time to change the trend of mindless power-grabs, and to make the Congress accountable -- before they actually *DO* destroy America's competitiveness.
I would tend to agree with Eric. It is common to see language incorporating international treaties or provisions, such as INCOTERMS, or the law of "third party" nations, particularly in international transactions. As understood, it is fairly routine to enforce such provisions.
I'm really not sure what uncertainty about this point Cem Kaner's remarks, cited in the article, was addressing. Cem?
What makes you think these provisions can't occur without UCITA? That is the thing about contract law -- its private laws, and two parties can enter into just about any deal they want. The trick is not to buy from idiots who offer only provisions you can't stand.
If the market really, truly cares about the provision, they'll soon be out of business. If the market doesn't care, then, you're just whining about the results of free enterprise.
In any case UCITA isn't necessary for these things to happen, and it won't be sufficient to make them happen.
Please identify the cartel provision? Of course there isn't one. UCITA is just contract law, for gosh sake, and contracts is the least cartel-centric area of law there is. To the contrary, it promotes competition.
I the market really, truly cares about a provision, then a competitor will enter the market and offer the provision, thereby breaking the cartel.
The market forces will assure that overreaching can't happen -- certainly not at the level of large corporate license negotiation. Even where it does happen, nothing in UCITA makes it more or less likely to happen -- self-help provisions can be found in contracts today.
COMPETITION will determine which provisions for software are meaningfully applicable to consumers in relevant markets, just as COMPETITION led to the abandonment of the copy-protection "cartel" in the 80's.
The article proposes, quoting the views of a corporate CIO, that UCITA shifts bargaining power. Yet it does not say how. Yes, UCITA has provisions concerning self-help, but how is this any different than the status quo with respect to a negotiated agreement?
For years, I have found overreaching vendors who seek such provisions in their agreements (or vendors who give notice that their software permits them to engage in self-help in their documentation, without a specific estoppel provision). To permit this is mindloss for the buyer in many cases of course, but might be acceptable in others. It seems to me PRECISELY the sort of thing that can be (and presently is) hashed out in a routine negotiation.
UCITA didn't introduce the practice, and isn't necessary for the practice to exist.
I have negotiated hundreds of license agreements, and have found that the size of a corporation has precious little to do with the "clout" of a negotiation -- the bottom line is typically whether a vendor has meaningful competition for a particular piece of software.
And usually, the deciding factor for terms such as these in a negotiation has more to do with whether there is a competitor with a product at a comparable price. I have found that many clients don't give a hoot about self-help (intending to pay their bills), if it means they can get the software for a few thousand dollars less a year. (In practice, the denial of service frequently provides equivalent clout to internal self-help). In other cases, the client would be nuts to permit self-help before making his initial deposit. Particular factors determine what makes sense, and what does not.
In short, the provision comes up with some frequency in non-UCITA scenarios, and I see no reason why UCITA will or should change the dynamic in any meaningful way for negotiated software licenses.
There are many good reasons to quibble with UCITA (and, BTW, if I were king, I wouldn't have the self-help provisions in it), but this just doesn't seem to be the big deal the article suggests.
On the choice of law issue discussed in the article, I'm not sure what Cem was talking about -- my experience is that courts fairly routinely honor choice of law contract provisions -- indeed, even those specifying choice of law using international traties, such as UNCITRAL's terms, or the law of other countries. However, I'll confess that I haven't researched the question recently, and would love to see some more detailed discussion on these points.
But the issue does raise one important point. There are very few things that cannot be written in or out of a contract. In most U.S. jurisdictions, the limits are basically federal preemption, the implied duty of good faith, and unconcionability. (There are a few others) UCITA, implemented as state law, cannot modify federal preemption, does not modify the duty of good faith, and I don't believe substantially modifies the unconcionability standards. Thus, the only question concerning bargaining clout is the clout the parties had prior to UCITA. I don't see it tilting the balance one way or the other in a negotiated agreement -- at least in the sense that is the subject of the captioned article.
Whoever invents or discovers any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
That's 35 U.S.C. section 101. Section 102 provides more detail on the novelty standard, and Section 103 lays out the unobviousness standard. There are some other provisions, but these are the key ones. The Courts have provided substantial gloss on this, and have added some judge-made limitations on the scope of a patent as well. Among those limitations recently abrogated was the business methods rule and the broad construction of the mathematical algorithms rule.
It is clear that you can't patent an idea in the abstract, but you certainly can patent an implementation of an idea. Two recent cases are well worth reading if you have an interest in this area. One, AT&T v. Excel, dealt with a very simple software solution in telephony involving a straightforward data structure. The Federal Circuit held that it was patentable under Section 101.
There, the Court noted
The Supreme Court has construed 101 broadly, noting that Congress intended statutory subject matter to "include anything under the sun that is made by man." See Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980) (quoting S. Rep. No. 82-1979, at 5 (1952); H.R. Rep. No. 82-1923, at 6 (1952)); see also Diamond v. Diehr, 450 U.S. 175, 182 (1981). Despite this seemingly limitless expanse, the Court has specifically identified three categories of unpatentable subject matter: "laws of nature, natural phenomena, and abstract ideas." See Diehr, 450 U.S. at 185.
As applied to software, the Court noted that
[u]npatentable mathematical algorithms are identifiable by showing they are merely abstract ideas constituting disembodied concepts or truths that are not 'useful.' . . . [T]o be patentable an algorithm must be applied in a 'useful' way." Id. at 1373, 47 USPQ2d at 1601. In that case, the claimed data processing system for implementing a financial management structure satisfied the 101 inquiry because it constituted a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result.'"
The State Street Bank & Trust Co. v. Signature Financial Group, Inc. discusses in some depth the business methods exceptions. These are the key cases, and essential reading for anyone who really wants to understand what is going on today with respect to the patentability subject matter standards.
"Clear and convincing evidence" is a weaker standard in the courts than "beyond reasonable doubt".
C&C is the highest standard of proof for a civil action in the United States.
While the standards are certainly different, and BRD is probably tougher, there is no meaningful practical difference. At the end of the day, the jury couldn't care less what the label is -- this is what the judge will tell them (in an 11th Circuit Patent case -- mileage may vary):
To establish a fact by clear and convincing evidence means to prove something is highly probable and free from serious doubt. To put it differently, clear and convincing evidence must produce in your minds a firm belief or conviction as to the matter sought to be established.
Take any six people off the street (jury pools are scary-dull generally; and any smart ones will be excluded), make them listen to mind-numbing testimony for two weeks, three hours of jury instructions (and the instructions on invalidity are both complex and dull), let them hear an expert on both sides who seem equally intelligent, show them a ribboned deed from the USPTO, and I can assure you what the result is likely to be.
As for Amazon's chances of winning, I hereby volunteer to take the stand and testify to my uses of cookies in Web programming before 1997. I'll give the jury some clear and convincing evidence, all right. They won't be confused.
Good Luck! Naive statements such as the one set above, even as far more articulately put on behalf of B&N, couldn't convince the judge -- why would it convince any jury?
Such evidence wouldn't, by itself, even be relevant to invalidate the patent in suit, which is not directed to a cookie. Moreover, "before 1997" would not suffice to invalidate the patent in suit -- indeed such vagaries is precisely the stuff that creates doubt sufficient to defeat the standard. Testimony, without documentary evidence, is usually insufficient to meet the standard.
The heat here is not in the use of cookies, generally, but in a particular and limited use of a cookie.
Amazon's patent assertions are worthless.
Maybe they are -- I'd like to think so. But certainly nothing posted so far on Slashdot suffices to show that this is the case, even by a preponderance of the evidence, let alone C&C. Moreover, nothing brought before the Judge at the preliminary injunction hearing convinced the Court that such a claim would have any merit whatsoever.
So, here it is -- same challenge I posted earlier. Find MEANINGFUL prior art, and post its citation to the web -- or send it to B&N. Otherwise, I'd advise being somewhat more circumspect about making arrogant and extravagant claims. Amazon, at least, has a case. Denying this, without more, would be futile.
Once this goes to court, there's very little chance it will stand up. Unfortunately, as more of these stupid patents go to court, the courts will require better evidence than they do now, until eventaully patents become worthless.
Er. . . this patent has gone to court, and it has survived so far. Amazon obtained preliminary injunction, despite the arguments of a well-represented Barnes and Noble that the patent was invalid. Now, of course, this is hardly a final adjudication: all the court determined was that there was a substantial likelihood of success on the merits. More needs to be discovered, argued and presented to the Court, but this brings me to my point:
Whatever you might think of patents generally, the invalidity of this patent is not all that clear. While it is politically correct in this forum to savage the USPTO for issuing it, dropping lines like, "a trivial application of cookies," the truth appears far more interesting. It is far more difficult to make a legitimate, legal, argument as to this patent's invalidity.
Preliminary injunction in a patent (as opposed to a copyright or trademark) case, particularly when it stops a major enterprise from continuing business as usual, is quite rare. All a defendant needs to do is introduce evidence of invalidity or unenforceability that defeats plaintiff's claim there is a "substantial likelihood" of winning on the merits. This is the easiest standard B&N will ever face in this matter.
From now on in, B&N must prove invalidity to a jury by clear and convincing evidence, which is the civil law equivalent of "beyond a reasonable doubt." The jury will be told to find for the plaintiff unless they harbor an unwavering, clear and abiding conviction that the patent is invalid. Oh yeah, that will happen.
Not.
This is one of the principal reasons that plaintiffs win over 75% of patent cases that go to trial -- a jury, overwhelmed with reams of legal instructions from the judge and presented with technology it barely groks isn't going to harbor an unwavering, clear and abiding conviction of anything. Ultimately, what they will see is the pretty deed, and the judges instruction that, if they aren't sure, they should find for the plaintiff and go back to their families. But that's only the practical side of it.
It is one thing to say, without more, that the issuing of a patent is bad policy and should not have issued therefor. On that point, I might even find myself in agreement. It is another thing entirely to actually argue that the patent *IS* invalid. B&N was in a position to present their best prior art, and they didn't induce even the slightest doubt in the judge that there was less than a substantial likelihood that the patent was valid. In view of this, how, exactly, are they going to convince a jury that there isn't any doubt that the patent is invalid?
However, I find it hard to swallow that an agreement one finds in a box after having paid for a product constitutes a "contract" under the UCC. I think the "agreement" referred to in the UCC has to be made before the sale.
I can understand that it may be hard to swallow, but it is clearly the law in many jurisdictions, and depending upon the specific circumstances, probably the law in most. It is one thing to say what the law SHOULD be -- it is another, entirely, to say what is the law.
Also, this whole thread started when I disagreed with someone who said that: if the GPL is enforceable, that implies that shrink-wrap licenses are enforceable, and would set a precedent for the validity of shrink-wrap licenses. Since the enforceability of the GPL via a copyright infringement suit is, as you said, not controversial, it has no real bearing on the enforceability of shrink-wrap licenses, and is certainly not precedent setting. In contrast, the enforceability of shrink-wrap licenses varies among jurisdictions.
There is substantial precedent already for both propositions. ProCD with respect to shrinkwraps, Duke Nukem (and the text of the Copyright Act) with respect to the other matter. I would expect a prospective Plaintiff to assert --at least-- both theories, so it is possible for there to be some decisional law on both subjects.
However, this will never get that far. I anticipate that Id Software, if it acts promptly, should be able to obtain ex parte injunctive relief against non-compliant distribution, serve the complaint, and obtain a P.I. without resistance.
Then, we shall see whether Slashdotters approve of massive copying and redistribution of those binaries, in the name of liberty, among the could-care-less-about-GPL-I-want-to-play-Quake community -- notwithstanding Court Orders to the contrary.
In conclusion, under normal copyright law, the theory that agreements are not binding unless signed is compatible with both the validity of the GPL and the invalidity of shrink-wrap licenses. This is not having things two ways: the asymmetry exists because the GPL gives you additional rights, while shrink-wrap takes away rights. You don't need to sign an agreement for someone to grant you additional rights, but you do need to sign something to waive your existing rights.
I agree with the author of the previous message that failing to enter into the GPL does not mean that a recipient is free to use or distribute the software. The Copyright owner could then sue for infringement for unlicensed reproduction and distribution. This particular question --to the extent it has ever been controversial (it hasn't)-- was well-settled as a matter of law in the Duke Nukem case.
However, the author also appears to be under the misapprehension that a contract that has not been signed is unenforceable therefor. This is not the law.
Only certain kinds of agreements require a signature as a condition of enforceability. For example, contracts concerning the sale of real estate or goods with a price in excess of $500 require a signature in most states under the Statute of Frauds or the UCC. The Copyright Act requires that an assignment of copyright or an exclusive license shall be the subject of a signed writing.
There are other examples of contracts and instruments requiring a signature, but none appear to be relevant here. Even when there is a signature requirement, there are exceptions to the SOF that will permit enforceability in many cases.
Further, many things constitute a legal signature that do not appear to be a signature. Depending on the jurisdiction and circumstances, initials at the end of an e-mail, or an "x" on a piece of toilet paper, for example, would constitute a legally binding signature.
Most contracts and instruments are enforceable without a signature, provided the essential elements of a contract are present: offer, acceptance and either consideration or a substitute for consideration. The legal issue with respect to shrink-wrap agreements is not one of signature, but assent. Again, depending upon the circumstances, many license agreements can be entered into with a handshake, a computer click, or the breaking of a shrinkwrap.
The presumption that shrink-wraps are unenforceable merely because they are shrink wraps is, at best, naive. Your mileage may vary. In some jurisdictions, the proposition may be more debatable than others, and in other jurisdictions, the question has been well-settled in favor of enforceability. In any case, it would be very dangerous, regardless of jurisdiction, to presume that a shrink-wrap is unenforceable in any particular circumstance without first consulting competent counsel.
As if only to prove the point for us, that censorship once begun is necessarily indiscriminate, the codebreaker URL has itself been seized upon by various "net-nannies" as the subject of censorship.
Slashdot itself may soon be censored, after all, for harboring open discussion of the propriety of censorship, or the reverse engineering of censor listings. Such censorship censorship is useful for censors who would avoid review of the "quality" of their censorship.
At any rate, I am sad to report that, at least, our Novell BorderManager improvidently censors the link. Are there others?
I think a fair argument can be made that "many years" is an exaggeration. I agree there will be some lag, but the virtue of clamming spam will get people motivated, IMHO. That is certainly the feedback I have gotten on e-mail backchannels.
I noted that it wouldn't stop the spam -- it would just deprive those who spam of any incentive to do so. I belive that should be enough. Indeed, none of the other legislation does any better -- it just unconstitutionally requires marking, instead of constitutionally punishing false marking.
On the client issue, its a non-problem, imho. Your decision to continue using an ancient mail client is wholly within your purview, as is mine to receive your mail in my main box (as opposed to setting it aside for spam review). If I care to receive your mail, I'll just positively adjust my spam filter to take you in, but guys like you will likely be in the minority.
I don't mind the idea of adding a tag describing the kind of relationship by which you are excluding numbers from the count, just so long as I get to filter out those I don't want.
Thus, one person might decide to pretend they aren't multicasting by not counting non-opt-outers. That would be fine, just so long as their e-mail said so.
To my taste, the only acceptable spam is that which I have affirmatively asked for. All other e-mail that is multicast cannot pretend to be non-multicast, IMHO. The neat thing about the proposal, is that various versions can be adapted with a single RFC, and each user can decide for herself how liberal to be in receiving spam.
Slashdot Mirror
Cool idea, but its probably losing.
It would cost about $400.00 per application. Probably too expensive to effectively flood things. Also, each application must be accompanied by an oath sworn under threat of perjury that the applicant is the inventor. Thus, a fair amount of original thought and effort needs to go into each application, or the Solicitor might start fighting back with threats of criminal action.
The letter of this clause should invalidate patents when prior art can be demonstrated. To the extent that that does not happen, the intent "To promote the Progress of Science and useful Arts" is violated.
I don't disagree with this proposition as a "shoulda'" argument. See my proposal for patent reform based upon the presumption of validity when a defendant raises new art not considered by an examiner.
That being said, the Constitutional argument is hopeless. On Article I, Section 8 cases, courts defer so long as Congress can proffer a "rational basis" for the statute's constitutionality. Further, even if the bill were unauthorized by the Patent and Copyright Clause, Congress can always rely on the Commerce Clause (also in Article I, Section 8), which grants plenary rights to regulate interstate commerce.
However, soundbites like the one in the teaser for this article, can really misstate the situation. An application may run to hundreds of pages. Maybe most are only 10! Does anyone know the average? Patent Office employees get 8 hours to process, review, and approve a patent application. I bet you'd get really good at it after the first few thousand. I've seen bio papers peer reviewed in about that time.
The vast majority of patents are under 10 pages printed (including drawing sheets). Typically this is approximately 15-25 pages of double-spaced text. The 8 hours is an average figure, while the multi-hundred page application is an extraordinary case. Most ultra-long applications comprise repetive claim structures, claiming the same invention in ten or so different ways.
In short, he exaggerates ridiculously.
If I were to propose a fix for what's broken with the patent system, it would go something like: (1) Only legitimate innovation is patentable. Patent inspectors have to either deny a patent, or produce (and attach to the patent) a written description of why the patent is valid
In view of recent case law, examiners must now write up reasons for allowance to accompany a notice of allowability.
. . . is that they get just as much credit for a final rejection as for a second action allowance. And, they don't risk getting downgraded for poor allowances on quality reviews.
. . . an examiner gets the same credit for a final rejection that he gets for an allowance. And during quality reviews, gets seriously dunned for poor allowances.
Open source inventors are especially vulnerable, because participating in the patent process in any way will cost you six or seven figures, which open source developers rarely have.
This guy is writing from the "making it up as he goes" department. The truth is far more interesting.
Unless you are counting in Yen, the answer is never -- not in any jurisdiction. A patent application (including search and opinion) typically costs between $2,500 and $15,000 depending upon the art and the lawyer drafting the app. In an extraordinary case (or genetics-related invention), perhaps as much as $25,000. Now that's steep bread indeed, but this guy clearly has never priced or paid for a patent in his life.
It has never been the case that an average examination was less than seven or eight hours. Never. For an examination fee of a few hundred bucks, the most that can be hoped for is what is called in the trade a "novelty" or "patentability" search (as opposed to a validity search). In most art areas, this is reasonably adequate.
A validity search typically requires far more resources, on the order of $10K-$50K or more. In litigation scenarios, a six figure search bill is not suprisingly uncommon. Since the corpus of prior art is virtually infinite in scope, one can spend as much as you want and still not have considered all the relevant art.
Congress made a determination to balance the quality of a patent search against the cost of access to the patent system. And for most art areas, this balancing is adequate.
Now as to the rhetoric. While an average eight hours are spent on examination, this does not mean that eight hours only will be spent on a multi-hundred page document. The number of huge applications are a small fraction, and even for large applications (at least in the software arts), they are large because of the multiplicity of claims (most of which are similar, and the patterns to which are obvious) filed as a result of recent case law. His remark that they are highly technical ignores that examiners only review applications in their particular area of expertise.
In short, it is perhaps most polite simply to note that Bryar was using his statistics improvidently.
Now, that being said, I for one acknowledge and agree that a novelty search is inadequate for certain art areas, in particular the software arts and methods of doing business. Too many patents are issuing when the best art had not been considered.
The real harm from this is that once the stamp is impressed on the deed, the claims are cloaked in a virtually impossible to overcome presumption of validity, even when killer art is available. The jury is instructed that unless "clear and convincing evidence" of invalidity is offered, they must find for the plaintiff. In practice, juries always find some doubt, and find the patent valid.
This is wrong and unjust, particularly when a defendant raised art that: (i) was not considered by the examiner; and (ii) which raises a substantial new question of patentability.
I have a proposal for legislation presently being considered in various fora, which I think may adequately strike more fairly the balance between keeping the scope and costs of examination in check, while protecting the marketplace. For prior art that fits the preceding two criteria, reduce the standard of evidence to that of a mere preponderance of the evidence. If the art is new, let the court consider it without enhanced evidentiary requirements, and thus let the plaintiff go to court at his or her own risk.
For more detail on the proposed reforms, check out this memorandum.
For an excellent on-line collection of relevant international documents and statutes relating to space law, check out the Archimedes web site. A survey of applicable treaties can be found at the Space web site.
An article on the point raised in the note is: "Emerging law of outer space - the analogy of maritime salvage" / Almond, Harry H., Jr. / 19 J. OF SPACELAW #1, 1991, P67. You should be able to find this in most law school libraries.
The problem with the salvage analogy is that there is at present no legal mechanism for a nation to absolve its responsibility for objects placed into outer space. There doesn't really seem to be legal recognition of abandoned property in space. I understand that the prohibitions against military operations in the Outer Space Treaty have been argued to preclude private salvage as well. This is not to say that salvage is prohibited, only that interest in any property rights to the salvage estate are unclear.
Though I practice intellectual property law, these remarks should be considered coming from a lay person -- I have absolutely no real clue what is going on in these space law/admiralty issues beyond a rudimentary understanding of the Space Patent Act.
Design patents protect only the ornamental features of an apparatus. It is a defense to a design patent claim that the scope of the patent embraces utilitarian features. The article incorrectly suggests that patents for a design are not subject to examination -- the design must be novel, original and ornamental, and this includes the unobviousness standard set forth in Section 103 of the Patent Act. 35 U.S.C. s. 171.
Trade dress and product configuration protection under the Lanham Act and common law of most states is not new by any means. The configuration, for example, of the Fantastic spray-bottle was the subject of a landmark case decades ago. A Supreme Court case addressing trade dress, Two Pesos v. Taco Cabana, made clear that designs would be treated under the trademark act just as names, logos and other configurations. The Supreme Court is presently revisiting that very question to flesh out this issue.
As with design patents, it is an absolute defense to a claim of unfair competition or trademark infringement that a design is functional.
The issue under all these theories (simplifying to some extent) is whether the consumers would be confused as to the source or origin of the respective products. With design patents, the analysis is similar.
It is highly unlikely that transparent computers would infringe per se, even taking the broadest view of these applicable laws. The question is whether the design is distinctive, embodies substantial good will, and whether the defendant has tried to usurp that good will by its conduct.
While these oversimplifications of the law are not entirely accurate, it does fairly characterize the applicable standards. As you can see, Apple had a case. Perhaps the defendants also had a case. That is what the courts are all about. The law in this area is sound, designed to protect the marketplace for free and fair competition, the consumer as well as the intellectual property owner.
Yes, it is possible to wildly overreach in this arena, as with any other claim at law. This doesn't appear to be such a case.
I believe that the greatest difficult with the patent system is not so much the assertion of valid patents, but the risk of bullying with patents that are invalid. Particularly in the software arts, it has become increasingly common for a patent to issue in the face of substantially invalidating prior art that not considered by the examiner.
The difficulty is that even with invalidating art in hand, the standard of proof by "clear and convincing evidence," is virtually impossible to meet in practice before a jury. Given the complexity of the law alone, and informed that if they waver in any sense as to their convictions, they must find for the plaintiff, your average juror will invariably find the patent valid, regardless of the facts of any particular case.
This makes it practically impossible for a small or mid-sized business to defend a case based upon prior art invalidity, and commercially infeasible for a well-heeled company to do so, unless the subject matter is core or critical to its business.
My suggestion is that when invalidating prior art was not considered by the PTO, and raises a substantial new question of patentability, then the clear and convincing standard be relaxed to the more common "preponderance of the evidence" standard. In all other cases, the present "clear and convincing" standard would apply.
This would continue to protect sound patents. However, when new and invalidating prior art raising issues not considered during examination is found, the art will raise a significant and meaningful deterrent against the bullying practices that have now become so common in the industry.
A Barnes and Nobles or an Amazon can realistically expect to see a case through its appeal. A small or mid-sized business may barely be able to afford to bring a case through trial. This proposal makes it possible to obtain a just result when bad patents are asserted, while continuing to provide proper protections for patentees asserting sound patents.
While it is common to complain that the law has, somehow, fallen way behind technology, modern experience has shown that, even granting the proposition, the Congress has manifest even less understanding as it undertakes to "update the law."
IP law, at least, is rooted in clearly understood public policy recognizing the conflict between granting a monopoly to provide incentive for authors/inventors and the engines of commerce necessary to provide incentive for the delivery of that technology and further innovation. Adjudication of IP laws in view of those policies leads, according to we Strong IP guys, to a sound foundation for evolution and growth of a technology based economy.
Common law adjudication, as opposed to passage of new law, works well in this regard. Left to itself, the cases and the law tends to converge to reasonable compromises between these issues. The development of Copyright infringement law regarding software is a glowing tribute to the success of policy-based common-law adjudication.
However, as Congress adopts its "updates," it seems to have lost track of the carefully negotiated balance of concerns, and is simply allowing power grabs to the most monied and obvious constitutencies. Thus, we have wholly unbalanced revisions of the law: trademark dilution; copyright technology circumvention and worse.
While I am known to be one of the stronger voices favoring Strong IP in these letters, I fervently oppose the DMCA, which I believe is not "Strong IP," but rather a new kinds of property right. Circumvention law gives unliminted-term de-facto patent protection for unpatentable and un-novel inventions. Dilution gives rights in gross to words stolen from the English language. None of these things has anything to do with the careful balancing of concerns that we Strong IP use as the foundation of our arguments.
My point is that DMCA doesn't protect IP. It protects some new kind of special interest entitlement, unrelated to the subtle balancings that are the cornerstone of IP.
Accordingly, notwithstanding my Strong IP stance, I join the voices of despair assailing DMCA and its ilk. It is time to change the trend of mindless power-grabs, and to make the Congress accountable -- before they actually *DO* destroy America's competitiveness.
I would tend to agree with Eric. It is common to see language incorporating international treaties or provisions, such as INCOTERMS, or the law of "third party" nations, particularly in international transactions. As understood, it is fairly routine to enforce such provisions.
I'm really not sure what uncertainty about this point Cem Kaner's remarks, cited in the article, was addressing. Cem?
What makes you think these provisions can't occur without UCITA? That is the thing about contract law -- its private laws, and two parties can enter into just about any deal they want. The trick is not to buy from idiots who offer only provisions you can't stand.
If the market really, truly cares about the provision, they'll soon be out of business. If the market doesn't care, then, you're just whining about the results of free enterprise.
In any case UCITA isn't necessary for these things to happen, and it won't be sufficient to make them happen.
How can you know that your vendor isn't setting you up for UCITA extortion later?
Easy. RTFC.
Please identify the cartel provision? Of course there isn't one. UCITA is just contract law, for gosh sake, and contracts is the least cartel-centric area of law there is. To the contrary, it promotes competition.
I the market really, truly cares about a provision, then a competitor will enter the market and offer the provision, thereby breaking the cartel.
The market forces will assure that overreaching can't happen -- certainly not at the level of large corporate license negotiation. Even where it does happen, nothing in UCITA makes it more or less likely to happen -- self-help provisions can be found in contracts today.
COMPETITION will determine which provisions for software are meaningfully applicable to consumers in relevant markets, just as COMPETITION led to the abandonment of the copy-protection "cartel" in the 80's.
The article proposes, quoting the views of a corporate CIO, that UCITA shifts bargaining power. Yet it does not say how. Yes, UCITA has provisions concerning self-help, but how is this any different than the status quo with respect to a negotiated agreement?
For years, I have found overreaching vendors who seek such provisions in their agreements (or vendors who give notice that their software permits them to engage in self-help in their documentation, without a specific estoppel provision). To permit this is mindloss for the buyer in many cases of course, but might be acceptable in others. It seems to me PRECISELY the sort of thing that can be (and presently is) hashed out in a routine negotiation.
UCITA didn't introduce the practice, and isn't necessary for the practice to exist.
I have negotiated hundreds of license agreements, and have found that the size of a corporation has precious little to do with the "clout" of a negotiation -- the bottom line is typically whether a vendor has meaningful competition for a particular piece of software.
And usually, the deciding factor for terms such as these in a negotiation has more to do with whether there is a competitor with a product at a comparable price. I have found that many clients don't give a hoot about self-help (intending to pay their bills), if it means they can get the software for a few thousand dollars less a year. (In practice, the denial of service frequently provides equivalent clout to internal self-help).
In other cases, the client would be nuts to permit self-help before making his initial deposit. Particular factors determine what makes sense, and what does not.
In short, the provision comes up with some frequency in non-UCITA scenarios, and I see no reason why UCITA will or should change the dynamic in any meaningful way for negotiated software licenses.
There are many good reasons to quibble with UCITA (and, BTW, if I were king, I wouldn't have the self-help provisions in it), but this just doesn't seem to be the big deal the article suggests.
On the choice of law issue discussed in the article, I'm not sure what Cem was talking about -- my experience is that courts fairly routinely honor choice of law contract provisions -- indeed, even those specifying choice of law using international traties, such as UNCITRAL's terms, or the law of other countries. However, I'll confess that I haven't researched the question recently, and would love to see some more detailed discussion on these points.
But the issue does raise one important point. There are very few things that cannot be written in or out of a contract. In most U.S. jurisdictions, the limits are basically federal preemption, the implied duty of good faith, and unconcionability. (There are a few others) UCITA, implemented as state law, cannot modify federal preemption, does not modify the duty of good faith, and I don't believe substantially modifies the unconcionability standards. Thus, the only question concerning bargaining clout is the clout the parties had prior to UCITA. I don't see it tilting the balance one way or the other in a negotiated agreement -- at least in the sense that is the subject of the captioned article.
That's 35 U.S.C. section 101. Section 102 provides more detail on the novelty standard, and Section 103 lays out the unobviousness standard. There are some other provisions, but these are the key ones. The Courts have provided substantial gloss on this, and have added some judge-made limitations on the scope of a patent as well. Among those limitations recently abrogated was the business methods rule and the broad construction of the mathematical algorithms rule.
It is clear that you can't patent an idea in the abstract, but you certainly can patent an implementation of an idea. Two recent cases are well worth reading if you have an interest in this area. One, AT&T v. Excel , dealt with a very simple software solution in telephony involving a straightforward data structure. The Federal Circuit held that it was patentable under Section 101.
There, the Court noted
As applied to software, the Court noted that
The State Street Bank & Trust Co. v. Signature Financial Group, Inc. discusses in some depth the business methods exceptions. These are the key cases, and essential reading for anyone who really wants to understand what is going on today with respect to the patentability subject matter standards.
C&C is the highest standard of proof for a civil action in the United States.
While the standards are certainly different, and BRD is probably tougher, there is no meaningful practical difference. At the end of the day, the jury couldn't care less what the label is -- this is what the judge will tell them (in an 11th Circuit Patent case -- mileage may vary):
Take any six people off the street (jury pools are scary-dull generally; and any smart ones will be excluded), make them listen to mind-numbing testimony for two weeks, three hours of jury instructions (and the instructions on invalidity are both complex and dull), let them hear an expert on both sides who seem equally intelligent, show them a ribboned deed from the USPTO, and I can assure you what the result is likely to be.
As for Amazon's chances of winning, I hereby volunteer to take the stand and testify to my uses of cookies in Web programming before 1997. I'll give the jury some clear and convincing evidence, all right. They won't be confused.
Good Luck! Naive statements such as the one set above, even as far more articulately put on behalf of B&N, couldn't convince the judge -- why would it convince any jury?
Such evidence wouldn't, by itself, even be relevant to invalidate the patent in suit, which is not directed to a cookie. Moreover, "before 1997" would not suffice to invalidate the patent in suit -- indeed such vagaries is precisely the stuff that creates doubt sufficient to defeat the standard. Testimony, without documentary evidence, is usually insufficient to meet the standard.
The heat here is not in the use of cookies, generally, but in a particular and limited use of a cookie.
Amazon's patent assertions are worthless.
Maybe they are -- I'd like to think so. But certainly nothing posted so far on Slashdot suffices to show that this is the case, even by a preponderance of the evidence, let alone C&C. Moreover, nothing brought before the Judge at the preliminary injunction hearing convinced the Court that such a claim would have any merit whatsoever.
So, here it is -- same challenge I posted earlier. Find MEANINGFUL prior art, and post its citation to the web -- or send it to B&N. Otherwise, I'd advise being somewhat more circumspect about making arrogant and extravagant claims. Amazon, at least, has a case. Denying this, without more, would be futile.
Once this goes to court, there's very little chance it will stand up. Unfortunately, as more of these stupid patents go to court, the courts will require better evidence than they do now, until eventaully patents become worthless.
Er. . . this patent has gone to court, and it has survived so far. Amazon obtained preliminary injunction, despite the arguments of a well-represented Barnes and Noble that the patent was invalid. Now, of course, this is hardly a final adjudication: all the court determined was that there was a substantial likelihood of success on the merits. More needs to be discovered, argued and presented to the Court, but this brings me to my point:
Whatever you might think of patents generally, the invalidity of this patent is not all that clear. While it is politically correct in this forum to savage the USPTO for issuing it, dropping lines like, "a trivial application of cookies," the truth appears far more interesting. It is far more difficult to make a legitimate, legal, argument as to this patent's invalidity.
Preliminary injunction in a patent (as opposed to a copyright or trademark) case, particularly when it stops a major enterprise from continuing business as usual, is quite rare. All a defendant needs to do is introduce evidence of invalidity or unenforceability that defeats plaintiff's claim there is a "substantial likelihood" of winning on the merits. This is the easiest standard B&N will ever face in this matter.
From now on in, B&N must prove invalidity to a jury by clear and convincing evidence, which is the civil law equivalent of "beyond a reasonable doubt." The jury will be told to find for the plaintiff unless they harbor an unwavering, clear and abiding conviction that the patent is invalid. Oh yeah, that will happen.
Not.
This is one of the principal reasons that plaintiffs win over 75% of patent cases that go to trial -- a jury, overwhelmed with reams of legal instructions from the judge and presented with technology it barely groks isn't going to harbor an unwavering, clear and abiding conviction of anything. Ultimately, what they will see is the pretty deed, and the judges instruction that, if they aren't sure, they should find for the plaintiff and go back to their families. But that's only the practical side of it.
It is one thing to say, without more, that the issuing of a patent is bad policy and should not have issued therefor. On that point, I might even find myself in agreement. It is another thing entirely to actually argue that the patent *IS* invalid. B&N was in a position to present their best prior art, and they didn't induce even the slightest doubt in the judge that there was less than a substantial likelihood that the patent was valid. In view of this, how, exactly, are they going to convince a jury that there isn't any doubt that the patent is invalid?
However, I find it hard to swallow that an agreement one finds in a box after having paid for a product constitutes a "contract" under the UCC. I think the "agreement" referred to in the UCC has to be made before the sale.
I can understand that it may be hard to swallow, but it is clearly the law in many jurisdictions, and depending upon the specific circumstances, probably the law in most. It is one thing to say what the law SHOULD be -- it is another, entirely, to say what is the law.
Also, this whole thread started when I disagreed with someone who said that: if the GPL is enforceable, that implies that shrink-wrap licenses are enforceable, and would set a precedent for the validity of shrink-wrap licenses. Since the enforceability of the GPL via a copyright infringement suit is, as you said, not controversial, it has no real bearing on the enforceability of shrink-wrap licenses, and is certainly not precedent setting. In contrast, the enforceability of shrink-wrap licenses varies among jurisdictions.
There is substantial precedent already for both propositions. ProCD with respect to shrinkwraps, Duke Nukem (and the text of the Copyright Act) with respect to the other matter. I would expect a prospective Plaintiff to assert --at least-- both theories, so it is possible for there to be some decisional law on both subjects.
However, this will never get that far. I anticipate that Id Software, if it acts promptly, should be able to obtain ex parte injunctive relief against non-compliant distribution, serve the complaint, and obtain a P.I. without resistance.
Then, we shall see whether Slashdotters approve of massive copying and redistribution of those binaries, in the name of liberty, among the could-care-less-about-GPL-I-want-to-play-Quake community -- notwithstanding Court Orders to the contrary.
In conclusion, under normal copyright law, the theory that agreements are not binding unless signed is compatible with both the validity of the GPL and the invalidity of shrink-wrap licenses. This is not having things two ways: the asymmetry exists because the GPL gives you additional rights, while shrink-wrap takes away rights. You don't need to sign an agreement for someone to grant you additional rights, but you do need to sign something to waive your existing rights.
I agree with the author of the previous message that failing to enter into the GPL does not mean that a recipient is free to use or distribute the software. The Copyright owner could then sue for infringement for unlicensed reproduction and distribution. This particular question --to the extent it has ever been controversial (it hasn't)-- was well-settled as a matter of law in the Duke Nukem case.
However, the author also appears to be under the misapprehension that a contract that has not been signed is unenforceable therefor. This is not the law.
Only certain kinds of agreements require a signature as a condition of enforceability. For example, contracts concerning the sale of real estate or goods with a price in excess of $500 require a signature in most states under the Statute of Frauds or the UCC. The Copyright Act requires that an assignment of copyright or an exclusive license shall be the subject of a signed writing.
There are other examples of contracts and instruments requiring a signature, but none appear to be relevant here. Even when there is a signature requirement, there are exceptions to the SOF that will permit enforceability in many cases.
Further, many things constitute a legal signature that do not appear to be a signature. Depending on the jurisdiction and circumstances, initials at the end of an e-mail, or an "x" on a piece of toilet paper, for example, would constitute a legally binding signature.
Most contracts and instruments are enforceable without a signature, provided the essential elements of a contract are present: offer, acceptance and either consideration or a substitute for consideration. The legal issue with respect to shrink-wrap agreements is not one of signature, but assent. Again, depending upon the circumstances, many license agreements can be entered into with a handshake, a computer click, or the breaking of a shrinkwrap.
The presumption that shrink-wraps are unenforceable merely because they are shrink wraps is, at best, naive. Your mileage may vary. In some jurisdictions, the proposition may be more debatable than others, and in other jurisdictions, the question has been well-settled in favor of enforceability. In any case, it would be very dangerous, regardless of jurisdiction, to presume that a shrink-wrap is unenforceable in any particular circumstance without first consulting competent counsel.
As if only to prove the point for us, that censorship once begun is necessarily indiscriminate, the codebreaker URL has itself been seized upon by various "net-nannies" as the subject of censorship.
Slashdot itself may soon be censored, after all, for harboring open discussion of the propriety of censorship, or the reverse engineering of censor listings. Such censorship censorship is useful for censors who would avoid review of the "quality" of their censorship.
At any rate, I am sad to report that, at least, our Novell BorderManager improvidently censors the link. Are there others?
I think a fair argument can be made that "many years" is an exaggeration. I agree there will be some lag, but the virtue of clamming spam will get people motivated, IMHO. That is certainly the feedback I have gotten on e-mail backchannels.
I noted that it wouldn't stop the spam -- it would just deprive those who spam of any incentive to do so. I belive that should be enough. Indeed, none of the other legislation does any better -- it just unconstitutionally requires marking, instead of constitutionally punishing false marking.
On the client issue, its a non-problem, imho. Your decision to continue using an ancient mail client is wholly within your purview, as is mine to receive your mail in my main box (as opposed to setting it aside for spam review). If I care to receive your mail, I'll just positively adjust my spam filter to take you in, but guys like you will likely be in the minority.
I don't mind the idea of adding a tag describing the kind of relationship by which you are excluding numbers from the count, just so long as I get to filter out those I don't want.
Thus, one person might decide to pretend they aren't multicasting by not counting non-opt-outers. That would be fine, just so long as their e-mail said so.
To my taste, the only acceptable spam is that which I have affirmatively asked for. All other e-mail that is multicast cannot pretend to be non-multicast, IMHO. The neat thing about the proposal, is that various versions can be adapted with a single RFC, and each user can decide for herself how liberal to be in receiving spam.
I do like the bounce-idea a lot.