Although this is not what you want to hear, there really is only one meaningful answer to this question. Get ready!
In other words, talk to a full-blooded lawyer about the question before you release. Have materials and papers ready, being ready to ambush the ambushers with motions and declarations before the ex parte and rush TRO hearings. Have all your ducks in a row, to the extent you do have a legal defense, and make certain that you don't overstep or lose on a technical glitch.
The only way to do this right is to have a lawyer, whom you have retained for your particular problems. If money is an issue, you may have to find someone willing to do it pro bono, which may be possible if the cause is worthy. This may require some shopping, and I'd be pleased to help guide you to finding such a person working in your jurisdiction.
But do this ALL UP FRONT, with a clear sense of what you are doing and why you are doing it. In a recent thread, slashdotters lambasted the legal system for moving too quickly. Count on it to move quickly, too quickly, once you release. In the meanwhile -- YOU CONTROL -- when that happens. So be ready for the deluge, before it descends upon you.
Although its not what you want to hear, the only way to be ready, legally speaking, is to be ready, legally speaking.
Several posts thus far have accused the Congress of being "brain-dead" or "ignorant" of technological issues. While the conclusion may be true, this bill is not evidence therefor. Indeed, far to the contrary, this bill is an extraordinary step: Congress is getting government OUT OF THE WAY of technologists and the marketplace.
To the contrary, these postings manifest a lack of understanding of the *legal* purpose and effect of a signature (which is all that the bill addresses). One post stated:
Signing a document has two purposes:
* authenticity * non-repudability
However true this might be for practical uses of signatures, the signing of a document for legal purposes has nothing whatsoever to do with either "feature," as they appear to be understood here. ("Authentication" doesn't mean what I think he thinks it means.) Indeed, nothing about paper-on-ink signatures, which are trivially forged and transferred from one document to another, provides either of the cited functions.
And it is certainly true that a panel of computer lawyers at the ABA (and the state of Utah) felt that a set of express standards for signatures by electronic means to assure authentication of and non-repudiability by the signer. On the other hand, the clear trend today in state legislatures is instead to adopt more minimalist bills, such as the one that passed the House, that simply assure that electronic instruments are treated no more or less formally as paper writings. Here's why:
In almost all of the United States, we still have a body of law entitled the "Statute of Frauds," which provides that certain types of agreements (e.g., sale of goods > $500, transfer of real estate) are unenforceable unless a "sufficient memorandum" is signed by the party against whom enforcement is sought. Other laws likewise require formalities for certain documents, such as deeds, wills, assignments of certain kinds of intangible property and the like be signed by certain parties.
Here, the purpose of these laws is, supposedly, to avoid swearing matches by giving the world an incentive to make physical, tangible manifestations of the subject matter of the agreement. But the effect of the law is that a market participant, even though he had agreed in full to a contract and even if he fully intended at the time to go through with it, may actually avoid its enforcement later on the purely technical ground that there exists no writing signed by him.
Interestingly, except for certain instruments, the tangible manifestation is not as important as the fact that it was made: you could enforce a document with credible testimony that a signed writing existed in the past. In any case, it is that manufacture of that manifestation that is important for legal policy.
The signature itself, for legal purposes, does not serve to authenticate who was the document's signer, or to avoid repudiation: it is merely to authenticate the document as the one agreed to by the parties -- to distinguish, for example, a draft from the "real thing." The legal technicalities of signature are few. The following have all been found to be valid:
- printing an "X" - making a scratch on the paper - shaving a name on the side of a cow - writing someone else's name - typing your name - asking Western Union to type your name
which of course does nothing to identify the signer or to assure non-repudiation. Nor does the common law require that document to be signed, if the signature is placed on another instrument (or bovine mammal) in such manner as to manifest intent to authenticate that document. Papers have been written with bizarre examples of what constitutes a signature. Under the UCC, a signature is any fixed tangible manifestation of an intent to authenticate the document.
On the other hand, when I am attending the closing a zillion dollar sale of a chain of hotels, and the principal of the seller walks up to one of the documents, notes that he heard he could sign "Minnie Mouse" or scrawl an "X," on another piece of paper, I politely ask him (if he is not illiterate) to write his name in cursive on the contract itself. If he refused, I'd advise my client to consider putting off the closing.
Why? Because while these methods of signature are legally sufficient if *he* in fact *intended* to sign, I might still someday need to use these documents to evidence those facts. The legal sufficiency of a document is an entirely different thing from the practical security that sometime, someday, he might change his mind and "misremember" why he signed "Minnie Mouse," or marked only a vertical line or "X." (Remember, it is all about the manifestation of an intent to authenticate.)
On the other hand, for less signficant transactions, we hardly care one way or the other whether or not we can prove or disprove *WHO* signed the document or why -- we just want there to exist barely minimal legally sufficient documents to avoid a technical defense based upon the Statute of Frauds.
Its all about Eggs in Baskets. The realities of the marketplace determine what "technologies" for signature an individual will use, and what "informal," but legally sufficient signatures will be accepted. Each buyer and seller will decide for himself and herself what to require of the other.
Many valid signatures are commercially unacceptable for those reasons. On the other hand, while this is a non-problem, the concern is that a commercially acceptable signature might be held to be invalid! The law serves only to provide the minimum requirements for a signature to be valid (as opposed to "commercially acceptable.") The marketplace determined what technologies they will use and accept.
Which brings us to the ESA. Assymetric encryption now provides (under certain circumstances) greater security to prove authenticity, which is an excellent reason to use electronic signatures in lieu of "traditional" technology, particularly for on-line transactions. On the other hand, it is not for the law to determine what technology should be used -- the law should only undertake to assure that a sig is valid and leave it to you and me to decide what we will accept.
The mind-loss would be to adopt some 50 plus pages of specification as to what is and what is not a valid signature and providing an entire new kind of litigation on the formalities of a contract. "Sorry, you don't get to keep the house, your certification authority's license expired the day beforehand." Such technical defenses would be brain-loss at best.
Whether a vendor should accept the following e-mail:
"I will buy five million widgets at $25,000 apiece, 2%/10 net 30. love andy"
is entirely up to him. Whether a court will enforce these price terms if Andy admits he sent it, on the other hand, is another issue entirely. On the other hand, if commercial exigencies make it practical and financially more efficient to permit that exchange by e-mail, the law should not get in the way.
As an aside, it is almost certainly the case that the foregoing e-mail would satisfy the Statute of Frauds. Its just that in the absence of case law, a market participant can't be assured that it is. We abundance-of-caution-types would stick to pen-to-paper, even if it cost a bit more and took a bit longer, because we KNOW that the courts will accept that. It is for these people that this law exists -- to give them some comfort concerning what is almost certainly the law today -- there will be no technical defense to enforcing an agreement on the ground that the agreement was signed in electronic form. It is up to the market participants to determine if the mode of signature used gives them enough comfort that they will be able to prove that the document was in fact signed by the other party.
Hat's off to a Congress that showed, in this case, a far greater savvy about electronic signatures than the ABA and many technologists. ESA does precisely what it is supposed to do, make crystal clear that a technical defense on the ground that an electronic document is not a "writing," and that a typed signature is not a "signature," while leaving it to the marketplace to decide what signature technology they will prefer to use.
The best --indeed the only-- remedy, for bad speech is more speech. To permit government to make sanctions on any person for expressing their ideas is simply to cede away the most fundamental of human rights.
The ideas of facism, particularly, pose no meaningful threat -- the bigoted nonsense espoused by modern neo-nazis, transparently false in its own right, is highly inconsistent and easily disproved on its face.
Whether there is such a thing as a "dangerous" idea, neo-nazism is not one of them -- truth is likley to prevail unless we permit the surrender of freedom and free speech, and a neo-nazi propagandist takes control thereafter. Only by stunting the marketplace of ideas can such ideas become meaningful threats to society.
It is not these ideas of these idiots that threatens civil society, it is these proposed solutions that would deprive me of my freedoms.
Anything that expands the job market of lawyers and patent law helps you and your firm. For if your competition is doing opensource-patent-stuff, then your firm has clients they would not serve.
Trolling for work on slashdot isn't a good use of time. And you seem brighter than that.
The continued ad hominem nature of these remarks are extraordinarily offensive and non-responsive on the merits.
That you find the patent system an anathema, and disregard my substantive arguments out of hand therefor, is neither argument nor justification. That you place me in a "box" as a lawyer manifests one of the fundamental errors of the ad hominem attack -- you don't have a clue who I am, what I know, and what is my perspective.
The hole-in-the-ground "solution" suggesting that legal should be avoided is naive and may, someday, to destroy some important and useful project. There are a raft of exceptional attorneys (myself included) who routinely dedicate hundreds of hours per year to pro bono activities worthy of their attention. The only excuse not to consider these issues is to concede that the cause is unworthy. Not me, not me.
Fear not, friends, I shall not reply again to this thread unless it in fact returns to the merits. This discussion presented here has, regrettably, turned unworthy. I leave the field gladly in deference to my lawyer-bashing acquaintance.
(. . . I wanted to establish what you more-or-less did for a living.)
Yeah, right, like there is a/. denizen anywhere who didn't know I am a lawyer. (Too bad for him that he doesn't know what else I do.)
Say, arn't you a patent attorney? Looks like your idea is a way to get more work for yourself.
Then I'm sure all of my remarks should be discounted as mere attempts and misdirections in order to hustle work from the open source community. (Happily, good patent lawyers, like most good techs, rarely suffer from the problem of not having enough work).
Right or wrong, you may rely on my remarks, at least, as having been made in good faith. If more interested in truth than engaging in ad hominem lawyer-bashing, may I suggest rereading my remarks to discern the real import of what was written?
As I understand the US law, you are allowed to copy whatever you want from patents for PERSONAL USE.
You are free to make copies of the patent instrument, of course (which is a copyrightless government publication). On the other hand, if you "make" or "use" the invention, you are infringing, regardless of use, and even if you didn't make profits, would be subject to injunction a reasonable royalty and court costs, plus possibly treble damages and attorney fees.
No where am I seeing a discussion of PROCESS patents. Like one-click shopping. Or scratch and win (as a web application)? Exactly HOW are you going to create a 'defense pool' of the classification of process patents?
By inventing new, useful and unobvious processes and filing the applications?
I agree that much thought needs to go into the licensing approach for a patent pool, and I would not use FSF for that purpose either. But the fact that there are complex questions doesn't mean this isn't a capital idea once fully developed.
Patents are extremely territorial in scope, and law varies nation to nation. A U.S. patent excludes people from making in, using in, selling from, importing to or offering for sale from the United States, and with exceptions does not apply to purely extraterritorial transactions, for which local law applies. You need a patent in each country in which you would like to enforce a patent.
Various treaties permit you to file foreign national applications within a limited time period after a domestic application, or to extent that period de facto by filing a so-called PCT application.
But the invention must be patentable according to each coutnry's national law to obtain a patent there. Virtually every country considers foreign patents and publications as prior art (although some, but not all, consider foreign public uses or sales).
It is highly unlikely that you could obtain a later patent on an antedating work in a foreign jurisdiction, and even if you could, the offering of or importing into the domestic nation where the work is patented by another would be a patent infringement by *you*. (Highly oversimplified analysis of an highly oversimplified hypothetical -- on subtly different facts the end result can be quite different, just trying to give you a taste of the considerations).
My line manager explained the way patent infringement works.
Both companies pile up all their patents, and whoever has the heaviest pile wins.
Pithy and amusing, but clearly false as a general statement. The truth is far more interesting Consider Microsoft (then owner of only a few hundred patents), and STAC (then owner of 1). Verdict: Microsoft liable for patent infringement to the tune of $110M.
Present tense, we are seeing Priceline.com (few dozen patents) suing Microsoft (thousands of patents).
There is some truth in the proposed statement in certain circumstances (cross licensing between industry giants), but aside from being funny-sounding, it does not really inform the question.
The better way of saying it is to note that there are many uses for patents, including offensive (revenue-generating, competition-eliminating) uses of patents and defensive (cross-licensing; counterclaim protection) uses of a patent portfolio. Much depends upon whether a company is going for a large number of relatively weak, narrow, "covering" patents, in lieu of a carefully crafted, expensive patent of very broad scope.
The difficulty comes from the companies with a single patent that their whole business is based on. Then the patent is more valuable to them to keep a stranglehold on the market, by eliminating direct competition.
All patents suffer this problem, but in practice, markets being what they are, single-technology companies tend to generate more revenues by licensing fees than by extorting monopoly rakes. The vast majority of patents aren't practiced at all. Of those that are practiced and commercially meaningful, the vast majority are exploited by licensure.
There are certainly notorious examples of companies that have taken "seminal" patents out of circulation throughout its term (e.g., Polaroid), but to do so, there needs to be the rare combination of a stranglehold seminal patent, and no meaningful alternative in the marketplace.
I'll stand by my previous statement that the present motion is both routine and not unconcionable. In a legal action disputing whether subject matter is trade secret, it is routine and proper that publicly availalbe files containing the subject matter of the lawsuit be redacted to exclude the subject matter of the suit. When this is overlooked, for whatever reason, it is common to make an emergency motion to seal it -- and such motions are commonly granted.
You may choose to take the position that anything that is done by MPAA concerning the lawsuit is unconcionable -- this is a common view in this community. However, going ballistic over routine motions will simply get you ignored as one who "always cries wolf" when you go ballistic over the real ones.
Assume for the sake of the argument that the subject matter *WAS* a trade secret. If so, having the court files containing the subject matter (if indeed it did contain the subject matter) laid open to the public is a grievous technical error that should be immediately corrected.
The motion was routinely made and probably will be routinely granted. I can't think of any meaningful defense to this motion(particularly since a P.I. was already granted) except, perhaps, that the declaration does not contain subject matter claimed to be secret. In that case, no more than a few hours notice is necessary to prepare the appropriate papers and to appear for hearing.
And no, I'm not defending the plaintiff's position. I'm not fond of what they are doing either. I'm just saying it would be best for the credibility of the committee to call a spade a spade and save their vitreol for the really bad stuff.
There is an amazing power in the advocacy of making concessions. If you give to others what is theirs, particularly before the Court, then when you do ask for things, the Court sits at attention. If you oppose EVERY motion, and gainsay EVERY argument, you will eventually get tuned out. This is particularly true when, looking at things practically and objectively, you can't win the motion.
Unless facts and California public records and trade secret law is substantially different from the reports, it is time to say, "Your honor, assuming their allegations were true, of course this motion must be granted -- the fact that they let this happen is proof, indeed an admission, that this plaintiff doesn't take reasonable precautions to preserve secrecy of that information, and that is why we must ultimately prevail on the merits. But for the record, we do not oppose this emergency motion."
To win in disputes like these, you have to stay very cool, you have to judge the judge, and you have to stay credible. I am reminded of an excellent story about the New York case in which West Publications tried to keep others from making a database with citations to legal materials in West Reporters, using page numbers. After West's lawyer argued at length (well over the allotted hour), the exhausted Judge turned to the defendant and a hero lawyer said something like the following:
"Your honor, the plaintiff claims copyright protection of the numbers 1, 2, 3 and so forth in sequence. We find this an astonishing position and have nothing to add to our briefs."
He then did the most important thing a lawyer can do -- "he sat down." He knew when it was important to speak, and when to shut up. Interestingly, that lawyer won that case with that brief argument, when several other lawyers (including a friend of mine who handled a case in Minnesota on the same issues with a different defendant) failed on the same issue.
Stay cool! Direct your rage appropriately. Ignore the silliness when they overreach and it doesn't matter, or look for ways to use your advantage at another time. Then, when it is right, use it to best effect. Advocacy is much more effective that way.
The legal system is an administrative nightmare in many respects, and can never move with adequate speed, except when things are moving at a breakneck rate. As a practicing lawyer, I can say that the vast majority of practice is to diligently work following the Boy Scout Motto, so that when the SHTF, you can flurry out a vast amount of work product, appearing to have been superhumanly quick.
To a layperson, the law seems to move glacially (and it generally does). Nothing ever gets decided, and when it does, only a little bit at a time.
There are some exceptions, however, and good agressive lawyers can use them to achieve partial results with remarkable speed. One is the preliminary inunction/TRO -- which by rule must be decided promptly. The other are these administrative emergency motions. The court is highly likely to seal this initially, and promptly, on the theory that it can always be unsealed, but that if not sealed, the toothpaste cannot be put back in the tube. (cat-out-of-bag, genie-bottle, pick the cliche of your choosing).
It certainly *DOES* seem unfair when you represent defendants (as we seem to be doing a lot of these days), and a plaintiff who has had months to prepare a complaint and preliminary injunction/TRO papers just files, serves, and gives you just days to rally (usually just hours, since the client has spent days shopping for a lawyer). In practice, though, this is often enough time to address the status quo questions.
I cannot defend the conduct of MPAA, but I note that the results obtained so far, and the tactics used, are not unusual or surprising. Such tactics are regularly used by plaintiffs representing not only corporate monsters but also individuals. (I presently have a case where an individual unwealthy single mom who sued a corporation for copyright infringement. Her lawyers used precisely the same tactics.)
In other words, cool your jets. This is not the unconcionable part -- it is in fact routine and expected legal stuff. The unconcionable part comes on the bringing of the case and the results on the merits.
In just a few weeks, the opportunities for breakneck nasties are over, and we will be communally criticizing the system for being so onerously slow at being able to finally resolve these questions.
I know its not as much fun as presuming that the judges are cowtowing to wealthy powers-that-be in whose pockets they reside, giving opportunities to the monied not available to mere mortals. But this just isn't the case as to *THIS MOTION* -- it is a fairly routine matter, and one that doesn't require much effort for which to prepare a response.
if its a software patent, presuming that the notion itself is well defined. I understand that some folks have a "knee-jerk reaction against a software patent" because they deem that "all software patents are bad." But without seeing the claim, you will never know if the claims are broadly directed to what you consider a software patent, or whether it is directed to some hard-wired apparatus for curing cancer. You just can't know.
While I agree that the argument, "assuming all software patents are bad, and assuming that the described patent is a software patent, we may conclude that the described patent is bad." On the other hand, "knee-jerk" assumptions about the major hypothesis, and uninformed conclusions about the minor hypothesis, doesn't really make claims to the consequent very interesting.
What is interesting is the following suggestion:
You can't go half-hog on this, you are either against software patents or you aren't - I am disappointed that more slashdot readers don't see this.
Perhaps the writer will suggest why he thinks this is the case? Why can't someone be consistently opposed to the issuance of any proper subclass of software patents? Why can't someone argue to the contrary that "you can't go half-hog on this, you are either against patents generally or you aren't." The reason few readers "see this" is because it isn't an argument at all -- its just a slogan, pabulum for trying to move uninformed masses to a conclusion.
Many of us have more respect for those slashdotters who actually make arguments on behalf of their position, regardless of how they come out. Those who instead prefer to "lobby" to an easy audience are, well, wasting bandwidth.
Think about it, exactly how far do you think you would get trying to make a real change by arguing to the Senate Judiciary Committee, "Look Senator Hatch, you can't go half-hog on this, you are either against software patents or you aren't?"
To be frank, this is the fundamental problem -- an ideological movement that is to make a difference must be founded on more than slogans -- it must have a solid core philosophy, and a strong logical basis for its being. You must persuade not only those who "see this," but those who don't and are willing to listen. You must endeavor to make change -- which means changing minds.
Otherwise, you are not engaging in debate or discourse: you are simply whining.
Having admitted you can't know what is the subject matter of the patent, and that you don't care what is the subject matter of the patent, you can never know whether it is actually limiting any of the freedoms you claim to be defending. You just don't know one way or the other.
Even assuming that your definition of "mathematical patent" is well-defined and that your normative conclusions are accurate, you can say, "hey, it is a mathematical patent," and I could gainsay you on the point, with neither of us being able to agree or not on the question -- because we don't know what is claimed. Both are at present nonfalsifiable propositions. Accordingly, you cannot conclude whether or not the application is worthy of a patent.
Just as I have criticized those who have claimed, without more, that a theoretical "application" based on a general subject, was valid, I take issue with the propostion that the patent was valid?
You simply cannot determine the validity of a patent (or its invalidity) based upon its title, its abstract or even the langauge of its specification. The claim is the only meaningful basis by which such a patent can be determined. Period.
Likewise with respect to the commercial value of the patent.
I wrote: With all due respect, none of us, myself included, can comment on the validity or propriety of an application for a patent until we have seen what in fact is claimed.
The reply: I disagree. The fundamental question is: Do we want patent law in the realms of mathematics?
This answer is downright silly: (1) without seeing a claim, how can you possibly know what is the subject matter of the patent? (2) How do you define the "realms of mathematics?"
Precisely what are your particular subject matter objections to patents concerning compression technologies on this "pure mathematics" ground? Exactly how does it stop you from the "freedom of doing mathematics without having to be a lawyer."
Please identify a patent infringement single case involving the "freedom of doing mathematics."
With all due respect, to this lawyer/mathematician, your argument sounds more like attempting to "lawyer" away the patent law than to argue for the virtues of pure science.
How can you possibly imagine noone would have invented it, and at rougly the same time, if Edison hadn't? The situation we have now is less a flowering of research and more a greedy gold rush - the gold goes to who gets there first, and who doesn't join the rush, loses.
Yeah, tell that to Frankston and Bricklin! They got there first, and yet few today, even among this community, know who they are. On the other hand, their creation -- indeed their invention -- made others wealthy, and one of them the wealthiest man in the world. Being first to market assures nothing, particularly without the means to protect a well-earned competitive edge.
So far as the light bulb case goes, I think the argument made here is who would have bothered to perfect an incandescent light bulb if all who saw it could duplicate it with ease? Edison was not, in fact, the first to suggest generating light with electricity -- there was substantial prior art from which he worked to perfect a solution to the problem. Edison's example is a great one -- his was not a seminal, fundamental invention -- his was an excellent overall solution to a problem. He could justify building a lab simply to experiment with and polish the pure science before him, to make a solid, protectible product he could then bring to market.
I can say with confidence that I have seen many fine ideas die on the vine simply because they were unprotectible by patent or copyright. Who would agree to pay a royalty for an unprotectible idea? I would far prefer you deal with my competitor, so that I could copy it and sell it for less, because of my lower overhead.
First off, you are completely incorrect about the historical background of patents. They were, in fact, established to promote innovation by insuring the patent entered the public domain after 17 years so that progress could continue. Without patents, it was claimed, inventors would hoard their discoveries and they would never see the light of day.
For someone who criticizes others for complete correctness, perhaps you ought to check your history. The first patent Act did not set a 17-year term.
More important, no single pithy statement of the purpose of the Act is likely to be complete or adequate. As often is the case, the truth is far more interesting. The Constitution grants Congress the power to authorize patents to Promote the Useful Arts, and the meaning of this, of course, is subject to many reasonable interpretations. Many "purposes" have been proffered at various times, both in historical documents, legislative history and judicial opinions. Disclosure is certainly one. Incentive to invent is certainly another. Neither is completely right or completely wrong.
With respect to the "I'm a big R&D guy, and I know that this other guy doesn't know nothing" posturing, suffice it to say I know plenty about and have lived in both worlds, and the position adopted by the author is, to be as polite as possible, not the whole story. Over the past 200 years, nations with strong IP have led the world in innovation, engineering and R&D, notwithstanding the "burdens" of their IP systems. Nations with weak IP have, well, written a great deal about the virtues of their science. A fair argument can be made that few would be hired to perform R&D were there no means to protect the fruits of their labor. As noted, the truth is often rather more interesting.
The most fundamental of patent issues: the claim (the numbered paragraphs at the end of the specification) is the thing. The claims determine the entire scope (the metes and bounds) of the patent grant. Unless you look at what is claimed, you cannot say anything important about the scope of a patent.
A claim can be directed generally to well-known art, but have some subtle distinction buried in all those words that makes it patentable (and generally harmless). Patents issue every year or so on paper clips, yet none seriously threaten the marketplace for clips, even though most of the words of the claims are directed to what you would expect in a paper clip.
You can't tell if a patent is good/bad/indifferent without seeing the claims. Knowing only the general subject matter, the title or the abstract is meaningless.
Thus, if you don't have a claim to talk about, you can't answer any questions about whether the patent can or should issue.
2) Tell me what your colleagues have done to improve patent law.
A number of provisions passed this year in the awkwardly entitled "American Inventors' Protection Act." Unsurprisingly opposed by many patentholder lobbies, this bill provided some limited broadening of the scope of third-party patent reexaminations. Also, and most interesting to the present discussion, it provided prior user rights for defendants accused of infringing a patent directed to a method of doing business, if the user had been practicing the method before the patent had issued.
3) Tell me what I can do to improve patent law.
Boy is there a long way to go. But we need to do it in small steps. IMHO, we should: (1) try to further strengthen third party patent reexamination, so that an inexpensive means exists to bring meaningful prior art to the attention of the patent office to take wrongly issued patents out of circulation; and (2) try to weaken the presumption of validity of a patent when a defendant raises new prior art not considered by the PTO, if the new art raises a substantial new question of patentability.
These steps have a chance of passage, and the arguments concerning the impact of bad patents on e-commerce and software arts will begin to get these issues on the table. Far more important, there are existing lobbies (in particular the American Intellectual Property Law Association) who are presently fighting for patent reform.
I'm not prepared to comment on whether this deserved a patent under the existing criteria - because, as you rightly point out, I (like most of the posters here) don't have the background knowledge to do so.
Well, my point is not that you don't have the knowledge to do so, but rather than *NONE* of us (myself included) do. Speaking about a patent we haven't seen is foolish -- we are merely speculating what should and should not issue.
However, I don't believe that it is *right* to patent this kind of thing. I don't believe society benefits from this kind of patent. I believe that patent law should be changed to avoid these patents, and the opportunity for wider re-examination of the patent
What "kind of thing"? Which "these patents"? We simply don't know what was claimed. I just applied for a patent on a new trebuchet design. From that statement alone, do we decry the application because it is based on the law of gravity? Until we have seen the patent or the application, we just don't know. We cannot evaluate the scope of your "kind of thing" or "these patents" statements in the abstract. Let's keep it real.
On the other hand, I agree completely that broader reexamination is necessary to avoid the harm of bad patents. I would go futher -- I think the presumption of validity should be relaxed when a patent is challenged for art not considered during examination that raises a substantial new question of patentability.
I think that these proposals would substantially reduce the harm from bad patents issuing, and moreso, would have a fair chance of actual passage in view of recent movements in the Congress. More important, if played right, it could get some of these broader issues on the table. This would be a result I think all slashdotters could get behind.
I am putting together a more detailed proposal on these latter proposals now. I'll be sure to publish it here, if there is any interest.
I my opinion are mathematical truths discoveries not inventions and should therefore not be patented. You could argue that they are inventing an implementation, but the mathematical principle behind this idea is discovered, not invented, and should thus not be patented.
There is little disagreement on this point in theory. Indeed, the preceding remark is a reasonable statement of law. Recent cases still hold that "[u]npatentable mathematical algorithms are identifiable by showing they are merely abstract ideas constituting disembodied concepts or truths that are not 'useful.'" The cases agree with your proposition that "to be patentable an algorithm must be applied in a 'useful' way." But distinguishing between the "idea" itself and an implementation is where the real heat lies. Under present cases, all that is necessary is to be able to argue that the claim is directed to a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result.'
So, how would you refine your statement to distinguish the present state of the law?
Well, no offense, but if the patents coming out lately are typical, you and your colleagues are doing a terrible job reforming the patent system.
Are they? I have read every patent-related article in Slashdot in recent months and have yet to see a single patent subjected to anything close to an invalidating analysis.
While you may enjoy the lawyer-bashing, and the suggestion that we somehow all "dance to corporate marketing jingles," nothing is proved by that. While you are wrong about me, personally, that is wholly beside the point. Even if I were in someone's pocket, how would that make my arguments more or less valid? Why would the ignorance and naivete of the attacks made on the patent system by those who have not studied the law be any more meaningful or correct?
Come off it. No one can reasonably suggest that a person is qualified or unqualified to discuss patent policy merely because he or she is a lawyer. That's just another straw man in defense of the naive attacks. I am suggesting that one who *DOES* attack the patent system should first undertake to learn something about how it works.
Apparently that is too controversial a point to raise in this forum.
With all due respect, the second paragraph simply spouts conclusions, not an argument. You may take as a given that harm is being done, that things are being hoarded, that these things are rightly the property of "the humanity," and that the consequences are "just plain wrong." But you haven't really done much to persuade someone who does not that you are correct. Indeed, those who come out punching with conclusions like this are the easiest to bat down in debate. Better to start with particulars, measure the harms and then to show why those harms hurt "the humanity."
We must modify it so that it distinguish between intellectual property belonging to humanity in general, and intellectual property that has been genuinely created, and thus can be owned, for a time, by an individual.
That's not a bad idea, but it presumes that the distinction can be drawn. What standard would you use to determine what is a "truth" owned by all, and what is an "invention," for which we want to reward someone for disclosing? If someone figured out a new "law of physics," to capture and manipulate negative energy and worked out the means to build the "warp drive" thereby, do we give him the patent or don't we?
Interestingly enough, the author notes that there is more than one purpose to the patent law even with his own remarks. Had he truly adopted the "original purpose" of rewarding those for disclosure, why would it matter whether the disclosure is that of a "mathematical truth" or a design for the warp drive? Don't we need the disclosure just the same?
In short, these are deep and complex problems. I agree there needs to be a boundary between abstract ideas and patentable inventions, and find myself sympathetic to the statements made by the author. On the other hand, the line is much harder to draw than is suggesting by this posting. It would be nice to distinguish solely between "discovered truths" and "invented notions," but in practice that has always been a difficult problem. The modern test of "anything under the sun made by man" is where things have been drawn. What exactly is the problem with that?
Over the centuries, several tests have been proposed, leading to the one we have at the moment. Perhaps the author will now suggest how we can define his distinction more perspicaciously, so that it can be practically applied, and so we can take this to the next step?
so you're saying that by the slashdot community (who is obviously not fighting any sort of real battle for patent reform and is horribly uneducated in this matter) discussing it in an open forum, we're reducing the possibility of change?!?
That's your straw man. Its not what I said. On the other hand, if you want change, its time to do a bit more listening and learning. You can preach to the choir on slashdot all you like, but nothing will be accomplished and you will have learned nothing.
On the other hand, some of our colleagues are offering real knowledge and information about the system. Read up, listen up and think hard about these issues before spouting mere pabulum, and you will in time see change.
Spout the "party line," march in lockstep, and you will be ignored.
And he is condemning us for being so critical of the patent without having any of the facts. The patent application was not available, so who are we to judge it?
Reread my posting. You raise precisely my point! "Who are we to judge" a patent application that we haven't seen! NO conclusion may be drawn concerning a patent application based solely on a general understand of the subject matter to which it is related. It may be valid, it may be invalid, and you simply don't have a clue.
Nevertheless, we listen to nothing but vitreol about the patent system, the patent examiners and patent lawyers concerning the "obvious" invalidity of this application. Nonsense.
I would be surprised if there were many patent lawyers on Slashdot who are actually knowledgable about this sort of thing, rather than simply jumping to conclusions.
Precisely what "sort of thing" would you have me be knowledgable about? I did my undergraduate work in applied math, my graduate work in computer science, published software for a dozen years.
Now, let me turn the question around. How long have you studied patent law.
The slashdot community thinks that an invention is unworthy of a patent -- all without seeing a single line of any specification or claim. With all due respect, none of us, myself included, can comment on the validity or propriety of an application for a patent until we have seen what in fact is claimed.
Nonetheless, we have already seen posted here vitreolic remarks suggesting USPTO incompetence, unreasonable conduct by the applicant and general remarks about unnamed "abuses" of a Patent system.
I have obtained and enforced patents for clients, and invalidated patents of others. I know what it takes to meet the tremendous burden of showing a patent is invalid, or even the burden for an examiner to make a prima facie case to refuse a claim. Several remarks made here do not come close, and, to be frank, would appear ignorant and empty to any educated student of the patent law.
Several of use who are fighting the fight for real patent reform have had our battles made more difficult, not less, by the conduct of those who randomly assault the USPTO without cause. Such remarks ultimately (and properly) get ignored, and the Office begins to turn a deaf ear to all arguments made for change -- even when they are sound.
The bottom line is this: some patents are valid, and others are not. The determination is made on the merits -- there either is or is not an adequate specification; and there either is or is not invalidating prior art. The very reasonable news story asked for meat, but regrettably all we have seen thus far are whinings, rejecting legitimate arguments of validity as mere "legalese."
For those of you who have undertaken to educate yourselves about the subject of patents and comment on this subject, I regard your comments and cricicisms highly -- you have taught us a great deal, and even where we have disagreed, I have been both enlightened and educated by the discourse. I hope that in time your colleagues will follow your example.
Slashdot Mirror
Although this is not what you want to hear, there really is only one meaningful answer to this question. Get ready!
In other words, talk to a full-blooded lawyer about the question before you release. Have materials and papers ready, being ready to ambush the ambushers with motions and declarations before the ex parte and rush TRO hearings. Have all your ducks in a row, to the extent you do have a legal defense, and make certain that you don't overstep or lose on a technical glitch.
The only way to do this right is to have a lawyer, whom you have retained for your particular problems. If money is an issue, you may have to find someone willing to do it pro bono, which may be possible if the cause is worthy. This may require some shopping, and I'd be pleased to help guide you to finding such a person working in your jurisdiction.
But do this ALL UP FRONT, with a clear sense of what you are doing and why you are doing it. In a recent thread, slashdotters lambasted the legal system for moving too quickly. Count on it to move quickly, too quickly, once you release. In the meanwhile -- YOU CONTROL -- when that happens. So be ready for the deluge, before it descends upon you.
Although its not what you want to hear, the only way to be ready, legally speaking, is to be ready, legally speaking.
Several posts thus far have accused the Congress of being "brain-dead" or "ignorant" of technological issues. While the conclusion may be true, this bill is not evidence therefor. Indeed, far to the contrary, this bill is an extraordinary step: Congress is getting government OUT OF THE WAY of technologists and the marketplace.
To the contrary, these postings manifest a lack of understanding of the *legal* purpose and effect of a signature (which is all that the bill addresses). One post stated:
Signing a document has two purposes:
* authenticity
* non-repudability
However true this might be for practical uses of signatures, the signing of a document for legal purposes has nothing whatsoever to do with either "feature," as they appear to be understood here. ("Authentication" doesn't mean what I think he thinks it means.) Indeed, nothing about paper-on-ink signatures, which are trivially forged and transferred from one document to another, provides either of the cited functions.
And it is certainly true that a panel of computer lawyers at the ABA (and the state of Utah) felt that a set of express standards for signatures by electronic means to assure authentication of and non-repudiability by the signer. On the other hand, the clear trend today in state legislatures is instead to adopt more minimalist bills, such as the one that passed the House, that simply assure that electronic instruments are treated no more or less formally as paper writings. Here's why:
In almost all of the United States, we still have a body of law entitled the "Statute of Frauds," which provides that certain types of agreements (e.g., sale of goods > $500, transfer of real estate) are unenforceable unless a "sufficient memorandum" is signed by the party against whom enforcement is sought. Other laws likewise require formalities for certain documents, such as deeds, wills, assignments of certain kinds of intangible property and the like be signed by certain parties.
Here, the purpose of these laws is, supposedly, to avoid swearing matches by giving the world an incentive to make physical, tangible manifestations of the subject matter of the agreement. But the effect of the law is that a market participant, even though he had agreed in full to a contract and even if he fully intended at the time to go through with it, may actually avoid its enforcement later on the purely technical ground that there exists no writing signed by him.
Interestingly, except for certain instruments, the tangible manifestation is not as important as the fact that it was made: you could enforce a document with credible testimony that a signed writing existed in the past. In any case, it is that manufacture of that manifestation that is important for legal policy.
The signature itself, for legal purposes, does not serve to authenticate who was the document's signer, or to avoid repudiation: it is merely to authenticate the document as the one agreed to by the parties -- to distinguish, for example, a draft from the "real thing." The legal technicalities of signature are few. The following have all been found to be valid:
- printing an "X"
- making a scratch on the paper
- shaving a name on the side of a cow
- writing someone else's name
- typing your name
- asking Western Union to type your name
which of course does nothing to identify the signer or to assure non-repudiation. Nor does the common law require that document to be signed, if the signature is placed on another instrument (or bovine mammal) in such manner as to manifest intent to authenticate that document. Papers have been written with bizarre examples of what constitutes a signature. Under the UCC, a signature is any fixed tangible manifestation of an intent to authenticate the document.
On the other hand, when I am attending the closing a zillion dollar sale of a chain of hotels, and the principal of the seller walks up to one of the documents, notes that he heard he could sign "Minnie Mouse" or scrawl an "X," on another piece of paper, I politely ask him (if he is not illiterate) to write his name in cursive on the contract itself. If he refused, I'd advise my client to consider putting off the closing.
Why? Because while these methods of signature are legally sufficient if *he* in fact *intended* to sign, I might still someday need to use these documents to evidence those facts. The legal sufficiency of a document is an entirely different thing from the practical security that sometime, someday, he might change his mind and "misremember" why he signed "Minnie Mouse," or marked only a vertical line or "X." (Remember, it is all about the manifestation of an intent to authenticate.)
On the other hand, for less signficant transactions, we hardly care one way or the other whether or not we can prove or disprove *WHO* signed the document or why -- we just want there to exist barely minimal legally sufficient documents to avoid a technical defense based upon the Statute of Frauds.
Its all about Eggs in Baskets. The realities of the marketplace determine what "technologies" for signature an individual will use, and what "informal," but legally sufficient signatures will be accepted. Each buyer and seller will decide for himself and herself what to require of the other.
Many valid signatures are commercially unacceptable for those reasons. On the other hand, while this is a non-problem, the concern is that a commercially acceptable signature might be held to be invalid! The law serves only to provide the minimum requirements for a signature to be valid (as opposed to "commercially acceptable.") The marketplace determined what technologies they will use and accept.
Which brings us to the ESA. Assymetric encryption now provides (under certain circumstances) greater security to prove authenticity, which is an excellent reason to use electronic signatures in lieu of "traditional" technology, particularly for on-line transactions. On the other hand, it is not for the law to determine what technology should be used -- the law should only undertake to assure that a sig is valid and leave it to you and me to decide what we will accept.
The mind-loss would be to adopt some 50 plus pages of specification as to what is and what is not a valid signature and providing an entire new kind of litigation on the formalities of a contract. "Sorry, you don't get to keep the house, your certification authority's license expired the day beforehand." Such technical defenses would be brain-loss at best.
Whether a vendor should accept the following e-mail:
"I will buy five million widgets at $25,000 apiece, 2%/10 net 30. love andy"
is entirely up to him. Whether a court will enforce these price terms if Andy admits he sent it, on the other hand, is another issue entirely. On the other hand, if commercial exigencies make it practical and financially more efficient to permit that exchange by e-mail, the law should not get in the way.
As an aside, it is almost certainly the case that the foregoing e-mail would satisfy the Statute of Frauds. Its just that in the absence of case law, a market participant can't be assured that it is. We abundance-of-caution-types would stick to pen-to-paper, even if it cost a bit more and took a bit longer, because we KNOW that the courts will accept that. It is for these people that this law exists -- to give them some comfort concerning what is almost certainly the law today -- there will be no technical defense to enforcing an agreement on the ground that the agreement was signed in electronic form. It is up to the market participants to determine if the mode of signature used gives them enough comfort that they will be able to prove that the document was in fact signed by the other party.
Hat's off to a Congress that showed, in this case, a far greater savvy about electronic signatures than the ABA and many technologists. ESA does precisely what it is supposed to do, make crystal clear that a technical defense on the ground that an electronic document is not a "writing," and that a typed signature is not a "signature," while leaving it to the marketplace to decide what signature technology they will prefer to use.
The best --indeed the only-- remedy, for bad speech is more speech. To permit government to make sanctions on any person for expressing their ideas is simply to cede away the most fundamental of human rights.
The ideas of facism, particularly, pose no meaningful threat -- the bigoted nonsense espoused by modern neo-nazis, transparently false in its own right, is highly inconsistent and easily disproved on its face.
Whether there is such a thing as a "dangerous" idea, neo-nazism is not one of them -- truth is likley to prevail unless we permit the surrender of freedom and free speech, and a neo-nazi propagandist takes control thereafter. Only by stunting the marketplace of ideas can such ideas become meaningful threats to society.
It is not these ideas of these idiots that threatens civil society, it is these proposed solutions that would deprive me of my freedoms.
Anything that expands the job market of lawyers and patent law helps you and your firm. For if your competition is doing opensource-patent-stuff, then your firm has clients they would not serve.
/. denizen anywhere who didn't know I am a lawyer. (Too bad for him that he doesn't know what else I do.)
Trolling for work on slashdot isn't a good use of time. And you seem brighter than that.
The continued ad hominem nature of these remarks are extraordinarily offensive and non-responsive on the merits.
That you find the patent system an anathema, and disregard my substantive arguments out of hand therefor, is neither argument nor justification. That you place me in a "box" as a lawyer manifests one of the fundamental errors of the ad hominem attack -- you don't have a clue who I am, what I know, and what is my perspective.
The hole-in-the-ground "solution" suggesting that legal should be avoided is naive and may, someday, to destroy some important and useful project. There are a raft of exceptional attorneys (myself included) who routinely dedicate hundreds of hours per year to pro bono activities worthy of their attention. The only excuse not to consider these issues is to concede that the cause is unworthy. Not me, not me.
Fear not, friends, I shall not reply again to this thread unless it in fact returns to the merits. This discussion presented here has, regrettably, turned unworthy. I leave the field gladly in deference to my lawyer-bashing acquaintance.
(. . . I wanted to establish what you more-or-less did for a living.)
Yeah, right, like there is a
Say, arn't you a patent attorney? Looks like your idea is a way to get more work for yourself.
Then I'm sure all of my remarks should be discounted as mere attempts and misdirections in order to hustle work from the open source community. (Happily, good patent lawyers, like most good techs, rarely suffer from the problem of not having enough work).
Right or wrong, you may rely on my remarks, at least, as having been made in good faith. If more interested in truth than engaging in ad hominem lawyer-bashing, may I suggest rereading my remarks to discern the real import of what was written?
As I understand the US law, you are allowed to copy whatever you want from patents for PERSONAL USE.
You are free to make copies of the patent instrument, of course (which is a copyrightless government publication). On the other hand, if you "make" or "use" the invention, you are infringing, regardless of use, and even if you didn't make profits, would be subject to injunction a reasonable royalty and court costs, plus possibly treble damages and attorney fees.
No where am I seeing a discussion of PROCESS patents. Like one-click shopping. Or scratch and win (as a web application)? Exactly HOW are you going to create a 'defense pool' of the classification of process patents?
By inventing new, useful and unobvious processes and filing the applications?
I agree that much thought needs to go into the licensing approach for a patent pool, and I would not use FSF for that purpose either. But the fact that there are complex questions doesn't mean this isn't a capital idea once fully developed.
Patents are extremely territorial in scope, and law varies nation to nation. A U.S. patent excludes people from making in, using in, selling from, importing to or offering for sale from the United States, and with exceptions does not apply to purely extraterritorial transactions, for which local law applies. You need a patent in each country in which you would like to enforce a patent.
Various treaties permit you to file foreign national applications within a limited time period after a domestic application, or to extent that period de facto by filing a so-called PCT application.
But the invention must be patentable according to each coutnry's national law to obtain a patent there. Virtually every country considers foreign patents and publications as prior art (although some, but not all, consider foreign public uses or sales).
It is highly unlikely that you could obtain a later patent on an antedating work in a foreign jurisdiction, and even if you could, the offering of or importing into the domestic nation where the work is patented by another would be a patent infringement by *you*. (Highly oversimplified analysis of an highly oversimplified hypothetical -- on subtly different facts the end result can be quite different, just trying to give you a taste of the considerations).
My line manager explained the way patent infringement works.
Both companies pile up all their patents, and whoever has the heaviest pile wins.
Pithy and amusing, but clearly false as a general statement. The truth is far more interesting
Consider Microsoft (then owner of only a few hundred patents), and STAC (then owner of 1). Verdict: Microsoft liable for patent infringement to the tune of $110M.
Present tense, we are seeing Priceline.com (few dozen patents) suing Microsoft (thousands of patents).
There is some truth in the proposed statement in certain circumstances (cross licensing between industry giants), but aside from being funny-sounding, it does not really inform the question.
The better way of saying it is to note that there are many uses for patents, including offensive (revenue-generating, competition-eliminating) uses of patents and defensive (cross-licensing; counterclaim protection) uses of a patent portfolio. Much depends upon whether a company is going for a large number of relatively weak, narrow, "covering" patents, in lieu of a carefully crafted, expensive patent of very broad scope.
The difficulty comes from the companies with a single patent that their whole business is based on. Then the patent is more valuable to them to keep a stranglehold on the market, by eliminating direct competition.
All patents suffer this problem, but in practice, markets being what they are, single-technology companies tend to generate more revenues by licensing fees than by extorting monopoly rakes. The vast majority of patents aren't practiced at all. Of those that are practiced and commercially meaningful, the vast majority are exploited by licensure.
There are certainly notorious examples of companies that have taken "seminal" patents out of circulation throughout its term (e.g., Polaroid), but to do so, there needs to be the rare combination of a stranglehold seminal patent, and no meaningful alternative in the marketplace.
I'll stand by my previous statement that the present motion is both routine and not unconcionable. In a legal action disputing whether subject matter is trade secret, it is routine and proper that publicly availalbe files containing the subject matter of the lawsuit be redacted to exclude the subject matter of the suit. When this is overlooked, for whatever reason, it is common to make an emergency motion to seal it -- and such motions are commonly granted.
You may choose to take the position that anything that is done by MPAA concerning the lawsuit is unconcionable -- this is a common view in this community. However, going ballistic over routine motions will simply get you ignored as one who "always cries wolf" when you go ballistic over the real ones.
Assume for the sake of the argument that the subject matter *WAS* a trade secret. If so, having the court files containing the subject matter (if indeed it did contain the subject matter) laid open to the public is a grievous technical error that should be immediately corrected.
The motion was routinely made and probably will be routinely granted. I can't think of any meaningful defense to this motion(particularly since a P.I. was already granted) except, perhaps, that the declaration does not contain subject matter claimed to be secret. In that case, no more than a few hours notice is necessary to prepare the appropriate papers and to appear for hearing.
And no, I'm not defending the plaintiff's position. I'm not fond of what they are doing either. I'm just saying it would be best for the credibility of the committee to call a spade a spade and save their vitreol for the really bad stuff.
There is an amazing power in the advocacy of making concessions. If you give to others what is theirs, particularly before the Court, then when you do ask for things, the Court sits at attention. If you oppose EVERY motion, and gainsay EVERY argument, you will eventually get tuned out. This is particularly true when, looking at things practically and objectively, you can't win the motion.
Unless facts and California public records and trade secret law is substantially different from the reports, it is time to say, "Your honor, assuming their allegations were true, of course this motion must be granted -- the fact that they let this happen is proof, indeed an admission, that this plaintiff doesn't take reasonable precautions to preserve secrecy of that information, and that is why we must ultimately prevail on the merits. But for the record, we do not oppose this emergency motion."
To win in disputes like these, you have to stay very cool, you have to judge the judge, and you have to stay credible. I am reminded of an excellent story about the New York case in which West Publications tried to keep others from making a database with citations to legal materials in West Reporters, using page numbers. After West's lawyer argued at length (well over the allotted hour), the exhausted Judge turned to the defendant and a hero lawyer said something like the following:
"Your honor, the plaintiff claims copyright protection of the numbers 1, 2, 3 and so forth in sequence. We find this an astonishing position and have nothing to add to our briefs."
He then did the most important thing a lawyer can do -- "he sat down." He knew when it was important to speak, and when to shut up. Interestingly, that lawyer won that case with that brief argument, when several other lawyers (including a friend of mine who handled a case in Minnesota on the same issues with a different defendant) failed on the same issue.
Stay cool! Direct your rage appropriately. Ignore the silliness when they overreach and it doesn't matter, or look for ways to use your advantage at another time. Then, when it is right, use it to best effect. Advocacy is much more effective that way.
The legal system is an administrative nightmare in many respects, and can never move with adequate speed, except when things are moving at a breakneck rate. As a practicing lawyer, I can say that the vast majority of practice is to diligently work following the Boy Scout Motto, so that when the SHTF, you can flurry out a vast amount of work product, appearing to have been superhumanly quick.
To a layperson, the law seems to move glacially (and it generally does). Nothing ever gets decided, and when it does, only a little bit at a time.
There are some exceptions, however, and good agressive lawyers can use them to achieve partial results with remarkable speed. One is the preliminary inunction/TRO -- which by rule must be decided promptly. The other are these administrative emergency motions. The court is highly likely to seal this initially, and promptly, on the theory that it can always be unsealed, but that if not sealed, the toothpaste cannot be put back in the tube. (cat-out-of-bag, genie-bottle, pick the cliche of your choosing).
It certainly *DOES* seem unfair when you represent defendants (as we seem to be doing a lot of these days), and a plaintiff who has had months to prepare a complaint and preliminary injunction/TRO papers just files, serves, and gives you just days to rally (usually just hours, since the client has spent days shopping for a lawyer). In practice, though, this is often enough time to address the status quo questions.
I cannot defend the conduct of MPAA, but I note that the results obtained so far, and the tactics used, are not unusual or surprising. Such tactics are regularly used by plaintiffs representing not only corporate monsters but also individuals. (I presently have a case where an individual unwealthy single mom who sued a corporation for copyright infringement. Her lawyers used precisely the same tactics.)
In other words, cool your jets. This is not the unconcionable part -- it is in fact routine and expected legal stuff. The unconcionable part comes on the bringing of the case and the results on the merits.
In just a few weeks, the opportunities for breakneck nasties are over, and we will be communally criticizing the system for being so onerously slow at being able to finally resolve these questions.
I know its not as much fun as presuming that the judges are cowtowing to wealthy powers-that-be in whose pockets they reside, giving opportunities to the monied not available to mere mortals. But this just isn't the case as to *THIS MOTION* -- it is a fairly routine matter, and one that doesn't require much effort for which to prepare a response.
if its a software patent, presuming that the notion itself is well defined. I understand that some folks have a "knee-jerk reaction against a software patent" because they deem that "all software patents are bad." But without seeing the claim, you will never know if the claims are broadly directed to what you consider a software patent, or whether it is directed to some hard-wired apparatus for curing cancer. You just can't know.
While I agree that the argument, "assuming all software patents are bad, and assuming that the described patent is a software patent, we may conclude that the described patent is bad." On the other hand, "knee-jerk" assumptions about the major hypothesis, and uninformed conclusions about the minor hypothesis, doesn't really make claims to the consequent very interesting.
What is interesting is the following suggestion:
You can't go half-hog on this, you are either against software patents or you aren't - I am disappointed that more slashdot readers don't see this.
Perhaps the writer will suggest why he thinks this is the case? Why can't someone be consistently opposed to the issuance of any proper subclass of software patents? Why can't someone argue to the contrary that "you can't go half-hog on this, you are either against patents generally or you aren't." The reason few readers "see this" is because it isn't an argument at all -- its just a slogan, pabulum for trying to move uninformed masses to a conclusion.
Many of us have more respect for those slashdotters who actually make arguments on behalf of their position, regardless of how they come out. Those who instead prefer to "lobby" to an easy audience are, well, wasting bandwidth.
Think about it, exactly how far do you think you would get trying to make a real change by arguing to the Senate Judiciary Committee, "Look Senator Hatch, you can't go half-hog on this, you are either against software patents or you aren't?"
To be frank, this is the fundamental problem -- an ideological movement that is to make a difference must be founded on more than slogans -- it must have a solid core philosophy, and a strong logical basis for its being. You must persuade not only those who "see this," but those who don't and are willing to listen. You must endeavor to make change -- which means changing minds.
Otherwise, you are not engaging in debate or discourse: you are simply whining.
Having admitted you can't know what is the subject matter of the patent, and that you don't care what is the subject matter of the patent, you can never know whether it is actually limiting any of the freedoms you claim to be defending. You just don't know one way or the other.
Even assuming that your definition of "mathematical patent" is well-defined and that your normative conclusions are accurate, you can say, "hey, it is a mathematical patent," and I could gainsay you on the point, with neither of us being able to agree or not on the question -- because we don't know what is claimed. Both are at present nonfalsifiable propositions. Accordingly, you cannot conclude whether or not the application is worthy of a patent.
Q.E.D.
Look more carefully at the affidavit appendix and I think you'll note that Appendix A is not the source code for DeCSS, but notes regarding the same.
Just as I have criticized those who have claimed, without more, that a theoretical "application" based on a general subject, was valid, I take issue with the propostion that the patent was valid?
You simply cannot determine the validity of a patent (or its invalidity) based upon its title, its abstract or even the langauge of its specification. The claim is the only meaningful basis by which such a patent can be determined. Period.
Likewise with respect to the commercial value of the patent.
I wrote: With all due respect, none of us, myself included, can comment on the validity or propriety of an application for a patent until we have seen what in fact is claimed.
The reply: I disagree. The fundamental question is:
Do we want patent law in the realms of mathematics?
This answer is downright silly: (1) without seeing a claim, how can you possibly know what is the subject matter of the patent? (2) How do you define the "realms of mathematics?"
Precisely what are your particular subject matter objections to patents concerning compression technologies on this "pure mathematics" ground? Exactly how does it stop you from the "freedom of doing mathematics without having to be a lawyer."
Please identify a patent infringement single case involving the "freedom of doing mathematics."
With all due respect, to this lawyer/mathematician, your argument sounds more like attempting to "lawyer" away the patent law than to argue for the virtues of pure science.
How can you possibly imagine noone would have invented it, and at rougly the same time, if Edison hadn't? The situation we have now is less a flowering of research and more a greedy gold rush - the gold goes to who gets there first, and who doesn't join the rush, loses.
Yeah, tell that to Frankston and Bricklin! They got there first, and yet few today, even among this community, know who they are. On the other hand, their creation -- indeed their invention -- made others wealthy, and one of them the wealthiest man in the world. Being first to market assures nothing, particularly without the means to protect a well-earned competitive edge.
So far as the light bulb case goes, I think the argument made here is who would have bothered to perfect an incandescent light bulb if all who saw it could duplicate it with ease? Edison was not, in fact, the first to suggest generating light with electricity -- there was substantial prior art from which he worked to perfect a solution to the problem. Edison's example is a great one -- his was not a seminal, fundamental invention -- his was an excellent overall solution to a problem. He could justify building a lab simply to experiment with and polish the pure science before him, to make a solid, protectible product he could then bring to market.
I can say with confidence that I have seen many fine ideas die on the vine simply because they were unprotectible by patent or copyright. Who would agree to pay a royalty for an unprotectible idea? I would far prefer you deal with my competitor, so that I could copy it and sell it for less, because of my lower overhead.
First off, you are completely incorrect about the historical background of patents. They were, in fact, established to promote innovation by insuring the patent entered the public domain after 17 years so that progress could continue. Without patents, it was claimed, inventors would hoard their discoveries and they would never see the light of day.
For someone who criticizes others for complete correctness, perhaps you ought to check your history. The first patent Act did not set a 17-year term.
More important, no single pithy statement of the purpose of the Act is likely to be complete or adequate. As often is the case, the truth is far more interesting. The Constitution grants Congress the power to authorize patents to Promote the Useful Arts, and the meaning of this, of course, is subject to many reasonable interpretations. Many "purposes" have been proffered at various times, both in historical documents, legislative history and judicial opinions. Disclosure is certainly one. Incentive to invent is certainly another. Neither is completely right or completely wrong.
With respect to the "I'm a big R&D guy, and I know that this other guy doesn't know nothing" posturing, suffice it to say I know plenty about and have lived in both worlds, and the position adopted by the author is, to be as polite as possible, not the whole story. Over the past 200 years, nations with strong IP have led the world in innovation, engineering and R&D, notwithstanding the "burdens" of their IP systems. Nations with weak IP have, well, written a great deal about the virtues of their science. A fair argument can be made that few would be hired to perform R&D were there no means to protect the fruits of their labor. As noted, the truth is often rather more interesting.
Ok. I'm listening.
1) Educate me. Tell me what I'm missing.
The most fundamental of patent issues: the claim (the numbered paragraphs at the end of the specification) is the thing. The claims determine the entire scope (the metes and bounds) of the patent grant. Unless you look at what is claimed, you cannot say anything important about the scope of a patent.
A claim can be directed generally to well-known art, but have some subtle distinction buried in all those words that makes it patentable (and generally harmless). Patents issue every year or so on paper clips, yet none seriously threaten the marketplace for clips, even though most of the words of the claims are directed to what you would expect in a paper clip.
You can't tell if a patent is good/bad/indifferent without seeing the claims. Knowing only the general subject matter, the title or the abstract is meaningless.
Thus, if you don't have a claim to talk about, you can't answer any questions about whether the patent can or should issue.
2) Tell me what your colleagues have done to improve patent law.
A number of provisions passed this year in the awkwardly entitled "American Inventors' Protection Act." Unsurprisingly opposed by many patentholder lobbies, this bill provided some limited broadening of the scope of third-party patent reexaminations. Also, and most interesting to the present discussion, it provided prior user rights for defendants accused of infringing a patent directed to a method of doing business, if the user had been practicing the method before the patent had issued.
3) Tell me what I can do to improve patent law.
Boy is there a long way to go. But we need to do it in small steps. IMHO, we should: (1) try to further strengthen third party patent reexamination, so that an inexpensive means exists to bring meaningful prior art to the attention of the patent office to take wrongly issued patents out of circulation; and (2) try to weaken the presumption of validity of a patent when a defendant raises new prior art not considered by the PTO, if the new art raises a substantial new question of patentability.
These steps have a chance of passage, and the arguments concerning the impact of bad patents on e-commerce and software arts will begin to get these issues on the table. Far more important, there are existing lobbies (in particular the American Intellectual Property Law Association) who are presently fighting for patent reform.
I'm not prepared to comment on whether this deserved a patent under the existing criteria - because, as you rightly point out, I (like most of the posters here) don't have the background knowledge to do so.
Well, my point is not that you don't have the knowledge to do so, but rather than *NONE* of us (myself included) do. Speaking about a patent we haven't seen is foolish -- we are merely speculating what should and should not issue.
However, I don't believe that it is *right* to patent this kind of thing. I don't believe society benefits from this kind of patent. I believe that patent law should be changed to avoid these patents, and the opportunity for wider re-examination of the patent
What "kind of thing"? Which "these patents"? We simply don't know what was claimed. I just applied for a patent on a new trebuchet design. From that statement alone, do we decry the application because it is based on the law of gravity? Until we have seen the patent or the application, we just don't know. We cannot evaluate the scope of your "kind of thing" or "these patents" statements in the abstract. Let's keep it real.
On the other hand, I agree completely that broader reexamination is necessary to avoid the harm of bad patents. I would go futher -- I think the presumption of validity should be relaxed when a patent is challenged for art not considered during examination that raises a substantial new question of patentability.
I think that these proposals would substantially reduce the harm from bad patents issuing, and moreso, would have a fair chance of actual passage in view of recent movements in the Congress. More important, if played right, it could get some of these broader issues on the table. This would be a result I think all slashdotters could get behind.
I am putting together a more detailed proposal on these latter proposals now. I'll be sure to publish it here, if there is any interest.
I my opinion are mathematical truths discoveries not inventions and should therefore not be patented. You could argue that they are inventing an implementation, but the mathematical principle behind this idea is discovered, not invented, and should thus not be patented.
There is little disagreement on this point in theory. Indeed, the preceding remark is a reasonable statement of law. Recent cases still hold that "[u]npatentable mathematical algorithms are identifiable by showing they are merely abstract ideas constituting disembodied concepts or truths that are not 'useful.'" The cases agree with your proposition that "to be patentable an algorithm must be applied in a 'useful' way." But distinguishing between the "idea" itself and an implementation is where the real heat lies. Under present cases, all that is necessary is to be able to argue that the claim is directed to a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result.'
So, how would you refine your statement to distinguish the present state of the law?
Well, no offense, but if the patents coming out lately are typical, you and your colleagues are doing a terrible job reforming the patent system.
Are they? I have read every patent-related article in Slashdot in recent months and have yet to see a single patent subjected to anything close to an invalidating analysis.
While you may enjoy the lawyer-bashing, and the suggestion that we somehow all "dance to corporate marketing jingles," nothing is proved by that. While you are wrong about me, personally, that is wholly beside the point. Even if I were in someone's pocket, how would that make my arguments more or less valid? Why would the ignorance and naivete of the attacks made on the patent system by those who have not studied the law be any more meaningful or correct?
Come off it. No one can reasonably suggest that a person is qualified or unqualified to discuss patent policy merely because he or she is a lawyer. That's just another straw man in defense of the naive attacks. I am suggesting that one who *DOES* attack the patent system should first undertake to learn something about how it works.
Apparently that is too controversial a point to raise in this forum.
With all due respect, the second paragraph simply spouts conclusions, not an argument. You may take as a given that harm is being done, that things are being hoarded, that these things are rightly the property of "the humanity," and that the consequences are "just plain wrong." But you haven't really done much to persuade someone who does not that you are correct. Indeed, those who come out punching with conclusions like this are the easiest to bat down in debate. Better to start with particulars, measure the harms and then to show why those harms hurt "the humanity."
We must modify it so that it distinguish between intellectual property belonging to humanity in general, and intellectual property that has been genuinely created, and thus can be owned, for a time, by an individual.
That's not a bad idea, but it presumes that the distinction can be drawn. What standard would you use to determine what is a "truth" owned by all, and what is an "invention," for which we want to reward someone for disclosing? If someone figured out a new "law of physics," to capture and manipulate negative energy and worked out the means to build the "warp drive" thereby, do we give him the patent or don't we?
Interestingly enough, the author notes that there is more than one purpose to the patent law even with his own remarks. Had he truly adopted the "original purpose" of rewarding those for disclosure, why would it matter whether the disclosure is that of a "mathematical truth" or a design for the warp drive? Don't we need the disclosure just the same?
In short, these are deep and complex problems. I agree there needs to be a boundary between abstract ideas and patentable inventions, and find myself sympathetic to the statements made by the author. On the other hand, the line is much harder to draw than is suggesting by this posting. It would be nice to distinguish solely between "discovered truths" and "invented notions," but in practice that has always been a difficult problem. The modern test of "anything under the sun made by man" is where things have been drawn. What exactly is the problem with that?
Over the centuries, several tests have been proposed, leading to the one we have at the moment. Perhaps the author will now suggest how we can define his distinction more perspicaciously, so that it can be practically applied, and so we can take this to the next step?
so you're saying that by the slashdot community (who is obviously not fighting any sort of real battle for patent reform and is horribly uneducated in this matter) discussing it in an open forum, we're reducing the possibility of change?!?
That's your straw man. Its not what I said. On the other hand, if you want change, its time to do a bit more listening and learning. You can preach to the choir on slashdot all you like, but nothing will be accomplished and you will have learned nothing.
On the other hand, some of our colleagues are offering real knowledge and information about the system. Read up, listen up and think hard about these issues before spouting mere pabulum, and you will in time see change.
Spout the "party line," march in lockstep, and you will be ignored.
And he is condemning us for being so critical of the patent without having any of the facts. The patent application was not available, so who are we to judge it?
Reread my posting. You raise precisely my point! "Who are we to judge" a patent application that we haven't seen! NO conclusion may be drawn concerning a patent application based solely on a general understand of the subject matter to which it is related. It may be valid, it may be invalid, and you simply don't have a clue.
Nevertheless, we listen to nothing but vitreol about the patent system, the patent examiners and patent lawyers concerning the "obvious" invalidity of this application. Nonsense.
I would be surprised if there were many patent lawyers on Slashdot who are actually knowledgable about this sort of thing, rather than simply jumping to conclusions.
Precisely what "sort of thing" would you have me be knowledgable about? I did my undergraduate work in applied math, my graduate work in computer science, published software for a dozen years.
Now, let me turn the question around. How long have you studied patent law.
The slashdot community thinks that an invention is unworthy of a patent -- all without seeing a single line of any specification or claim. With all due respect, none of us, myself included, can comment on the validity or propriety of an application for a patent until we have seen what in fact is claimed.
Nonetheless, we have already seen posted here vitreolic remarks suggesting USPTO incompetence, unreasonable conduct by the applicant and general remarks about unnamed "abuses" of a Patent system.
I have obtained and enforced patents for clients, and invalidated patents of others. I know what it takes to meet the tremendous burden of showing a patent is invalid, or even the burden for an examiner to make a prima facie case to refuse a claim. Several remarks made here do not come close, and, to be frank, would appear ignorant and empty to any educated student of the patent law.
Several of use who are fighting the fight for real patent reform have had our battles made more difficult, not less, by the conduct of those who randomly assault the USPTO without cause. Such remarks ultimately (and properly) get ignored, and the Office begins to turn a deaf ear to all arguments made for change -- even when they are sound.
The bottom line is this: some patents are valid, and others are not. The determination is made on the merits -- there either is or is not an adequate specification; and there either is or is not invalidating prior art. The very reasonable news story asked for meat, but regrettably all we have seen thus far are whinings, rejecting legitimate arguments of validity as mere "legalese."
For those of you who have undertaken to educate yourselves about the subject of patents and comment on this subject, I regard your comments and cricicisms highly -- you have taught us a great deal, and even where we have disagreed, I have been both enlightened and educated by the discourse. I hope that in time your colleagues will follow your example.