Regardless of the number of laws and restraining orders and judgements one acquires. The item in question will still be legal somewhere on the planet. Can we agree on this? And since a site in Brasil/Taiwan/Nauru whatever is *just* *as* *readily* *accessible* as any other, how can the DVD consortium have any *reasonable expectation* of stopping distribution of DeCSS and its ilk?
No number of asterisks in a/. posting can prevent the extraterritorial application of IP law where permitted. Conduct, even though it may have been legal abroad, may result in an action or criminal cause domestically in many cases. This is a deep and complex body of law -- do not try to do this at home. Though the data may live abroad, always ask this question, where's the beef?
At the end of the day, you can move your data anywhere in an instant, and serve it from anywhere you like. Nevertheless, serving that data into (or exporting it from) the U.S. (and its damned hard to avoid doing that) creates a basis for liability if jurisdiction can be obtained, whether by treaty or otherwise. If any of your property or body (the beef) lives in the U.S., they'll have you for lunch.
There is quite a bit of case law in copyrightland, in particular, concerning whether a defendant can be liable for authorizing infringing activity abroad from some transaction (like a phone call) made from inside the U.S.
EVERY scenario in this arena is highly law- and fact-dependent, and there are some things that can be done that may avoid liability or criminal responsibility. But most people don't want to export their meat (and any property they'd want to keep) as well as their data. Failing to do at least that, it would be highly foolish to undertake any such conduct without solid advice of counsel. And even if you did, it would still be a fine idea to get advice to make sure you are liability- and responsibility-clear.
I have seen dozens of postings in Slashdot recently along the following lines:
Algorithms cannot be patented. No matter what you may think about that; that's the law. The idea that you can't patent an algorithm, but you can patent the concept of implementing that algorithm in software is simply absurd, and we won't get out of this mess until software patents are rejected.
This is a wild overstatement of the law. While it is true that there exists a narrow class of abstract "mathematical algorithms" that are non-patentable per se, the more general statement about algorithms is clearly false. The term, "mathematical algorithm" as used by the courts is not the same as the term is used by "computer scientists," and refers only to claims directed to the most abstract account of a narrow class of mathematical algorithms. This issue has now been well-settled by the courts in Diamond v. Diehr, State Street Bank and the cases, and is no longer considered an open legal question (except, it would seem, on Slashdot).
And even then, the application of an algorithm to a problem (whether in software or otherwise) can be patentable even though the algorithm itself might not be patentable. Indeed, an unobvious selection of a prior art algorithm to solve a particular problem can itself be patentable. The "mathematical algorithm" rule is no more a bar to patents on applications of a "mathematical algorithm" than the "law of nature" rule is a bar to patents on an apparatus that relies on the law of gravity. While it does still have force, the importance and practical import of this rule is still wildly overstated by opponents of software patents.
If you wish to be an effective advocate for your cause, it is imperative that you learn what is, and what is not, the law so that you can criticize it intelligently.
The modern standard is basically, "anything under the sun made by man." A patent claim directed to software is patentable, even if it recites a mathematical algorithm, if it constitutes a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result.'" See AT&T Corp. v. Excel Communications, Inc., No. 98-1338 (Fed. Cir. Apr. 14, 1999).
Patenting an algorhythm is a rediculous concept and needs to be ended as a legal fiction. What would happen if Albert Einstein had patented his theories and formulas? Would every Nuclear powerplant in the world have to pay royalties to his estate?
Actually, his colleague in Chicago, Szilard (sz?) held a bunch of the seminal patents relating to nuclear fission and associated technologies.
And, in case you hadn't heard, every "Nuclear powerplant in the world" did pay many dollars in royalties, directly and indirectly, to patent holders in the underlying technologies during those patent terms.
I seem to recall a group at Watson Labs working on a similar eigenvector-based ranking system for citation analysis. I believe that research was discussed in a Scientific American article sometime in the last year or so.
Is this the same guy, or am I conflating technologies?
The standard is not whether the invention was obvious to "one 'skilled in the art', e.g. a geek'." To the contrary, the standard is whether "the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains." 35 U.S.C. s. 103(a).
The issue is not whether in hindsight an expert would think the issue is obvious, but whether a dull, ordinary, hack familiar with the art without the benefit of knowing the solution -- or even a requirements specification of the problem -- would find the differences obvious.
So what, then, if we are to charge Amazon with invalidity, is the relevant prior art that makes obvious the one-click solution? And if the solution was so obvious, given the need to do it, why wasn't it done by others before Amazon did it? It is interesting to note that B&N's lawyers couldn't come up with a plausible answer to that question during the preliminary injunction hearings. Where is the "clear and convincing" evidence of invalidity, then, apart from the naked assertion of obviousness so frequently asserted in these letters?
I do not assert that invalidating prior art does not exist. I merely note that no one has come close, so far, to presenting any.
Although software itself is not patentable (and should not be), technologies and algorithms definitely are.
The above-quoted statement is a restatement of a common misconcetion about patent law. It mistates the law, at the same time, by overstating and understating the scope of patentable subject matter. It overstates the scope of patentable subject matter, in that there exists a narrow class of abstract "mathematical algorithms" which are non-patentable. It understates that scope because software, "itself," is most certainly patentable in some cases. Claims directed solely to software have been allowed by the PTO and enforced by the Courts under the United States Patent Act.
The modern standard is basically, "anything under the sun made by man." A patent claim directed to software is patentable, even if it recites a mathematical algorithm, if it constitutes a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result.'" See AT&T Corp. v. Excel Communications, Inc., No. 98-1338 (Fed. Cir. Apr. 14, 1999).
If the lawyer properly framed the claims, it is these days almost frivolous to argue the validity of a software patent claim on subject matter grounds. The only issue is the traditional question as to whether the invention was novel, useful and unobvious, as those terms are used in the Patent Act.
The DMCA tech protection provisions are a nightmare that should not have passed. Whatever defenses exists to justify the "balancing of the interests" between the creators, on one hand and those who use and develop from the creations, on the other -- the Congress made no effort to consider them in passing this handout to the IP holders of the world.
It is my hope that the Courts will use cases such as this to shut down he scope of DMCA. In the meanwhile, I (who is widely known in this community to be pro-strong-IP minded in general) find DMCA's provisions in this regard to be an abomination.
The Amazon "One Click" innovation is so obvious as to be laughable, but the notion that business model innovation is protectable under patent law is the big problem. The constitutionality of business model patents needs to be challenged.
These statements are so easy to make, but when placed under the light of actual claims and evidence are much, much harder to prove. While everyone likes to say, "its obvious," no one has yet to produce viable prior art.
Not even the highly qualified patent attorneys representing B&N, who could not even find art sufficient to defeat a preliminary injunction. The standard there is simply to show that the Plaintiff doesn't have a substantial likelihood of prevailing on the merits. At trial, the standard is to prove validity by clear and convincing evidence.
I assure you, whatever you may think about the claims being "obvious," this informal use of the word has nothing whatsoever to do with the term of art as it is used in patent practice, or the relevant language in Title 35, Section 103.
What must be obvious to a person of ordinary skill is not the invention as a whole, but the particular combination of prior art references that "add up to" the claim. First, you have to have some prior art. Then, you have to show that the differences between the prior art would be obvious to a person of ordinary skill in the art -- not to a genius, an expert, or even someone more than moderately good.
Indeed, the obviousness standard as used in the courts cannot rely on an in retrospect analysis of obviousness. Indeed, it cannot rely on a statement of the problem that is solved leading to a "natural" solution. The issue is whether the prior art itself motivates that additional matter.
In my view, the problem is not so much the standards for patentability as their inapplicability in practice to invalidate patents. The "clear and convincing" evidence standard that must be overcome is virtually impossible to overcome. (Imagine six people off the street, taken from their jobs, baffled for weeks by inconsistent and conflicting testimony, given two hours of incomprehensible jury charges -- now tell them that if they have any recurring doubts whether the patent is invalid, they must decide validity in favor of the plaintiff -- well, the result in a complex case is settled before you have empaneled the jury unless the plaintiff or her lawyer enrages them in some way). One solution would be to relax the standard to ordinary "proponderance of the evidence," for art that is not less relevant than that studied by the PTO.
Luckily, you are not in violation of patent law unless you're selling something. I think. But even if i'm wrong, the code will still be out there, right?:)
Wrong. You infringe a patent by making, using, selling, offering for sale or importing into the United States anything practicing the invention as claimed. United States Code, Title 35, Section 217(a).
Reexamination (the process of subjecting an issued patent to further review) is probably one of the best and worst ideas the Congress created in recent years. It has substantial upside to make the patent system self-healing, but at present, it isn't enough.
For some intuition, this is precisely the process by which the Compton's patent was neutered.
Here's the deal. Reexam can happen three ways: (1) the applicant asks for reexam; (2) a third party asks for reexam; or (3) the commissioner asks for reexam.
What happens is this: if the Office decides to reexamine the patent, it is treated for these purposes as thought the patent had never issued. No presumption of validity. The examiner makes another search (help them! help them! this may be the last chance!) and issues another official action, probably rejecting all the claims. This is the upside.
The downside is this: the applicant may then Amend his claims to narrow the scope of his patent to avoid the prior art. Unlike a trial on the patent, where a binary valid/invalid decision can be made -- and in which the patent can disappear forever, reexam permits a good lawyer (and he's nuts if he doesn't get the best) to tailor the patent to just barely distinguish the prior art, but still "read on" a meaningful royalty base.
There are limits to what he can do, because he is stuck with his present patent specification. (He can't make up new limitations out of whole cloth -- each element of the new claim must be drawn from the spec). But as I said, a great lawyer could make a deadly asset out of what is presently a harmless patent.
Harmless? How can it be harmless? Well, its like this: McDonnell Douglas had a patent which, if valid, in the next twelve months or so is like having the right to a royalty on sex. If it were what it purports to be, it would be worth untold zillions. Instead of putting every legal body behind a licensing program, they assigned it to an employee. What do you think that highly sophisticated company thought about its validity/enforceability?
At last report, no one has bought a license from this guy. This is because no one has taken his claims seriously, not even the small potatoes folks. No small entity is going to be terrorized by him, because the first defendant will be helped by every major economic force on the planet to assure no powerful judgment of validity is made. In short, this patent is harmless (unlike run-of-the-mill patents -- with respect to which small guys would be on their own and forced to capitulate rather than go broke fighting the good fight) for the ironic reason that, if it were valid and enforceable, it would be too great a commercial threat.
Testimony to this is that the patent issued years ago and has yet to be a meaningful commercial threat.
Bottom line, for a narrow class of patents, reexamination make self-healing the limitations of USPTO novelty-standard examination.
But for many reasons, the process is practically useless for the rest of them. It is absolutely true that reexamination often serves to make a patent much, much stronger. The applicant can disclose all prior art that defendants have raised, distinguish it on commercially irrelevant grounds, and then rewrite the claims to read directly on the prospective defendant's righs. Once surviving the examination, the new patent, as amended, is VERY difficult to avoid, both on infringement and on validity grounds.
Third party reexamination is not effective, because the applicant, not the requestor, controls the process. While the requestor gets to play a bit (and under a recent revision, can play a bit more), the applicant effectively controls the show, and gets to use amendments to "shuck and dive" around any argument it can't win straight up.
Recent attempts to empower the Office to make the process more practically useful have been vehemently opposed by the so-called "independent inventor" lobby. I believe their conduct to be misguided -- certainly for the software patent market. Strengthening the reexam process to be more generally useful would go a LONG WAY toward mitigating the harms of software patents issued as the result of limited examination.
More important, there is a substantial interest in the Congress to do this -- and a large lobby that would support it. Reform has been proposed and seriously debated, and limited versions have been passed. If a strong technical lobby were also to get behind it (particularly the open source community), it would go a long way toward neutralizing the "little guy" appeal of the independent inventor lobby. More important, if the position were stated articulately, it would be an EXCELLENT foothold to begin making the case against sotware patents generally.
So, there it is. Reexam is good for a limited class of off-the-scale-dangerous patents, like Comptons, the bunny and the Y2K patent. Indeed, for such patents the process is virtually self-healing. It has dangers, and reexam (or reissue) is a strategy this patent owner should have considered in the first instance.
More important, getting behind the PTO on reexamination, and pushing for more effective Reexamination reform in the Congress would also be an EXCELLENT political vehicle to begin the process of making real patent reform changes.
Another observation. If the slashdot community wanted to target particular patents, and found slam-dunk prior art, a reasonably inexpensive means can be found to force those patents into remission. Perhaps we ought to get our leaders and foundations to invest reources investigating this little-used process to shut down egregious patents that are not only "bad for the community," but also genuinely "bad for the patent system because they are clearly invalid." This might be useful, particularly for patents that genuinely threaten the open source community.
Microsoft has already been on the business end of a few patent infringement matters, lost one of them (STAC) *IN SPADES*, won one of them (Rehman) with a determination of invalidity on techical grounds, and bought the company (Apple) to settle another.
Here in/.land, invalidity is determined by lockstep ideology and naked allegations of obviousness. In practice, however, one does not argue invalidity in those terms -- you would lose ab initio.
It is common for companies in patent-intensive businesses to be both plaintiffs and defendants, with little consequences derived from positions they have taken in earlier matters. Microsoft will win or lose based upon prior art they actually find and demonstrate, or upon inequitable conduct they can show, or upon proof of non-infringement. These things are argued case by case and things stated in one rarely have an impact on another, unless it is another case relating to the same patent or family of patents.
Arguing merely that the patent is a *bad*, nasty software patent is not something that they will do for three important reasons: (i) it cannot win the case; it cannot win the case; and (ii) it cannot win the case.
Hopefully, Amazon will get slapped with a court settlement (judges can be vicious if they sense a big corporation is abusing the system to the detriment of the court system's reputation and power -- let's hope Amazon has to pay court costs and punitive damages), or burned by the boycott, and we'll teach those shareholders to ask their directors to avoid these tactics.
That's a pipe dream.
The downside of bringing a meritless patent action would be an award of fees and court costs. There would be no award of punitive damages unless a counterclaim is brought in the case for which the same would be appropriate.
However, after obtaining a preliminary injunction, there is virtually no chance even of an award of fees and costs on the ground that the lawsuit was an "exceptional case," unless informatin was willfully withheld during the P.I. hearings.
Unlike trademarks, where the strength of the mark is compromised unless vigorously enforced, patent assets can be enforced selectively without reducing the enforceability of the rights. "Jus Tertii" (the "Hey, they did it, why can't I" defense) is not available against a claim of patent infringement.
Many patents are routinely infringed with impunity -- and the patent owner is free to decide whether the substantial costs of proceeding with an action outweigh the benefits. Sometimes, a patentee will put several defendants on notice and take them on one at a time. All of these are fine, unless the patentee seeks injunctive relief.
The big issue, however, is that these internet stock market caps are (to some extent) based upon the false comfort given by patent ownership. If folks make the threat of a claim for infringement a joke by their own refusal to litigate, the stock may plummet to the extent its valuation was based on the "power" of the patents. This is a new factor in these matters, and not one to be sneezed at.
It's patently (no pun intended) absurd to consider paying royalties to the Archimedes estate -- the idea just wouldn't hold water. (pun quite intended)
And no patent advocate would assert that it makes sense either. No patent would be granted on Archimedes' work, per se (although patents on improvements and developments therefrom issue every Tuesday at noon).
The patent system grants patents for a limited term, after which the idea, memorialized in the patent specification, falls into the public domain.
Patents, by definition, cannot apply to something that has already been "freely given," so to speak. If an invention is published by an inventor more than one year prior to filing an application or prior to the invention, the patent will be barred. Outside the U.S., the standard is more strict, where the one-year grace period does not apply under an absolute novelty standard.
The justifications for this limited monopoly of the patent grant is clearly controversial in slashdot circles, but its legitimacy is widely acknowledged elsewhere. To say, without more, that the system is wrong based on straw men propositions not taken by advocates of the patent system, is to fail to join the issues.
No one should defend bad --read invalid-- patents. They are a blight upon the system and upon the society against whom it is enforced. Extraordinary steps are due to improve the system. But this more fundamental charge -- that patents are themselves unjustified, seems based, at least in part, on assumptions about the system that are not in evidence.
There is no way that any of these claims will ever hold up in court! All you guys are doing is making a laugh of your selves in front of the global community.
Hey, despite the claims, they already have "held up in court." Barnes & Noble is presently subject to a Preliminary Injunction, an extraordinary step in a case of this kind. Significantly, counsel for Barnes & Noble, with virtually infinite assets at their disposal, were unable to produce any sufficient to avoid a preliminary injunction.
The standard for a defendant to avoid a preliminary injunction --showing the absence of a substantial likelihood that plaintiff will prevail-- is much, much, much less than will be necessary to invalidate the patent on summary judgment or trial: to prove invaidity by clear and convincing evidence. The inability to satisfy the court at this early stage suggests that no readily available prior art exists.
Perhaps something good will turn up in the months to come, but this isn't a good sign for those who "feel" that the patent is "obviously" invalid.
It is common to see claims of invalidity being made in this forum. It is much more difficult to prove them. B&N couldn't even show that there is a cloud on the substantial likelihood of Amazon's patent being valid, let alone meet the burden of proof it would need to overcome at trial.
If the claims are invalid, where is the prior art? When you see such claims, consider whether its based on the merits, ow whether its all just wishful thinking by a lockstep ideologue.
Further, as to the superiority of patents across the pond, only time will tell if the foreign counterparts are found to be enforceable.
I, for one, concur with the sense that the amazon claims "feel" too broad. But it is irresponsible to merely assert, without more, that the claims "will never stand up." Time will tell. So far, all evidence is to the contrary.
It is comforting to have ACLU v. Miller as a cyber-leg-up into the Supreme Court free speech anonymity case, but it isn't enough. The Anonymity cases do NOT proffer absolute rights, and there have been some very dangerous trends.
Notwithstanding what we may think of the Klu Klux Klan, the Second Circuit ratification of Giuliani's enforcement of New York's gag law is a harbinger of dangers to come. There, claims of anonymity during a pilitical demonstration took the back seat to claims that folks are less likely to do harm if they are "unmasked."
The difference is that Georgia didn't recite its "compelling governmental interest." Regrettably, Miller may in time stand more as a roadmap how to make an enforceable cyber-mask law than as proof that the right to anonymity exists.
The long and short of it is that we must remain politically vigilant. You never need to test the constitutionality of a law that doesn't pass. Rather than using "rights" language ("you can't do this because its unconstitutional"), we must use the "policy" language that legislators understand ("you can't do this because its bad for America and bad for you, and because you'll never get reelected if you vote for it").
We must make our case for privacy on the net in terms Americans understand, before the debate is seized and controlled by the censors. It is we who must seize the initiative, and create a status quo of public sympathy that the censors must overcome.
Cybermask laws are the next CDA -- count on it! The Courts now have told the censors how to do it, and they are just waiting for the next big opportunity to make it happen. Let's seize the initiative before they have their chance.
The last time a manufacturer was meaningfully alleged to be responsible for piracy resulting from the use of new technology was the famous Betamax case, which went all the way to the Supreme Court.
The Supreme Court held that a defendant CANNOT be guilty for contributing to the infringement by a third party, whenever the apparatus being sold is capable of a substantial non-infringing use -- even if he has knowledge that the piracy might occur. In Betamax case, the Supes held that "time-shifting" broadcast TV by a consumer is fair use, and thus, there existed substantial non-infringing uses.
Of course, Sony lost to the Supreme Court of the Marketplace in the long run, but they set a virtually unassailable precedent for those who follow: if the thing can be used for non-infringing purposes, there won't be responsibility unless the defendant, itself, is actually doing the piracy.
There has been no trial, no finding of fact, and no consideration of the merits of Amazon's case by either a judge or a jury. Don't get too worried too quickly.
A preliminary injunction can only be obtained after making a substantial showing of likelihood on the merits. In the present case, it is highly likely that a hearing was held, and some evidence presented in addition to argument.
As a practical matter, the readers should understand that it is usually very difficult to obtain a preliminary injunction in a patent case -- far more difficult than with Copyright, Trademark or trade secrets.
In part, this is because even the flimsiest showing of invalidity can undercut the "substantial likelihood of success," notwithstanding the presumption of validity afforded a patent at trial. Ordinarily, technical arguments of invalidity are useless, except to make a record for the Federal Circuit. However, at a P.I., these arguments are golden sources of "no substantial likelihood."
Secondly, a defendant can usually blow a cloud of smoke concerning the claim construction of the patent in question -- particularly for software patents -- even for the broadest sounding claims.
Finally, it is often the case that a showing of irreparable harm is effectively countered with the argument that money damages can be adequate, or with a balancing of harms argument; particularly when balancing the injunction against the costs of pulling a significant commercial website.
As a practical matter, getting P.I. in a patent case is a legal slam-dunk -- a rare and significant accomplishment. Amazon's attorneys did very well for their client yesterday. Obtaining P.I. in a patent case tends to change the entire tenor of the proceedings. This case may well settle soon.
TRIPS is seriously old news. It was the result of extended negotiations and public debate over a period of years beginning in the early 1990's (and some time before then), and was ultimately adopted in January of 1995. These terms were negotiated in part through the USTR, then Mickey Kantor (sp?) and the USPTO Commissioner, Bruce Lehman, neither of whom are still in office.
As with most trade agreements, there can be found within it some good and some bad. But whatever else can be said about TRIPS, the issues raised there are not new ones. Moreover, to the extent that we have been signed on since the mid-90's, its sort of a done deal.
Several of our colleagues have observed that class actions of this kind are being brought by law firms with only $$$ in their eyes. Yea, verily this is probably the truth. Class action plaintiff firms are indeed an entrepreneurial bunch.
But several of these messages suggested that the truth of this proposition also implies that class actions so brought do not serve the purposes of justice. Here (though I primarily practice law on behalf of commercial defendants in such actions), I will part company with my/. colleagues and will speak on behalf of my bretheren at the plaintiff's bar.
It is not uncommon for businesses to engage in commercial activities in violation of the law and the policy set by legislatures, rulemakers and the courts. In many cases, there is no "real harm" to any one member of the public, but hundreds of thousands of dollars can be made, scattering the costs over millions and tens of millions of customers, each suffing only at most a few pennies or dollars of damage at most. A primary example occurs in the mis-collection of sales taxes from consumers.
Indeed, few people would even monitor this conduct, least of all the government, whose enforcement resources are limited at the end of the day. Were there no enforcement by the government, why would businesses tow the line?
The answer: because there exists a small cabal of class action plaintiff law firms who specialize in this kind of practice. They investigate these micro-violations, and bring civil actions on behalf of the consumers who were overcharged, each only pennies at a time.
True, consumers will get a pittance back at the end of the day compared to what was taken, but they will get something they would not have gotten otherwise, and at little cost and with minimum disruption to their lives. More important, the bringing of such actions STOPS the bad practices, and deters companies from "overreaching by neglect." It is easy to look the other way when your "mistakes" are making you money.
If such actions could not be brought, there would be no check on this kind of microviolation. Class action disputes of this kind (see also qui tam actions) are the only meaningful engine to assure enforcement of certain kinds of social policies.
Why let lawyers get rich at the expense of a Microsoft or other company, with little revenue actually flowing to the victims? The answer is simple: so that the company will be deterred from microviolation conduct in the future. Here is where you will find the justice.
Think ahead: a statutory class action remedy for excessive spamming by or on behalf of commercial entities!
PLEASE learn some more about Co$ and how they operate. They go out of their way to harass anyone who criticizes them.
With all due respect, as a denizen of the Tampa Bay arena, I have been following the matter closely for years. Disagreement with your point of view does not equate to innorance.
RTC has taken some strong positions, to be sure, and has unrelentingly exploited the legal process to abuse those who has stepped in the way of its actual rights. However, you will note, they have also won a great number of these cases on the merits.
I took substantial heat, indeed derision, for noting in alt.religion.scientology that the copyright case against Lerma was not only strong, but likely to prevail on summary judgment. Even after that was exactly what happened, there was still overwhelming denial of the merits of the case. Such is the difficulty of religious disputes.
I agree they go out of their way to attack their critics, and I agree its unconcionable. This doesn't mean that everything a critic does, particularly beyond the bounds, is legal and justified, or that every lawsuit brought by the church is meritless, even if it was brought for the purpose of harassment as critics allege.
Which brings me back to the points raised in my original posting.
To understand why, one must understand the purpose of a mediation. In a mediation, the mediator serves as a facilitator to help the parties to find a settlement when, in fact, they each have minimum positions with which the other party can live. Very often, two adversarial parties are unable to break the rhythm of posturing and stating their strongest views, making it impossible to narrow the gap.
A mediator typically takes each party aside, points out civilly what of their posturing is bullshit, reminds them civilly of the risks of proceeding and asks them confidentially to disclose their best position (to the extent they feel comfortable doing so). A really good mediator can help the parties to feel comfortable reducing their posturing so they can get down to real-life horsetrading and settle the damn dispute.
Judge Posner's views and politics are decidedly pro-Microsoft in these facts. Judge Posner would probably argue that there is no such thing as a real "barrier to entry," the very fulcrum of Judge Jackson's FOF. But so what? This is precisely why he is the perfect choice.
Judge Posner's views, whatever you may think of them, do not diminish his stature. He is the lion of antitrust law and jurisprudence (particularly given that Judge Bork has hung up his robes). He is also brilliant (though I don't agree with a great deal of his writings or analyis), and a remarkably fast and analytical thinker.
In short, no one is going to bullshit him. He will have comebacks, regardless of who is trying to stake out their position. And the setting aside of bullshit is the fuel of mediation. Posner can deflate the theory of the government's position, when in caucus with the government, and he can destroy Microsoft's confidence in its position when in caucus with Microsoft. Why but Posner could really accomplish this in view of these findings of facts?
The purpose of mediation is to achieve a settlement when it is possible (typically one with both parties holding their stomachs as they sign), or to declare an impasse with as little pain as possible.
True, Posner gives Microsoft a sense of an "edge" going in. How do you think the government feels about the findings of facts? A "settlement session" where the government dictates terms may be satisfying for the egos of the government, but it will not achieve a settlement. Posner can balance things for the purposes of mediation, so that the horsetrading can happen -- if it can happen at all.
We really don't have sufficient facts to judge what happened here. It is odd that a single letter would suffice to make an ISP pull out for reasons of a threat of trademark infringement:
1) The DMCA, which addresses only third-party liability for Copyright claims, doesn't provide either the safe-harbour for pulling, or the defense against the customer's contract claim unless the letter also alleged copyright claims.
2) The domain name "xemu.com" doesn't appear to be a trademark of RTI or related entities. How was the site using the words? Mere denominative use of a designation isn't trademark infringement, any more than our use of Microsoft in discussions about Microsoft would be infringement. If that is the alpha and omega of their claims, and the defendant can show this was merely an attempt to gag criticism, they are risking serious downsides if they lose -- in particular an award of attorney fees for an exceptional case.
It is true that some xxxsucks sites went over the line. (See the jews-for-jesus.com case) But those were cases where the mark was clearly used in a non-denominative fashion.
Accordingly, this just doesn't add up. I can't see the ISP risking a contract claim by just pulling the site (since unprotected by DMCA), and it would be odd for RTC to step out on this very feeble legal limb. (Their copyright claims in previous cases, however distasteful, had real, legal teeth -- these seem toothless in comparison).
when it comes down to it, this is going to have to be made as a rational business decision on your part.
You need to do two things: (1) Assess the value (aesthetically, commercially or otherwise) to you of keeping the domain name; and (2) Assess the merits of Purdue's claims.
This much is clear, you cannot answer the latter question effectively without getting good advice from a competent lawyer, and in this case an expert on the subject will be far more efficient than a low-end techno-newbie, even at one-third the rate.
I can assure that no contributor to slashdot, lawyer or non-laywer can give you sound advice based solely upon the information provided, so should you decide to act upon any advice you receive here, be assured you will get in value precisely what you paid for the advice. Might as well flip a coin.
But if you do complete those analyses, you may discover that the matter can be dismissed with a letter, or even if it cannot be, that it would be worthwhile to fight (or try to outstare the other side) with respect to a genuine lawsuit. From this information, you can actually plan and execute a strategy, rather than merely react to the letter.
For your own good, Its probably best not to respond to the letter until you have obtained advice of competent counsel, except perhaps to advise the other side that you will communicate with them after you have obtained and received advice of counsel.
Slashdot Mirror
Regardless of the number of laws and restraining orders and judgements one acquires. The item in question will still be legal somewhere on the planet. Can we agree on this? And since a site in Brasil/Taiwan/Nauru whatever is *just* *as* *readily* *accessible* as any other, how can the DVD consortium have any *reasonable expectation* of stopping distribution of DeCSS and its ilk?
/. posting can prevent the extraterritorial application of IP law where permitted. Conduct, even though it may have been legal abroad, may result in an action or criminal cause domestically in many cases. This is a deep and complex body of law -- do not try to do this at home. Though the data may live abroad, always ask this question, where's the beef?
No number of asterisks in a
At the end of the day, you can move your data anywhere in an instant, and serve it from anywhere you like. Nevertheless, serving that data into (or exporting it from) the U.S. (and its damned hard to avoid doing that) creates a basis for liability if jurisdiction can be obtained, whether by treaty or otherwise. If any of your property or body (the beef) lives in the U.S., they'll have you for lunch.
There is quite a bit of case law in copyrightland, in particular, concerning whether a defendant can be liable for authorizing infringing activity abroad from some transaction (like a phone call) made from inside the U.S.
EVERY scenario in this arena is highly law- and fact-dependent, and there are some things that can be done that may avoid liability or criminal responsibility. But most people don't want to export their meat (and any property they'd want to keep) as well as their data. Failing to do at least that, it would be highly foolish to undertake any such conduct without solid advice of counsel. And even if you did, it would still be a fine idea to get advice to make sure you are liability- and responsibility-clear.
I have seen dozens of postings in Slashdot recently along the following lines:
Algorithms cannot be patented. No matter what you may think about that; that's the law. The idea that you can't patent an algorithm, but you can patent the concept of implementing that algorithm in software is simply absurd, and we won't get out of this mess until software patents are rejected.
This is a wild overstatement of the law. While it is true that there exists a narrow class of abstract "mathematical algorithms" that are non-patentable per se, the more general statement about algorithms is clearly false. The term, "mathematical algorithm" as used by the courts is not the same as the term is used by "computer scientists," and refers only to claims directed to the most abstract account of a narrow class of mathematical algorithms. This issue has now been well-settled by the courts in Diamond v. Diehr, State Street Bank and the cases, and is no longer considered an open legal question (except, it would seem, on Slashdot).
And even then, the application of an algorithm to a problem (whether in software or otherwise) can be patentable even though the algorithm itself might not be patentable. Indeed, an unobvious selection of a prior art algorithm to solve a particular problem can itself be patentable. The "mathematical algorithm" rule is no more a bar to patents on applications of a "mathematical algorithm" than the "law of nature" rule is a bar to patents on an apparatus that relies on the law of gravity. While it does still have force, the importance and practical import of this rule is still wildly overstated by opponents of software patents.
If you wish to be an effective advocate for your cause, it is imperative that you learn what is, and what is not, the law so that you can criticize it intelligently.
The modern standard is basically, "anything under the sun made by man." A patent claim directed to software is patentable, even if it recites a mathematical algorithm, if it constitutes a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result.'" See AT&T Corp. v. Excel Communications, Inc., No. 98-1338 (Fed. Cir. Apr. 14, 1999).
Patenting an algorhythm is a rediculous concept and needs to be ended as a legal fiction. What would happen if Albert Einstein had patented his theories and formulas? Would every Nuclear powerplant in the world have to pay royalties to his estate?
Actually, his colleague in Chicago, Szilard (sz?) held a bunch of the seminal patents relating to nuclear fission and associated technologies.
And, in case you hadn't heard, every "Nuclear powerplant in the world" did pay many dollars in royalties, directly and indirectly, to patent holders in the underlying technologies during those patent terms.
I seem to recall a group at Watson Labs working on a similar eigenvector-based ranking system for citation analysis. I believe that research was discussed in a Scientific American article sometime in the last year or so.
Is this the same guy, or am I conflating technologies?
The standard is not whether the invention was obvious to "one 'skilled in the art', e.g. a geek'." To the contrary, the standard is whether "the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains." 35 U.S.C. s. 103(a).
The issue is not whether in hindsight an expert would think the issue is obvious, but whether a dull, ordinary, hack familiar with the art without the benefit of knowing the solution -- or even a requirements specification of the problem -- would find the differences obvious.
So what, then, if we are to charge Amazon with invalidity, is the relevant prior art that makes obvious the one-click solution? And if the solution was so obvious, given the need to do it, why wasn't it done by others before Amazon did it? It is interesting to note that B&N's lawyers couldn't come up with a plausible answer to that question during the preliminary injunction hearings. Where is the "clear and convincing" evidence of invalidity, then, apart from the naked assertion of obviousness so frequently asserted in these letters?
I do not assert that invalidating prior art does not exist. I merely note that no one has come close, so far, to presenting any.
Although software itself is not patentable (and should not be), technologies and algorithms definitely are.
The above-quoted statement is a restatement of a common misconcetion about patent law. It mistates the law, at the same time, by overstating and understating the scope of patentable subject matter. It overstates the scope of patentable subject matter, in that there exists a narrow class of abstract "mathematical algorithms" which are non-patentable. It understates that scope because software, "itself," is most certainly patentable in some cases. Claims directed solely to software have been allowed by the PTO and enforced by the Courts under the United States Patent Act.
The modern standard is basically, "anything under the sun made by man." A patent claim directed to software is patentable, even if it recites a mathematical algorithm, if it constitutes a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result.'" See AT&T Corp. v. Excel Communications, Inc., No. 98-1338 (Fed. Cir. Apr. 14, 1999).
If the lawyer properly framed the claims, it is these days almost frivolous to argue the validity of a software patent claim on subject matter grounds. The only issue is the traditional question as to whether the invention was novel, useful and unobvious, as those terms are used in the Patent Act.
The DMCA tech protection provisions are a nightmare that should not have passed. Whatever defenses exists to justify the "balancing of the interests" between the creators, on one hand and those who use and develop from the creations, on the other -- the Congress made no effort to consider them in passing this handout to the IP holders of the world.
It is my hope that the Courts will use cases such as this to shut down he scope of DMCA. In the meanwhile, I (who is widely known in this community to be pro-strong-IP minded in general) find DMCA's provisions in this regard to be an abomination.
The Amazon "One Click" innovation is so obvious as to be laughable, but the notion that business model innovation is protectable under patent law is the big problem. The constitutionality of business model patents needs to be challenged.
These statements are so easy to make, but when placed under the light of actual claims and evidence are much, much harder to prove. While everyone likes to say, "its obvious," no one has yet to produce viable prior art.
Not even the highly qualified patent attorneys representing B&N, who could not even find art sufficient to defeat a preliminary injunction. The standard there is simply to show that the Plaintiff doesn't have a substantial likelihood of prevailing on the merits. At trial, the standard is to prove validity by clear and convincing evidence.
I assure you, whatever you may think about the claims being "obvious," this informal use of the word has nothing whatsoever to do with the term of art as it is used in patent practice, or the relevant language in Title 35, Section 103.
What must be obvious to a person of ordinary skill is not the invention as a whole, but the particular combination of prior art references that "add up to" the claim. First, you have to have some prior art. Then, you have to show that the differences between the prior art would be obvious to a person of ordinary skill in the art -- not to a genius, an expert, or even someone more than moderately good.
Indeed, the obviousness standard as used in the courts cannot rely on an in retrospect analysis of obviousness. Indeed, it cannot rely on a statement of the problem that is solved leading to a "natural" solution. The issue is whether the prior art itself motivates that additional matter.
In my view, the problem is not so much the standards for patentability as their inapplicability in practice to invalidate patents. The "clear and convincing" evidence standard that must be overcome is virtually impossible to overcome. (Imagine six people off the street, taken from their jobs, baffled for weeks by inconsistent and conflicting testimony, given two hours of incomprehensible jury charges -- now tell them that if they have any recurring doubts whether the patent is invalid, they must decide validity in favor of the plaintiff -- well, the result in a complex case is settled before you have empaneled the jury unless the plaintiff or her lawyer enrages them in some way). One solution would be to relax the standard to ordinary "proponderance of the evidence," for art that is not less relevant than that studied by the PTO.
Luckily, you are not in violation of patent law unless you're selling something. I think. But even if i'm wrong, the code will still be out there, right? :)
Wrong. You infringe a patent by making, using, selling, offering for sale or importing into the United States anything practicing the invention as claimed. United States Code, Title 35, Section 217(a).
Reexamination (the process of subjecting an issued patent to further review) is probably one of the best and worst ideas the Congress created in recent years. It has substantial upside to make the patent system self-healing, but at present, it isn't enough.
For some intuition, this is precisely the process by which the Compton's patent was neutered.
Here's the deal. Reexam can happen three ways: (1) the applicant asks for reexam; (2) a third party asks for reexam; or (3) the commissioner asks for reexam.
What happens is this: if the Office decides to reexamine the patent, it is treated for these purposes as thought the patent had never issued. No presumption of validity. The examiner makes another search (help them! help them! this may be the last chance!) and issues another official action, probably rejecting all the claims. This is the upside.
The downside is this: the applicant may then Amend his claims to narrow the scope of his patent to avoid the prior art. Unlike a trial on the patent, where a binary valid/invalid decision can be made -- and in which the patent can disappear forever, reexam permits a good lawyer (and he's nuts if he doesn't get the best) to tailor the patent to just barely distinguish the prior art, but still "read on" a meaningful royalty base.
There are limits to what he can do, because he is stuck with his present patent specification. (He can't make up new limitations out of whole cloth -- each element of the new claim must be drawn from the spec). But as I said, a great lawyer could make a deadly asset out of what is presently a harmless patent.
Harmless? How can it be harmless? Well, its like this: McDonnell Douglas had a patent which, if valid, in the next twelve months or so is like having the right to a royalty on sex. If it were what it purports to be, it would be worth untold zillions. Instead of putting every legal body behind a licensing program, they assigned it to an employee. What do you think that highly sophisticated company thought about its validity/enforceability?
At last report, no one has bought a license from this guy. This is because no one has taken his claims seriously, not even the small potatoes folks. No small entity is going to be terrorized by him, because the first defendant will be helped by every major economic force on the planet to assure no powerful judgment of validity is made. In short, this patent is harmless (unlike run-of-the-mill patents -- with respect to which small guys would be on their own and forced to capitulate rather than go broke fighting the good fight) for the ironic reason that, if it were valid and enforceable, it would be too great a commercial threat.
Testimony to this is that the patent issued years ago and has yet to be a meaningful commercial threat.
Bottom line, for a narrow class of patents, reexamination make self-healing the limitations of USPTO novelty-standard examination.
But for many reasons, the process is practically useless for the rest of them. It is absolutely true that reexamination often serves to make a patent much, much stronger. The applicant can disclose all prior art that defendants have raised, distinguish it on commercially irrelevant grounds, and then rewrite the claims to read directly on the prospective defendant's righs. Once surviving the examination, the new patent, as amended, is VERY difficult to avoid, both on infringement and on validity grounds.
Third party reexamination is not effective, because the applicant, not the requestor, controls the process. While the requestor gets to play a bit (and under a recent revision, can play a bit more), the applicant effectively controls the show, and gets to use amendments to "shuck and dive" around any argument it can't win straight up.
Recent attempts to empower the Office to make the process more practically useful have been vehemently opposed by the so-called "independent inventor" lobby. I believe their conduct to be misguided -- certainly for the software patent market. Strengthening the reexam process to be more generally useful would go a LONG WAY toward mitigating the harms of software patents issued as the result of limited examination.
More important, there is a substantial interest in the Congress to do this -- and a large lobby that would support it. Reform has been proposed and seriously debated, and limited versions have been passed. If a strong technical lobby were also to get behind it (particularly the open source community), it would go a long way toward neutralizing the "little guy" appeal of the independent inventor lobby. More important, if the position were stated articulately, it would be an EXCELLENT foothold to begin making the case against sotware patents generally.
So, there it is. Reexam is good for a limited class of off-the-scale-dangerous patents, like Comptons, the bunny and the Y2K patent. Indeed, for such patents the process is virtually self-healing. It has dangers, and reexam (or reissue) is a strategy this patent owner should have considered in the first instance.
More important, getting behind the PTO on reexamination, and pushing for more effective Reexamination reform in the Congress would also be an EXCELLENT political vehicle to begin the process of making real patent reform changes.
Another observation. If the slashdot community wanted to target particular patents, and found slam-dunk prior art, a reasonably inexpensive means can be found to force those patents into remission. Perhaps we ought to get our leaders and foundations to invest reources investigating this little-used process to shut down egregious patents that are not only "bad for the community," but also genuinely "bad for the patent system because they are clearly invalid." This might be useful, particularly for patents that genuinely threaten the open source community.
Microsoft has already been on the business end of a few patent infringement matters, lost one of them (STAC) *IN SPADES*, won one of them (Rehman) with a determination of invalidity on techical grounds, and bought the company (Apple) to settle another.
/.land, invalidity is determined by lockstep ideology and naked allegations of obviousness. In practice, however, one does not argue invalidity in those terms -- you would lose ab initio.
Here in
It is common for companies in patent-intensive businesses to be both plaintiffs and defendants, with little consequences derived from positions they have taken in earlier matters. Microsoft will win or lose based upon prior art they actually find and demonstrate, or upon inequitable conduct they can show, or upon proof of non-infringement. These things are argued case by case and things stated in one rarely have an impact on another, unless it is another case relating to the same patent or family of patents.
Arguing merely that the patent is a *bad*, nasty software patent is not something that they will do for three important reasons: (i) it cannot win the case; it cannot win the case; and (ii) it cannot win the case.
Hopefully, Amazon will get slapped with a court settlement (judges can be vicious if they sense a big corporation is abusing the system to the detriment of the court system's reputation and power -- let's hope Amazon has to pay court costs and punitive damages), or burned by the boycott, and we'll teach those shareholders to ask their directors to avoid these tactics.
That's a pipe dream.
The downside of bringing a meritless patent action would be an award of fees and court costs. There would be no award of punitive damages unless a counterclaim is brought in the case for which the same would be appropriate.
However, after obtaining a preliminary injunction, there is virtually no chance even of an award of fees and costs on the ground that the lawsuit was an "exceptional case," unless informatin was willfully withheld during the P.I. hearings.
Unlike trademarks, where the strength of the mark is compromised unless vigorously enforced, patent assets can be enforced selectively without reducing the enforceability of the rights. "Jus Tertii" (the "Hey, they did it, why can't I" defense) is not available against a claim of patent infringement.
Many patents are routinely infringed with impunity -- and the patent owner is free to decide whether the substantial costs of proceeding with an action outweigh the benefits. Sometimes, a patentee will put several defendants on notice and take them on one at a time. All of these are fine, unless the patentee seeks injunctive relief.
The big issue, however, is that these internet stock market caps are (to some extent) based upon the false comfort given by patent ownership. If folks make the threat of a claim for infringement a joke by their own refusal to litigate, the stock may plummet to the extent its valuation was based on the "power" of the patents. This is a new factor in these matters, and not one to be sneezed at.
It's patently (no pun intended) absurd to consider paying royalties to the Archimedes estate -- the idea just wouldn't hold water. (pun quite intended)
And no patent advocate would assert that it makes sense either. No patent would be granted on Archimedes' work, per se (although patents on improvements and developments therefrom issue every Tuesday at noon).
The patent system grants patents for a limited term, after which the idea, memorialized in the patent specification, falls into the public domain.
Patents, by definition, cannot apply to something that has already been "freely given," so to speak. If an invention is published by an inventor more than one year prior to filing an application or prior to the invention, the patent will be barred. Outside the U.S., the standard is more strict, where the one-year grace period does not apply under an absolute novelty standard.
The justifications for this limited monopoly of the patent grant is clearly controversial in slashdot circles, but its legitimacy is widely acknowledged elsewhere. To say, without more, that the system is wrong based on straw men propositions not taken by advocates of the patent system, is to fail to join the issues.
No one should defend bad --read invalid-- patents. They are a blight upon the system and upon the society against whom it is enforced. Extraordinary steps are due to improve the system. But this more fundamental charge -- that patents are themselves unjustified, seems based, at least in part, on assumptions about the system that are not in evidence.
There is no way that any of these claims will ever hold up in court! All you guys are doing is making a laugh of your selves in front of the global community.
Hey, despite the claims, they already have "held up in court." Barnes & Noble is presently subject to a Preliminary Injunction, an extraordinary step in a case of this kind. Significantly, counsel for Barnes & Noble, with virtually infinite assets at their disposal, were unable to produce any sufficient to avoid a preliminary injunction.
The standard for a defendant to avoid a preliminary injunction --showing the absence of a substantial likelihood that plaintiff will prevail-- is much, much, much less than will be necessary to invalidate the patent on summary judgment or trial: to prove invaidity by clear and convincing evidence. The inability to satisfy the court at this early stage suggests that no readily available prior art exists.
Perhaps something good will turn up in the months to come, but this isn't a good sign for those who "feel" that the patent is "obviously" invalid.
It is common to see claims of invalidity being made in this forum. It is much more difficult to prove them. B&N couldn't even show that there is a cloud on the substantial likelihood of Amazon's patent being valid, let alone meet the burden of proof it would need to overcome at trial.
If the claims are invalid, where is the prior art? When you see such claims, consider whether its based on the merits, ow whether its all just wishful thinking by a lockstep ideologue.
Further, as to the superiority of patents across the pond, only time will tell if the foreign counterparts are found to be enforceable.
I, for one, concur with the sense that the amazon claims "feel" too broad. But it is irresponsible to merely assert, without more, that the claims "will never stand up." Time will tell. So far, all evidence is to the contrary.
It is comforting to have ACLU v. Miller as a cyber-leg-up into the Supreme Court free speech anonymity case, but it isn't enough. The Anonymity cases do NOT proffer absolute rights, and there have been some very dangerous trends.
Notwithstanding what we may think of the Klu Klux Klan, the Second Circuit ratification of Giuliani's enforcement of New York's gag law is a harbinger of dangers to come. There, claims of anonymity during a pilitical demonstration took the back seat to claims that folks are less likely to do harm if they are "unmasked."
The difference is that Georgia didn't recite its "compelling governmental interest." Regrettably, Miller may in time stand more as a roadmap how to make an enforceable cyber-mask law than as proof that the right to anonymity exists.
The long and short of it is that we must remain politically vigilant. You never need to test the constitutionality of a law that doesn't pass. Rather than using "rights" language ("you can't do this because its unconstitutional"), we must use the "policy" language that legislators understand ("you can't do this because its bad for America and bad for you, and because you'll never get reelected if you vote for it").
We must make our case for privacy on the net in terms Americans understand, before the debate is seized and controlled by the censors. It is we who must seize the initiative, and create a status quo of public sympathy that the censors must overcome.
Cybermask laws are the next CDA -- count on it! The Courts now have told the censors how to do it, and they are just waiting for the next big opportunity to make it happen. Let's seize the initiative before they have their chance.
The last time a manufacturer was meaningfully alleged to be responsible for piracy resulting from the use of new technology was the famous Betamax case, which went all the way to the Supreme Court.
The Supreme Court held that a defendant CANNOT be guilty for contributing to the infringement by a third party, whenever the apparatus being sold is capable of a substantial non-infringing use -- even if he has knowledge that the piracy might occur. In Betamax case, the Supes held that "time-shifting" broadcast TV by a consumer is fair use, and thus, there existed substantial non-infringing uses.
Of course, Sony lost to the Supreme Court of the Marketplace in the long run, but they set a virtually unassailable precedent for those who follow: if the thing can be used for non-infringing purposes, there won't be responsibility unless the defendant, itself, is actually doing the piracy.
There has been no trial, no finding of fact, and no consideration of the merits of Amazon's case by either a judge or a jury. Don't get too worried too quickly.
A preliminary injunction can only be obtained after making a substantial showing of likelihood on the merits. In the present case, it is highly likely that a hearing was held, and some evidence presented in addition to argument.
As a practical matter, the readers should understand that it is usually very difficult to obtain a preliminary injunction in a patent case -- far more difficult than with Copyright, Trademark or trade secrets.
In part, this is because even the flimsiest showing of invalidity can undercut the "substantial likelihood of success," notwithstanding the presumption of validity afforded a patent at trial. Ordinarily, technical arguments of invalidity are useless, except to make a record for the Federal Circuit. However, at a P.I., these arguments are golden sources of "no substantial likelihood."
Secondly, a defendant can usually blow a cloud of smoke concerning the claim construction of the patent in question -- particularly for software patents -- even for the broadest sounding claims.
Finally, it is often the case that a showing of irreparable harm is effectively countered with the argument that money damages can be adequate, or with a balancing of harms argument; particularly when balancing the injunction against the costs of pulling a significant commercial website.
As a practical matter, getting P.I. in a patent case is a legal slam-dunk -- a rare and significant accomplishment. Amazon's attorneys did very well for their client yesterday. Obtaining P.I. in a patent case tends to change the entire tenor of the proceedings. This case may well settle soon.
TRIPS is seriously old news. It was the result of extended negotiations and public debate over a period of years beginning in the early 1990's (and some time before then), and was ultimately adopted in January of 1995. These terms were negotiated in part through the USTR, then Mickey Kantor (sp?) and the USPTO Commissioner, Bruce Lehman, neither of whom are still in office.
As with most trade agreements, there can be found within it some good and some bad. But whatever else can be said about TRIPS, the issues raised there are not new ones. Moreover, to the extent that we have been signed on since the mid-90's, its sort of a done deal.
Several of our colleagues have observed that class actions of this kind are being brought by law firms with only $$$ in their eyes. Yea, verily this is probably the truth. Class action plaintiff firms are indeed an entrepreneurial bunch.
/. colleagues and will speak on behalf of my bretheren at the plaintiff's bar.
But several of these messages suggested that the truth of this proposition also implies that class actions so brought do not serve the purposes of justice. Here (though I primarily practice law on behalf of commercial defendants in such actions), I will part company with my
It is not uncommon for businesses to engage in commercial activities in violation of the law and the policy set by legislatures, rulemakers and the courts. In many cases, there is no "real harm" to any one member of the public, but hundreds of thousands of dollars can be made, scattering the costs over millions and tens of millions of customers, each suffing only at most a few pennies or dollars of damage at most. A primary example occurs in the mis-collection of sales taxes from consumers.
Indeed, few people would even monitor this conduct, least of all the government, whose enforcement resources are limited at the end of the day. Were there no enforcement by the government, why would businesses tow the line?
The answer: because there exists a small cabal of class action plaintiff law firms who specialize in this kind of practice. They investigate these micro-violations, and bring civil actions on behalf of the consumers who were overcharged, each only pennies at a time.
True, consumers will get a pittance back at the end of the day compared to what was taken, but they will get something they would not have gotten otherwise, and at little cost and with minimum disruption to their lives. More important, the bringing of such actions STOPS the bad practices, and deters companies from "overreaching by neglect." It is easy to look the other way when your "mistakes" are making you money.
If such actions could not be brought, there would be no check on this kind of microviolation. Class action disputes of this kind (see also qui tam actions) are the only meaningful engine to assure enforcement of certain kinds of social policies.
Why let lawyers get rich at the expense of a Microsoft or other company, with little revenue actually flowing to the victims? The answer is simple: so that the company will be deterred from microviolation conduct in the future. Here is where you will find the justice.
Think ahead: a statutory class action remedy for excessive spamming by or on behalf of commercial entities!
PLEASE learn some more about Co$ and how they operate. They go out of their way to harass anyone who criticizes them.
With all due respect, as a denizen of the Tampa Bay arena, I have been following the matter closely for years. Disagreement with your point of view does not equate to innorance.
RTC has taken some strong positions, to be sure, and has unrelentingly exploited the legal process to abuse those who has stepped in the way of its actual rights. However, you will note, they have also won a great number of these cases on the merits.
I took substantial heat, indeed derision, for noting in alt.religion.scientology that the copyright case against Lerma was not only strong, but likely to prevail on summary judgment. Even after that was exactly what happened, there was still overwhelming denial of the merits of the case. Such is the difficulty of religious disputes.
I agree they go out of their way to attack their critics, and I agree its unconcionable. This doesn't mean that everything a critic does, particularly beyond the bounds, is legal and justified, or that every lawsuit brought by the church is meritless, even if it was brought for the purpose of harassment as critics allege.
Which brings me back to the points raised in my original posting.
To understand why, one must understand the purpose of a mediation. In a mediation, the mediator serves as a facilitator to help the parties to find a settlement when, in fact, they each have minimum positions with which the other party can live. Very often, two adversarial parties are unable to break the rhythm of posturing and stating their strongest views, making it impossible to narrow the gap.
A mediator typically takes each party aside, points out civilly what of their posturing is bullshit, reminds them civilly of the risks of proceeding and asks them confidentially to disclose their best position (to the extent they feel comfortable doing so). A really good mediator can help the parties to feel comfortable reducing their posturing so they can get down to real-life horsetrading and settle the damn dispute.
Judge Posner's views and politics are decidedly pro-Microsoft in these facts. Judge Posner would probably argue that there is no such thing as a real "barrier to entry," the very fulcrum of Judge Jackson's FOF. But so what? This is precisely why he is the perfect choice.
Judge Posner's views, whatever you may think of them, do not diminish his stature. He is the lion of antitrust law and jurisprudence (particularly given that Judge Bork has hung up his robes). He is also brilliant (though I don't agree with a great deal of his writings or analyis), and a remarkably fast and analytical thinker.
In short, no one is going to bullshit him. He will have comebacks, regardless of who is trying to stake out their position. And the setting aside of bullshit is the fuel of mediation. Posner can deflate the theory of the government's position, when in caucus with the government, and he can destroy Microsoft's confidence in its position when in caucus with Microsoft. Why but Posner could really accomplish this in view of these findings of facts?
The purpose of mediation is to achieve a settlement when it is possible (typically one with both parties holding their stomachs as they sign), or to declare an impasse with as little pain as possible.
True, Posner gives Microsoft a sense of an "edge" going in. How do you think the government feels about the findings of facts? A "settlement session" where the government dictates terms may be satisfying for the egos of the government, but it will not achieve a settlement. Posner can balance things for the purposes of mediation, so that the horsetrading can happen -- if it can happen at all.
We really don't have sufficient facts to judge what happened here. It is odd that a single letter would suffice to make an ISP pull out for reasons of a threat of trademark infringement:
1) The DMCA, which addresses only third-party liability for Copyright claims, doesn't provide either the safe-harbour for pulling, or the defense against the customer's contract claim unless the letter also alleged copyright claims.
2) The domain name "xemu.com" doesn't appear to be a trademark of RTI or related entities. How was the site using the words? Mere denominative use of a designation isn't trademark infringement, any more than our use of Microsoft in discussions about Microsoft would be infringement. If that is the alpha and omega of their claims, and the defendant can show this was merely an attempt to gag criticism, they are risking serious downsides if they lose -- in particular an award of attorney fees for an exceptional case.
It is true that some xxxsucks sites went over the line. (See the jews-for-jesus.com case) But those were cases where the mark was clearly used in a non-denominative fashion.
Accordingly, this just doesn't add up. I can't see the ISP risking a contract claim by just pulling the site (since unprotected by DMCA), and it would be odd for RTC to step out on this very feeble legal limb. (Their copyright claims in previous cases, however distasteful, had real, legal teeth -- these seem toothless in comparison).
I'd like to know more facts.
when it comes down to it, this is going to have to be made as a rational business decision on your part.
You need to do two things: (1) Assess the value (aesthetically, commercially or otherwise) to you of keeping the domain name; and (2) Assess the merits of Purdue's claims.
This much is clear, you cannot answer the latter question effectively without getting good advice from a competent lawyer, and in this case an expert on the subject will be far more efficient than a low-end techno-newbie, even at one-third the rate.
I can assure that no contributor to slashdot, lawyer or non-laywer can give you sound advice based solely upon the information provided, so should you decide to act upon any advice you receive here, be assured you will get in value precisely what you paid for the advice. Might as well flip a coin.
But if you do complete those analyses, you may discover that the matter can be dismissed with a letter, or even if it cannot be, that it would be worthwhile to fight (or try to outstare the other side) with respect to a genuine lawsuit. From this information, you can actually plan and execute a strategy, rather than merely react to the letter.
For your own good, Its probably best not to respond to the letter until you have obtained advice of competent counsel, except perhaps to advise the other side that you will communicate with them after you have obtained and received advice of counsel.