Various folks have written, expressing concern that permitting electronic signatures would be too easily forged or spoofed. There are several responses to this:
(1) At common law, the typing of your initials at the end of an e-mail with intent to authenticate is probably a signature anyway (mileage may vary state to state);
(2) Have you considered how trivial it is to undetectably duplicate a paper signature? Moreover, how easy it is to lift a signature from one document and apply it to another? In comparison, digital signatures are checksummed to the documents they sign, and are very difficult to forge without human engineering;
(3) In practice, disputes over signatures are not really ever resolved by comparing testimony of signature experts (except in extraordinary cases). The two experts cancel each other out trivially, and the jury judges based upon the demeanor of the parties and the overall circumstances of the transaction. In a recent case, where a party denied signing a written agreement to sell some goods, the other side simply asked on the stand whether he routinely sent goods of the type to the other side -- "no"; whether he did after the date of the disputed document -- "yes"; whether he did in accordance with the schedule set forth in the disputed document -- "yes." It was all over, notwithstanding the conflicting expert testimony. (Ironically, the argument was that the signature was "too good," too close to a specimen the other party was known to have and therefor copied. Yeah, right.)
The real deal is this: signatures are not there (for legal reasons) for the purpose of authentication -- they are a mechanism to formally "close" a deal, to distinguish those deals that aren't done from those that are, and in some cases to seal certain types of agreements that require a signed writing.
The authentication purposes are an issue of "risk management," not legal effectiveness. The law only raises the question of whether the act, if it took place, was legally effective to seal the deal, and not whether the act took place.
On the other hand, a businessperson might want to be able to prove a signature was real more readily than usual. This is why when a multi-zillion dollar deal is being closed, a lawyer will not accept from the other side to sign "Minnie Mouse," or "X" (if literate), even though doing so is legally effective for any statute of frauds purposes. Likewise, I would never accept for a meaningful transaction an e-mail stating:
"Yeah, I accept your offer to sell Blackacre for 100,000 lucre. Sure.
Love, Mandy."
Even though it would be enforceable under Florida law for the purpose of the statute of frauds.
Its all about eggs in baskets. How much comfort do you need, and how much certainty do you want to avoid being spoofed. If you make it a personal policy never to sign electronic signatures, it will be hard for the other side to prove that you actually did when you didn't, no matter how good the forgery. On the other hand, if you do, make sure you do a good job of making it difficult for others to forge or spoof you.
Agreed that certification authorities are an important part of making use of signatures safe and commercially sensible. Disagreed in the strongest terms that they are necessary for the law to give effect to an instrument.
In my view, the less the law tells us about how we do business, the better. Leave it to the marketplace to decide what technology and form of signature they want to use. Whether they rely on EDI agreements, e-mail typewritten messages or elaborate cryptographical structure using state-authorized or state-licensed "trusted parties," should be decided by those doing the signing, not those pretending to be high-tech-aware and make some press in Washington.
The law SHOULD make clear that electronic signatures should be used and useful, just so folks don't feel they need to see a case before using the technology. After that, legislators should get out of the way.
In recent years, many states have been addressing Digital and Electronic signatures; and there are solid legal arguments that a digital signature would be legally enforceable even in the absence of such legislation.
Florida's, for example, is among the clearest and most consistent with the common law, defining a "writing" to include "information which is created or stored in any electronic medium and is retrievable in perceptable form," an "electronic signature" to mean "any letters, characters or symbols, manifested by electronic or similar means, executed or adopted by a party with intent to authenticate a writing," and further providing that a writing is electronically signed if an electronic signature is logically associated with the writing.
With those definitions, it provides simply that "Unless otherwise provided by law, an electronic signature may be used to sign a writing and shall have the same force and effect as a written signature."
Other states, such as Utah and Washington, have required that to receive the benefit of the statute, the signature must be made by use of asymmetric encryption, with varying definitions and limitations.
Accordingly, this bill isn't really all that new. However, the defintion of a signature is one of those things that has been traditionally determined by state law -- it may be unclear whether a Federal law purporting to preempt State law in this regard would be unconstitutional.
I don't see it, but here's how you can prove it. Build a claim chart, which is just a chart with two columns, one for the claim and one for EDS. In the rows will be each element of the claim, on the right, you identify the corresponding EDI activity. If you have a 1:1 correspondence between each and every limitation, you have proved your point. If you don't, you haven't.
Any reference published on or before the critical date will do. Particularly with this technology, a great deal of relevant patent prior art will not have expired.
It would be fun, if true. I am only aware of a few patents that were invalidated by works of fiction or references to antiquity. There is a case involving a reference to Hercules and an aqueduct, but that's about it.
I think it would be fun to argue why a person of ordinary skill would apply the reference, since many geeks are sci fi wonks.
The patentability standard for unobviousness doesn't mean what you seem to think it means. It is not sufficient merely to say, "aw, that would be obvious, even to an ordinary guy." In particular, it is impermissible to use hindsight -- you must show what existed before and account for how to put it together to make precisely the claimed invention.
That is what this prior art search is all about. We need to find the references (or public uses) of technology that embodies all these elements. If we cannot find the references (or prior uses), then, as a matter of law, it will not likely be found to fail for obviousness.
For the same reason that someone practicing TCP/IP, without more, clearly wouldn't infringe the claims of this patent, TCP/IP would not stand, by itself, as invalidating prior art.
In answer to the qustion, the meaning of a phrase in a patent claim is determined first by the plain language of the claim itself AND by the definition given to that term in the specification. If the plain meaning is not clear and there is no express definition in the spec, the spec is used as a reference to help to understand (construe) the claims.
The meaning of the patent and its claims simply cannot be understood without first studying the specification. You can find the specification for any modern patent at this page of the USPTO web site. There you can also get free printable tiff images of the patent.
So much of this patent's claim langauge cannot be understood merely by examining the claim -- you must also read, at least, the specification. For many claim elements, particularly those written in the form of "means plus function" or "function means" language, the meaning of the claim element is DEFINED by the corresponding portions of the specification.
But this doesn't end the inquiry. Taking a single element out of context, say, the "control object," and noting that there existed a control object in another program or protocol isn't enough. The referenced control object must also meet each and every other limitation set forth in the claim and be used in the context described in the claim.
We nerds are notorious for being way too informal and uninformed about asserting the invalidity of patents. Accordingly, our whinings about the system are generally ignored by the mainstream patent community. It is critical that before we begin to flame on about a particular patent, that we make sure we really have the goods. To do that, we need to read the claims and the specification, and then, and only then, if we really have it licked, use the example to slam the patent and the system.
This patent may be valid, or it may not be valid. If it is valid, live with it and move on to another. If not, slam the sucker and use it to point out weaknesses in the system. Meanwhile, as a community we can help enormously by assisting in these prior art searches.
But we do ourselves no good at all, and a fair amount of harm, merely by waving our hands. It is not enough merely to belittle the claimed invention. The question was asked: "Perhaps some intellectual property lawyer can explain to me what make's Intermind's stuff so new and unique."
But AC's question merely begs the question: No patentable invention needs to be "so new and unique," but merely new, useful and unobvious. No spark of genius is necessary. No fundamental contribution.
Mere novelty suffices -- and that can be done merely by distinguishing the prior art with subtle limitations. If no reference contains the limitations, the device is novel for patent purposes -- that's all that is required. If the prior art is a chair, a claim directed to a chair with arcuate rockers attached to the bottom distinguishes the art, even though a rocking chair is still a chair. Indeed, the vast majority of patent claims begin by reciting prior art structure, adding specialized limitations as improvements.
Obviousness simply refers to a "backstop" to avoid granting patents for minor or trivial new limitations, and applies mostly where the differences between the old art and the new combination are such that those differences could be reconstructed from the prior art by a person of ordinary skill in the art. In the rocking chair example, a rocking stool might well be invalidating prior art under the obviousness standard, even though the refernence does not disclose the structure that distinguishes a stool from a chair (probably just the back), provided that the reference is taken together with a reference describing the structure of a chair and it would be obvious to a person of ordinary skill to combine the references.
Sorry, I hit the wrong key before the post was ready.
While general art discussing the technology may be useful, the killer reference will be one describing each and every limitation of the claims of the patent. Accordingly, care should be taken not to paraphrase too much the claim language. One illustrative claim is Claim 20, defining:
A computer-based communication system comprising:
a provider memory storing information including provider information;
a consumer memory storing information including consumer information;
association means for
creating metadata associating portions of said information and
defining a control structure for processing at least at said consumer memory to associate with
said metadata processes for controlling the communication of said associated information, said metadata including data exchange metadata associating a process for controlling the transfer of feedback information,
said feedback information including at least a portion of said consumer information, to said provider memory;
transfer means for transferring said information, including said metadata defining said control structure, from said provider memory to said consumer memory;
feedback transfer means for transferring said feedback information from said consumer memory to said provider memory; and
processing means for executing instructions external to said control structure to perform said processes to control communications of said information.
To infringe this patent claim, one must practice each and every element and limitation reciting in the invention, either directly or equivalently. The absence of even one element or limitation would result in a noninfringement.
Invalidation of a patent works the same way. To invalidate the claim, a reference should recite or teach each and every element and limitation recited above, either directly or inherently. Such killer art is rare for any patent, whose claims are usually drafted precisely to distinguish the prior art by adding some limitation not present there. On the other hand, two or more references may sometimes be combined to "fill in the gaps," provided that the references have a hint that teaches or suggests the combination.
If you have something close, by all means report it, because close (while no cigar) often leads to closer. However, you should all know for what you are looking.
While general art discussing the technology may be useful, the killer reference will be one describing each and every limitation of the claims of the patent. Accordingly, care should be taken not to paraphrase too much the claim language. One illustrative claim is Claim 20, defining:
A computer-based communication system comprising:
a provider memory storing information including provider information;
a consumer memory storing information including consumer information;
association means for
creating metadata associating portions of said information and
defining a control structure for processing at least at said consumer memory to associate with said metadata processes for controlling the communication of said associated information,
said metadata including data exchange metadata associating a process for controlling the transfer of feedback information,
said feedback information including at least a portion of said consumer information,
to said provider memory;
transfer means for transferring said information, including said metadata defining said control structure, from said provider memory to said consumer memory;
feedback transfer means for transferring said feedback information from said consumer memory to said provider memory; and
processing means for executing instructions external to said control structure to perform said processes to control communications of said information.
A patent claim may be directed to an apparatus, a process, an article of manufacture or any new and useful improvement on any of those. 35 U.S.C. s. 101.
Accordingly, you can find claims directed to any or all of the following:
A general purpose computer for doing . . . programmed with a fixed store encoded to follow the steps of: . . .
A process (or method) for doing . . . comprising the steps of: . . .
A magnetic medium upon which is stored a computer program comprising the steps of: . . .
A propagated signal encoding a program comprising the steps of: . . .
along with any other example that defines an apparatus, article of manufacture or process.
Of course this is so. A number of brilliant people were parties to that work, ergo the "Alan Kay and company" comment. No attribution of all right, title and interest in and to the GUI to Mr. Kay was intended.
By the way, a fairly decent account of the PARC and pre-PARC days can be found in a facinating read entitled "Fumbling the Future."
As noted in an earlier post, Shark's view of the Surpeme Court is inconsistent with their conduct. This is, after all, the same Court (with liberal voices installed since) that twice struck down Flag Burning statutes. Scalia is a First Amendment nut, and I don't think anyone really knows what this Court is likely to do.
(On the other hand, note that noone liking this result is arguing how often the 9th circuit is reversed, as we saw in some other recent threads;-) )
On the second point, I agree that the opinion is a roadmap to passing "better" legislation. Maybe it will be better, who knows?
And, though I am far more statist than the average slashdotter, I still cannot condone at the end of the day condone strong government regulation of crypto -- it invites abuses far worse than any potential benefits to society from the regulation.
Very salient, IMHO, was the dicta at the end of the opionion:
"we note that government's efforts to regulate and control the spread of knowledge relating to encryption may implicate more than the First Amendment rights of cryptographers. In this increasingly electronic age, we are all required in our everyday lives to rely on modern technology to communicate with one another. This reliance on electronic communication, however, has brought with it a dramatic diminution in our ability to communicate privately. . . . Whether we are surveilled by our government, by criminals, or by our neighbors, it is fair to say that never has our ability to shield our affairs from prying eyes been at such a low ebb. The availability and use of secure encryption may offer an opportunity to reclaim some portion of the privacy we have lost. Government efforts to control encryption thus may well implicate not only the First Amendment rights of cryptographers intent on pushing the boundaries of their science, but also the constitutional rights of each of us as potential recipients of encryptions bounty. Viewed from this perspective, the government's efforts to retard progress in cryptography may implicate the Fourth Amendment, as well as the right to speak anonymously, . . . the right against compelled speech, . . . and the right to informational privacy . . .."
It is important to note the narrow scope of the holding, despite all the yummy language:
"We emphasize the narrowness of our First Amendment holding. We do not hold that all software is expressive. Much of it surely is not. Nor need we resolve whether the challenged regulations constitute content-based restrictions, subject to the strictest constitutional scrutiny, or whether they are, instead, content-neutral restrictions meriting less exacting scrutiny. We hold merely that because the prepublication licensing regime challenged here applies directly to scientific expression, vests boundless discretion in government officials, and lacks adequate procedural safeguards, it constitutes an impermissible prior restraint on speech."
Slip Opinion at 4241.
The significance of this limiting language should not be overlooked. While the court did, in dicta (non-precedential commentary) reach out into the nether areas of whether government may try to slow the use of encryption, that was not the limited holding which is the crux (and legally binding effect) of the opinion.
Indeed, there is some risk that the opinion might be understood as a roadmap for drafting revised regulations or legislation that would permit the particular conduct encouraged by Bernstein (scientific inquiry) as a sort of "fair use," but preclude any other uses of encryption, which is among the Government's principal goals. [Replacing the prior restraint licensing, for example, with severe penalties for improper disclosure after the fact, with narrow exceptions for "academic and scientific" expression. Indeed, limiting regulation to use and transmission of object code and non-expressive transmission of source code might go a long way to slamming down much of what the government wants to slam while passing muster, perhaps, even with this court.]
Many roads before this will be over with: possible en banc review before the entire 9th Circuit, possible appeal to the Supreme Court. Possible dumping of the statute for more technically acceptable, yet equally egregious legislation.
But it is nice to see that we are no longer spitting into the wind, legally speaking. Dicta or no dicta, this opinion gives counsel for prospective cypherpunks a lot with which to go to bat. I am also encouraged with the hints that the Fourth Amendment is also implicated by crypto regulation!
By the way, some people commented earlier that the court's "liberal" opinion would be disregarded by the Supreme Court. I think not, at least not by lockstep ideology (although they might reverse). Arguably the most conservative voice on the bench, Justice Antonin Scalia is a powerfully strong First Amendment advocate, almost to the point of being absolutist. Don't forget that this is the same conservative court that twice shut down Flag Burning statutes.
Agreed this is a remarkable and exciting result. agreed that this is quite likely to go up, given the stakes involved. For now, however, I will withhold further comment until I have had a chance to study the opinion.
Kaa made this point in a prior comment which was (IMHO)unduly moderated downward. I think in this modern age, we should not forget that a significant heritage was gifted to us by Alan Kay and company (indeed mice, GUI, modern oops and perhaps even the fundamental notion of a dedicated personal computer).
I confess that I did not truly appreciate the scope and quality of this work (though I did understand from a textbook point of view the substance and historical importance of it) until I saw how virtually complete was even a slavish recreation of the bare naked Smalltalk 80 system (found among the superb work at Apple and now Disney with the open source Squeak Smalltalk project.
Following Squeak's development made me appreciate more and more the significance of the building blocks for which these guys had poured the mortar.
> The idea of virtual property is radical and > new, almost completely unforeseen by the > legions of futurists and cyber-theorists > studying about the Internet. EBay, it turns > out, will perhaps be even more revolutionary > than the Mp3.
Not so! In the late 70's and early 80's, the University of Illinois ran a computer aided instruction system based on some CDC computers, named PLATO. This network had terminals across the country, a good number of which were appropriated by students heatedly standing by their orange plasma panels, engaged in interactive gaming with hundreds of others, and wondering whether the Balrog would get them.
Oubliette, among other games, was so popular that when its sponsors lost funding, actual cash was raised among players to support the space for running the game -- unheard of at that time. Likewise, there was a rich economy for booty extracted from the gaming world, and for services of accompanying others into the darkest dungeon. Not big bucks mind you, but a clear demonstration of: (1) the massively wonderful and addictive power of interactive gaming, whether automated or not; and (2) the virtual markets that arise under them when false scarcity is created by the author of the game.
Note that any such economy is inherently at risk. The author can always change the rules or the physics of the game, making hypervaluable assets worthless in the game sense, or by giving away massive numbers of them, which has the same effect.
The same is true for "collectables" markets. Wizards of the Coast might cut their own throats by reprinting rare and, presently, valuable cards, but at the same time the market for those cards would be substantially undercut, if not destroyed (depending how distinguishable these reprints were from the original). Alternatively, they can likewise just change the rules so as to make the cards less valuable.
As I noted, these virtual "economics" are based upon a false sense of scarcity that wholly relies upon the slight and probably unenforcable "promises" of others not to change the result. A bad investment unless you have got the inside track.
The answer is neither to overreact nor underreact. No force of law is necessary for this to be devastating to the Internet, if domain name registries comply with the WIPO proposals, and compel their registrants to agree by private legislation (contract) to its terms.
Anyone who has actually dealt with NSI on a domain name dispute (particularly in their earlier, more ugly days) knows that trademark law has little to do with whether a domain name is placed on hold. You CAN'T HAVE a domain name unless you agree to the terms and provisions of NSI's dispute resolution policy (including indemnification of NSI, by the way), and NSI can do with it as they will, your only recourse being set forth in contract under the policy.
The WIPO domain name registrars will likely sign on to the policy as a condition of being able to dole out the names, and will enforce the policy upon its registrants. That's as close to law as it needs to be.
See Professor Froomkin's remarks for examples of how this can hurt you.
I agree with the criticisms about the UN and WIPO overstepping their bounds. However, I disagree with the sense that they cannot do anything harmful, and should be ignored. WIPO policies have been widely adopted, and when adopted by domain name registries, they can become as effective as though they were the law.
The difference here is that these rules are being promulgated by people accountable to no constituency except, of course, the special interests that sponsored their international activism. (This translates about 95% to large multinationals seeking to end-run enforceability limitations of the U.S. trademark laws.)
Understanding that it is highly likely that WIPO policies can become domain name dispute resolution policies; and that these policies, if applied, can effectively create quasi-judicial rights in gross for these well-heeled interests that they could not obtain otherwise (often for which the loser probably has no meaningful legal recourse in the courts of any nation) something must be done.
A few brave souls have been active in fighting the good fight, and have been desperate to get someone, anyone, to get interested enough to chime in and comment. Michael Froomkin at the University of Miami has been one of the leaders. He writes about the details at:
I would advise anyone with an interest to get "active." Whatever your thoughts about the propriety of international government, the non-governmental nature of the internet makes it quite vulnerable to this kind of de-facto policy-making, which policy-making can in time become effective as though it were the law.
Under the DMCA, ISPs are not, in fact, obliged to engage in any due diligence, at least with respect to copyright issues. Indeed, once they begin to engage in affirmative investigations, they can lose their safe harbor benefits. (ISPs should consult with their attorney for particulars.)
If they are placed upon notice in a particular manner, however, the burden shifts to them to pull it down for a brief period of time (I believe its 10 days or so), or to investigate and decide to take the risk of being wrong. After that time, the information can go up again under the safe harbor, unless the owner files suit against the alleged infringer.
Once again, read the DCMA together with your attorney. Do not rely upon these general statements, as the application is exceedingly fact-dependent, with subtle changes potentially swinging the results 100% either way.
Under the DMCA, ISPs are not, in fact, obliged to engage in any due diligence, at least with respect to copyright issues. Indeed, once they begin to engage in affirmative investigations, they can lose their safe harbor benefits. (ISPs should consult with their attorney for particulars.)
If they are placed upon notice in a particular manner, however, the burden shifts to them to pull it down for a brief period of time (I believe its 10 days), or to investigate and decide to take the risk. After that time, the information can go up again, unless the owner files suit against the alleged infringer.
Once again, read the DCMA together with your attorney. Do not rely upon these general statements, as the application is exceedingly fact-dependent, with subtle changes potentially swinging the results 100%
Dram shop liability, when it attaches, can create vicarious liability for negligent acts by the drunken sailors who leave the bar.
The existence and scope of dram shop liability varies from nation to nation, and in the U.S. from state to state -- so your mileage may vary. In any case, don't drink and drive.
Title II of the Digital Millenium Copyright Act squarely confronts the issues raised here by Lucasfilm. Essentially, a qualified service provider is not responsible for copyright infringement by its subscribers under many conditions.
One way a copyright owner can pierce the safe harbor is by sending notice of an infringement to the ISP, under certain conditions. This is what this letter is about. There is a laundry list of details setting forth what constitutes a notice that would serve this purpose. In particular, to be effective, the notification must identify particular works "at that site" and information "reasonably sufficient to permit the service provider to locate the material."
In short, the notice appears intended to be used as a notice of an actual infringement, and not as a blanket, preemptive device to "turn off" the ISP immunity for a given list of works. Clearly the Lucaslawyers are trying to test the limits of the law, or (more likely IMHO) are merely setting up later cases in an abundance of caution. ["Yer honah, we notified them and notified them and notified them a whole buncha' times, but they didn't do nothin'"]
The notice Lucasfilms presents does not appear to qualify, since it is a notice of potential infringements, and not a notice of an actual, present infringement. Here, Lucasfilms is attempting to use something like the notice to effectively "deputize" the world's ISP community as copyright police.
This is probably impermissible. In particular, the DMCA provides that: "Nothing in this section shall be construed to condition the applicability of [the exemption] on-- (1) a service provider monitoring its service or affirmatively seeking facts indicating infringing activity" provided that the ISP accomodates and does not interfere with "standard technical measures."
Of course, once there *is* an infringement, and once Lucas actually gives notice, that is another issue.
While I am a lawyer, readers should note that the preceding is merely a general summary of a few provisions of the DMCA and should not be deemed legal advice. Legal advice requires application of particular law to particular facts and in DMCA cases, the devil is certainly in the details and particular facts can make the case swing either way. Please forgive the multi-line disclaimer -- my carrier insists upon this sort of thing.
Not a bad word, particularly since the Patent Act expressly provides that patent owners can sue states. However, its not the last word. You need more words.
First of all, you must recognize that as between an act of Congress and a provision in the Constitution, the latter controls. Not bad for your position, since Article I, Section 8 provides that Congress can promulgate patent laws.
But its still not enough. You must also recognize that Amendments trump plain language of the Constitution. Even if an act of Congress falls within an enumerated power, if it is barred by a subsequent Amendment, no dice.
The Eleventh Amendment is the subject of this case, and the Supreme Court has already held that the Commerce Clause (also in Article I, Section 8) doesn't trump it. So, where would Congress get the power to "preempt" with regard to sovereign immunity -- the right of the STATE itself to be free from suit?
The Supreme Court is presently considering this issue, contemplating whether the 14th Amendment trumps the 11th in this regard.
Time will tell. Meanwhile, although you had the right idea to get the ball rolling, the full analysis is somewhat more interesting.
Slashdot Mirror
Various folks have written, expressing concern that permitting electronic signatures would be too easily forged or spoofed. There are several responses to this:
(1) At common law, the typing of your initials at the end of an e-mail with intent to authenticate is probably a signature anyway (mileage may vary state to state);
(2) Have you considered how trivial it is to undetectably duplicate a paper signature? Moreover, how easy it is to lift a signature from one document and apply it to another? In comparison, digital signatures are checksummed to the documents they sign, and are very difficult to forge without human engineering;
(3) In practice, disputes over signatures are not really ever resolved by comparing testimony of signature experts (except in extraordinary cases). The two experts cancel each other out trivially, and the jury judges based upon the demeanor of the parties and the overall circumstances of the transaction. In a recent case, where a party denied signing a written agreement to sell some goods, the other side simply asked on the stand whether he routinely sent goods of the type to the other side -- "no"; whether he did after the date of the disputed document -- "yes"; whether he did in accordance with the schedule set forth in the disputed document -- "yes." It was all over, notwithstanding the conflicting expert testimony. (Ironically, the argument was that the signature was "too good," too close to a specimen the other party was known to have and therefor copied. Yeah, right.)
The real deal is this: signatures are not there (for legal reasons) for the purpose of authentication -- they are a mechanism to formally "close" a deal, to distinguish those deals that aren't done from those that are, and in some cases to seal certain types of agreements that require a signed writing.
The authentication purposes are an issue of "risk management," not legal effectiveness. The law only raises the question of whether the act, if it took place, was legally effective to seal the deal, and not whether the act took place.
On the other hand, a businessperson might want to be able to prove a signature was real more readily than usual. This is why when a multi-zillion dollar deal is being closed, a lawyer will not accept from the other side to sign "Minnie Mouse," or "X" (if literate), even though doing so is legally effective for any statute of frauds purposes. Likewise, I would never accept for a meaningful transaction an e-mail stating:
"Yeah, I accept your offer to sell Blackacre for 100,000 lucre. Sure.
Love, Mandy."
Even though it would be enforceable under Florida law for the purpose of the statute of frauds.
Its all about eggs in baskets. How much comfort do you need, and how much certainty do you want to avoid being spoofed. If you make it a personal policy never to sign electronic signatures, it will be hard for the other side to prove that you actually did when you didn't, no matter how good the forgery. On the other hand, if you do, make sure you do a good job of making it difficult for others to forge or spoof you.
Agreed that certification authorities are an important part of making use of signatures safe and commercially sensible. Disagreed in the strongest terms that they are necessary for the law to give effect to an instrument.
In my view, the less the law tells us about how we do business, the better. Leave it to the marketplace to decide what technology and form of signature they want to use. Whether they rely on EDI agreements, e-mail typewritten messages or elaborate cryptographical structure using state-authorized or state-licensed "trusted parties," should be decided by those doing the signing, not those pretending to be high-tech-aware and make some press in Washington.
The law SHOULD make clear that electronic signatures should be used and useful, just so folks don't feel they need to see a case before using the technology. After that, legislators should get out of the way.
In recent years, many states have been addressing Digital and Electronic signatures; and there are solid legal arguments that a digital signature would be legally enforceable even in the absence of such legislation.
Florida's, for example, is among the clearest and most consistent with the common law, defining a "writing" to include "information which is created or stored in any electronic medium and is retrievable in perceptable form," an "electronic signature" to mean "any letters, characters or symbols, manifested by electronic or similar means, executed or adopted by a party with intent to authenticate a writing," and further providing that a writing is electronically signed if an electronic signature is logically associated with the writing.
With those definitions, it provides simply that "Unless otherwise provided by law, an electronic signature may be used to sign a writing and shall have the same force and effect as a written signature."
Other states, such as Utah and Washington, have required that to receive the benefit of the statute, the signature must be made by use of asymmetric encryption, with varying definitions and limitations.
Accordingly, this bill isn't really all that new. However, the defintion of a signature is one of those things that has been traditionally determined by state law -- it may be unclear whether a Federal law purporting to preempt State law in this regard would be unconstitutional.
I don't see it, but here's how you can prove it. Build a claim chart, which is just a chart with two columns, one for the claim and one for EDS. In the rows will be each element of the claim, on the right, you identify the corresponding EDI activity. If you have a 1:1 correspondence between each and every limitation, you have proved your point. If you don't, you haven't.
Don't limit yourself to expired patents!!!!
Any reference published on or before the critical date will do. Particularly with this technology, a great deal of relevant patent prior art will not have expired.
It would be fun, if true. I am only aware of a few patents that were invalidated by works of fiction or references to antiquity. There is a case involving a reference to Hercules and an aqueduct, but that's about it.
I think it would be fun to argue why a person of ordinary skill would apply the reference, since many geeks are sci fi wonks.
The patentability standard for unobviousness doesn't mean what you seem to think it means. It is not sufficient merely to say, "aw, that would be obvious, even to an ordinary guy." In particular, it is impermissible to use hindsight -- you must show what existed before and account for how to put it together to make precisely the claimed invention.
That is what this prior art search is all about. We need to find the references (or public uses) of technology that embodies all these elements. If we cannot find the references (or prior uses), then, as a matter of law, it will not likely be found to fail for obviousness.
Sure. Where is the association means in this example?
For the same reason that someone practicing TCP/IP, without more, clearly wouldn't infringe the claims of this patent, TCP/IP would not stand, by itself, as invalidating prior art.
In answer to the qustion, the meaning of a phrase in a patent claim is determined first by the plain language of the claim itself AND by the definition given to that term in the specification. If the plain meaning is not clear and there is no express definition in the spec, the spec is used as a reference to help to understand (construe) the claims.
The meaning of the patent and its claims simply cannot be understood without first studying the specification. You can find the specification for any modern patent at this page of the USPTO web site. There you can also get free printable tiff images of the patent.
So much of this patent's claim langauge cannot be understood merely by examining the claim -- you must also read, at least, the specification. For many claim elements, particularly those written in the form of "means plus function" or "function means" language, the meaning of the claim element is DEFINED by the corresponding portions of the specification.
But this doesn't end the inquiry. Taking a single element out of context, say, the "control object," and noting that there existed a control object in another program or protocol isn't enough. The referenced control object must also meet each and every other limitation set forth in the claim and be used in the context described in the claim.
We nerds are notorious for being way too informal and uninformed about asserting the invalidity of patents. Accordingly, our whinings about the system are generally ignored by the mainstream patent community. It is critical that before we begin to flame on about a particular patent, that we make sure we really have the goods. To do that, we need to read the claims and the specification, and then, and only then, if we really have it licked, use the example to slam the patent and the system.
This patent may be valid, or it may not be valid. If it is valid, live with it and move on to another. If not, slam the sucker and use it to point out weaknesses in the system. Meanwhile, as a community we can help enormously by assisting in these prior art searches.
But we do ourselves no good at all, and a fair amount of harm, merely by waving our hands. It is not enough merely to belittle the claimed invention. The question was asked: "Perhaps some intellectual property lawyer can explain to me what make's Intermind's stuff so new and unique."
But AC's question merely begs the question: No patentable invention needs to be "so new and unique," but merely new, useful and unobvious. No spark of genius is necessary. No fundamental contribution.
Mere novelty suffices -- and that can be done merely by distinguishing the prior art with subtle limitations. If no reference contains the limitations, the device is novel for patent purposes -- that's all that is required. If the prior art is a chair, a claim directed to a chair with arcuate rockers attached to the bottom distinguishes the art, even though a rocking chair is still a chair. Indeed, the vast majority of patent claims begin by reciting prior art structure, adding specialized limitations as improvements.
Obviousness simply refers to a "backstop" to avoid granting patents for minor or trivial new limitations, and applies mostly where the differences between the old art and the new combination are such that those differences could be reconstructed from the prior art by a person of ordinary skill in the art. In the rocking chair example, a rocking stool might well be invalidating prior art under the obviousness standard, even though the refernence does not disclose the structure that distinguishes a stool from a chair (probably just the back), provided that the reference is taken together with a reference describing the structure of a chair and it would be obvious to a person of ordinary skill to combine the references.
While general art discussing the technology may be useful, the killer reference will be one describing each and every limitation of the claims of the patent. Accordingly, care should be taken not to paraphrase too much the claim language. One illustrative claim is Claim 20, defining:
A computer-based communication system comprising:
said metadata including data exchange metadata associating a process for controlling the transfer of feedback information,
to said provider memory;
transfer means for transferring said information, including said metadata defining said control structure, from said provider memory to said consumer memory;
feedback transfer means for transferring said feedback information from said consumer memory to said provider memory; and
processing means for executing instructions external to said control structure to perform said processes to control communications of said information.
To infringe this patent claim, one must practice each and every element and limitation reciting in the invention, either directly or equivalently. The absence of even one element or limitation would result in a noninfringement.
Invalidation of a patent works the same way. To invalidate the claim, a reference should recite or teach each and every element and limitation recited above, either directly or inherently. Such killer art is rare for any patent, whose claims are usually drafted precisely to distinguish the prior art by adding some limitation not present there. On the other hand, two or more references may sometimes be combined to "fill in the gaps," provided that the references have a hint that teaches or suggests the combination.
If you have something close, by all means report it, because close (while no cigar) often leads to closer. However, you should all know for what you are looking.
A computer-based communication system comprising:
- creating metadata associating portions of said information and
- defining a control structure for processing at least at said consumer memory to associate with said metadata processes for controlling the communication of said associated information,
- said metadata including data exchange metadata associating a process for controlling the transfer of feedback information,
- said feedback information including at least a portion of said consumer information,
to said provider memory;Accordingly, you can find claims directed to any or all of the following:
programmed with a fixed store encoded to follow the steps of: . . .
along with any other example that defines an apparatus, article of manufacture or process.
Of course this is so. A number of brilliant people were parties to that work, ergo the "Alan Kay and company" comment. No attribution of all right, title and interest in and to the GUI to Mr. Kay was intended.
By the way, a fairly decent account of the PARC and pre-PARC days can be found in a facinating read entitled "Fumbling the Future."
As noted in an earlier post, Shark's view of the Surpeme Court is inconsistent with their conduct. This is, after all, the same Court (with liberal voices installed since) that twice struck down Flag Burning statutes. Scalia is a First Amendment nut, and I don't think anyone really knows what this Court is likely to do.
;-) )
."
(On the other hand, note that noone liking this result is arguing how often the 9th circuit is reversed, as we saw in some other recent threads
On the second point, I agree that the opinion is a roadmap to passing "better" legislation. Maybe it will be better, who knows?
And, though I am far more statist than the average slashdotter, I still cannot condone at the end of the day condone strong government regulation of crypto -- it invites abuses far worse than any potential benefits to society from the regulation.
Very salient, IMHO, was the dicta at the end of the opionion:
"we note that government's efforts to regulate and control the spread of knowledge relating to encryption may implicate more than the First Amendment rights of cryptographers. In this increasingly electronic age, we are all required in our everyday lives to rely on modern technology to communicate with one another. This reliance on electronic communication, however, has brought with it a dramatic diminution in our ability to communicate privately. . . . Whether we are surveilled by our government, by criminals, or by our neighbors, it is fair to say that never has our ability to shield our affairs from prying eyes been at such a low ebb. The availability and use of secure encryption may offer an opportunity to reclaim some portion of the privacy we have lost. Government efforts to control encryption thus may well implicate not only the First Amendment rights of cryptographers intent on pushing the boundaries of their science, but also the constitutional rights of each of us as potential recipients of encryptions bounty. Viewed from this perspective, the government's efforts to retard progress in cryptography may implicate the Fourth Amendment, as well as the right to speak anonymously, . . . the right against compelled speech, . . . and the right to informational privacy . . .
Slip Opinion at 4242 (emphasis supplied).
It is important to note the narrow scope of the holding, despite all the yummy language:
"We emphasize the narrowness of our First Amendment holding. We do not hold that all software is expressive. Much of it surely is not. Nor need we resolve whether the challenged regulations constitute content-based restrictions, subject to the strictest constitutional scrutiny, or whether they are, instead, content-neutral restrictions meriting less exacting scrutiny. We hold merely that because the prepublication licensing regime challenged here applies directly to scientific expression, vests boundless discretion in government officials, and lacks adequate procedural safeguards, it constitutes an impermissible prior restraint on speech."
Slip Opinion at 4241.
The significance of this limiting language should not be overlooked. While the court did, in dicta (non-precedential commentary) reach out into the nether areas of whether government may try to slow the use of encryption, that was not the limited holding which is the crux (and legally binding effect) of the opinion.
Indeed, there is some risk that the opinion might be understood as a roadmap for drafting revised regulations or legislation that would permit the particular conduct encouraged by Bernstein (scientific inquiry) as a sort of "fair use," but preclude any other uses of encryption, which is among the Government's principal goals. [Replacing the prior restraint licensing, for example, with severe penalties for improper disclosure after the fact, with narrow exceptions for "academic and scientific" expression. Indeed, limiting regulation to use and transmission of object code and non-expressive transmission of source code might go a long way to slamming down much of what the government wants to slam while passing muster, perhaps, even with this court.]
Many roads before this will be over with: possible en banc review before the entire 9th Circuit, possible appeal to the Supreme Court. Possible dumping of the statute for more technically acceptable, yet equally egregious legislation.
But it is nice to see that we are no longer spitting into the wind, legally speaking. Dicta or no dicta, this opinion gives counsel for prospective cypherpunks a lot with which to go to bat. I am also encouraged with the hints that the Fourth Amendment is also implicated by crypto regulation!
By the way, some people commented earlier that the court's "liberal" opinion would be disregarded by the Supreme Court. I think not, at least not by lockstep ideology (although they might reverse). Arguably the most conservative voice on the bench, Justice Antonin Scalia is a powerfully strong First Amendment advocate, almost to the point of being absolutist. Don't forget that this is the same conservative court that twice shut down Flag Burning statutes.
The text of the opinion is now available at the 9th Circuit website.
Agreed this is a remarkable and exciting result. agreed that this is quite likely to go up, given the stakes involved. For now, however, I will withhold further comment until I have had a chance to study the opinion.
Kaa made this point in a prior comment which was (IMHO)unduly moderated downward. I think in this modern age, we should not forget that a significant heritage was gifted to us by Alan Kay and company (indeed mice, GUI, modern oops and perhaps even the fundamental notion of a dedicated personal computer).
I confess that I did not truly appreciate the scope and quality of this work (though I did understand from a textbook point of view the substance and historical importance of it) until I saw how virtually complete was even a slavish recreation of the bare naked Smalltalk 80 system (found among the superb work at Apple and now Disney with the open source Squeak Smalltalk project.
Following Squeak's development made me appreciate more and more the significance of the building blocks for which these guys had poured the mortar.
> The idea of virtual property is radical and
> new, almost completely unforeseen by the
> legions of futurists and cyber-theorists
> studying about the Internet. EBay, it turns
> out, will perhaps be even more revolutionary
> than the Mp3.
Not so! In the late 70's and early 80's, the University of Illinois ran a computer aided instruction system based on some CDC computers, named PLATO. This network had terminals across the country, a good number of which were appropriated by students heatedly standing by their orange plasma panels, engaged in interactive gaming with hundreds of others, and wondering whether the Balrog would get them.
Oubliette, among other games, was so popular that when its sponsors lost funding, actual cash was raised among players to support the space for running the game -- unheard of at that time. Likewise, there was a rich economy for booty extracted from the gaming world, and for services of accompanying others into the darkest dungeon. Not big bucks mind you, but a clear demonstration of: (1) the massively wonderful and addictive power of interactive gaming, whether automated or not; and (2) the virtual markets that arise under them when false scarcity is created by the author of the game.
Note that any such economy is inherently at risk. The author can always change the rules or the physics of the game, making hypervaluable assets worthless in the game sense, or by giving away massive numbers of them, which has the same effect.
The same is true for "collectables" markets. Wizards of the Coast might cut their own throats by reprinting rare and, presently, valuable cards, but at the same time the market for those cards would be substantially undercut, if not destroyed (depending how distinguishable these reprints were from the original). Alternatively, they can likewise just change the rules so as to make the cards less valuable.
As I noted, these virtual "economics" are based upon a false sense of scarcity that wholly relies upon the slight and probably unenforcable "promises" of others not to change the result. A bad investment unless you have got the inside track.
The answer is neither to overreact nor underreact. No force of law is necessary for this to be devastating to the Internet, if domain name registries comply with the WIPO proposals, and compel their registrants to agree by private legislation (contract) to its terms.
Anyone who has actually dealt with NSI on a domain name dispute (particularly in their earlier, more ugly days) knows that trademark law has little to do with whether a domain name is placed on hold. You CAN'T HAVE a domain name unless you agree to the terms and provisions of NSI's dispute resolution policy (including indemnification of NSI, by the way), and NSI can do with it as they will, your only recourse being set forth in contract under the policy.
The WIPO domain name registrars will likely sign on to the policy as a condition of being able to dole out the names, and will enforce the policy upon its registrants. That's as close to law as it needs to be.
See Professor Froomkin's remarks for examples of how this can hurt you.
I agree with the criticisms about the UN and WIPO overstepping their bounds. However, I disagree with the sense that they cannot do anything harmful, and should be ignored. WIPO policies have been widely adopted, and when adopted by domain name registries, they can become as effective as though they were the law.
The difference here is that these rules are being promulgated by people accountable to no constituency except, of course, the special interests that sponsored their international activism. (This translates about 95% to large multinationals seeking to end-run enforceability limitations of the U.S. trademark laws.)
Understanding that it is highly likely that WIPO policies can become domain name dispute resolution policies; and that these policies, if applied, can effectively create quasi-judicial rights in gross for these well-heeled interests that they could not obtain otherwise (often for which the loser probably has no meaningful legal recourse in the courts of any nation) something must be done.
A few brave souls have been active in fighting the good fight, and have been desperate to get someone, anyone, to get interested enough to chime in and comment. Michael Froomkin at the University of Miami has been one of the leaders. He writes about the details at:
http://www.law.tm/
I would advise anyone with an interest to get "active." Whatever your thoughts about the propriety of international government, the non-governmental nature of the internet makes it quite vulnerable to this kind of de-facto policy-making, which policy-making can in time become effective as though it were the law.
Under the DMCA, ISPs are not, in fact, obliged to engage in any due diligence, at least with respect to copyright issues. Indeed, once they begin to engage in affirmative investigations, they can lose their safe harbor benefits. (ISPs should consult with their attorney for particulars.)
If they are placed upon notice in a particular manner, however, the burden shifts to them to pull it down for a brief period of time (I believe its 10 days or so), or to investigate and decide to take the risk of being wrong. After that time, the information can go up again under the safe harbor, unless the owner files suit against the alleged infringer.
Once again, read the DCMA together with your attorney. Do not rely upon these general statements, as the application is exceedingly fact-dependent, with subtle changes potentially swinging the results 100% either way.
Under the DMCA, ISPs are not, in fact, obliged to engage in any due diligence, at least with respect to copyright issues. Indeed, once they begin to engage in affirmative investigations, they can lose their safe harbor benefits. (ISPs should consult with their attorney for particulars.)
If they are placed upon notice in a particular manner, however, the burden shifts to them to pull it down for a brief period of time (I believe its 10 days), or to investigate and decide to take the risk. After that time, the information can go up again, unless the owner files suit against the alleged infringer.
Once again, read the DCMA together with your attorney. Do not rely upon these general statements, as the application is exceedingly fact-dependent, with subtle changes potentially swinging the results 100%
Dram shop liability, when it attaches, can create vicarious liability for negligent acts by the drunken sailors who leave the bar.
The existence and scope of dram shop liability varies from nation to nation, and in the U.S. from state to state -- so your mileage may vary. In any case, don't drink and drive.
Title II of the Digital Millenium Copyright Act squarely confronts the issues raised here by Lucasfilm. Essentially, a qualified service provider is not responsible for copyright infringement by its subscribers under many conditions.
One way a copyright owner can pierce the safe harbor is by sending notice of an infringement to the ISP, under certain conditions. This is what this letter is about. There is a laundry list of details setting forth what constitutes a notice that would serve this purpose. In particular, to be effective, the notification must identify particular works "at that site" and information "reasonably sufficient to permit the service provider to locate the material."
In short, the notice appears intended to be used as a notice of an actual infringement, and not as a blanket, preemptive device to "turn off" the ISP immunity for a given list of works. Clearly the Lucaslawyers are trying to test the limits of the law, or (more likely IMHO) are merely setting up later cases in an abundance of caution. ["Yer honah, we notified them and notified them and notified them a whole buncha' times, but they didn't do nothin'"]
The notice Lucasfilms presents does not appear to qualify, since it is a notice of potential infringements, and not a notice of an actual, present infringement. Here, Lucasfilms is attempting to use something like the notice to effectively "deputize" the world's ISP community as copyright police.
This is probably impermissible. In particular, the DMCA provides that: "Nothing in this section shall be construed to condition the applicability of [the exemption] on-- (1) a service provider monitoring its service or affirmatively seeking facts indicating infringing activity" provided that the ISP accomodates and does not interfere with "standard technical measures."
Of course, once there *is* an infringement, and once Lucas actually gives notice, that is another issue.
While I am a lawyer, readers should note that the preceding is merely a general summary of a few provisions of the DMCA and should not be deemed legal advice. Legal advice requires application of particular law to particular facts and in DMCA cases, the devil is certainly in the details and particular facts can make the case swing either way. Please forgive the multi-line disclaimer -- my carrier insists upon this sort of thing.
Not a bad word, particularly since the Patent Act expressly provides that patent owners can sue states. However, its not the last word. You need more words.
First of all, you must recognize that as between an act of Congress and a provision in the Constitution, the latter controls. Not bad for your position, since Article I, Section 8 provides that Congress can promulgate patent laws.
But its still not enough. You must also recognize that Amendments trump plain language of the Constitution. Even if an act of Congress falls within an enumerated power, if it is barred by a subsequent Amendment, no dice.
The Eleventh Amendment is the subject of this case, and the Supreme Court has already held that the Commerce Clause (also in Article I, Section 8) doesn't trump it. So, where would Congress get the power to "preempt" with regard to sovereign immunity -- the right of the STATE itself to be free from suit?
The Supreme Court is presently considering this issue, contemplating whether the 14th Amendment trumps the 11th in this regard.
Time will tell. Meanwhile, although you had the right idea to get the ball rolling, the full analysis is somewhat more interesting.
> By a straightforward application of the Seminole Tribe opinion, the States would lose.
Sorry -- this is a typo. The straightforward application of Seminole Tribe to the Florida Prepaid Credit patent case would have the states winning.