The process of reexamination is well-established in the Patent Act and available to everyone. If Eolas doesn't like the result, they can appeal internally through the Patent Office appeals process, or to a district court, and from either of those to the Federal Circuit.
Nobody gets a free ride.
Just for the record, Microsoft has been at the shitty end of the patent stick since the outset. They took a record loss in the STAC case until the bigger Eolas judgment. Although they got some relief in the Reiffin case invalidating a patent, that was later reversed. They know how it feels to get hurt for bad acting, and that the courts are not usually their friends.
Patents are broken down into small "claims", and a patent can easily have hundreds of these, if not thousands. Patents are not "broken down" into claims -- the claims ARE the grant of rights. Patents can not "easily have hundreds" of claims: the inventor pays, in addition to the application fee, for each claim, at the rate of $86 dollars for each independent claim (first 3 come with the initial fee) and $18 dollars for each dependent claim (first 20 claims overall come with the initial fee).
At that rate, a thousand indepedent claim patent would cost $86,000 in government fees alone. The lawyering would be even more expensive.
Very few patents have as many as a hundred claims, and most have twenty or less. I have never heard of a patent claim with "hundreds," although I would not be stunned if a few of the seven million have issued. I would be stunned if a patent with a thousand claims ever issued.
Even the most ridiculously simple idea gets divided into minute, easily digestible sections.
I have no idea what an "easily digestible" section is, or why that would be bad, but it has little to do with multiplicity of claims. The vast, vast majority of patent claims are dependent upon others, which means that they claim the same invention as their parent claims from which they depend, but LESS. They exist not for the purpose of claiming a different new section of the invention, but rather to provide narrower, less valuable protection that might survive an invalidity claim based on unknown prior art.
For example:
I claim:
1. A chair comprising a back, a seat and three or more legs.
2. The chair of claim 1, having four legs and two substantially parallel and arcuate members, each arcuate member connecting two of said legs so that the chair may reciprocally rock.
Claim two is not broader than claim 1 -- every rocking chair is a chair, and you cannot infringe claim 2 unless you also infringe claim 1. However, claim 1 might be invalidated over a stadium seat in view of a stool, while claim 2 survives. In that case, you couldn't sue people who just manufacture chairs, but you would be able to sue folks who make nice rocking chairs.
One such section I remember was included to explain the concept of a ZIP code, and how the company filing the patent was NOT the arbiter or owner of that concept, but was using it as a reference within their work, and that this was not a determining factor in their technology (they could have easily used another large-scale locational identifier, such as area code). Hence, their patent could be defensible when someone claimed in court that it was based on technology they had no claaim to ownership of.
The zip code is not patented when that happens, any more than the idea of an arcuate member in the example above. Rather the narrower (not broader) idea of a particular use of an arcuate member in the particular structure of the chair is claimed, in my example, and the VERY PUNY NARROW use of a zip code in the context of the particular invention there.
The Judge's ruling regarding Lindows' free-riding is clear. In the United States, where the standard is likelihood of confusion, that element is really a slam-dunk. Virtually identically spelled, identically sounding names for the same class of product, and designed, in large part, to provide a substitute for the original product. Slam-dunk.
Where Lindows has had excellent success in the US, and more power for them for taking on this monster to do this, is by arguing that the term "Windows" is generic for a GUI-based operating system. If they win, Microsoft loses huge, just huge. Now only would Lindows be allowed to continue, but Microsoft would lose the Windows trademark as against anyone else.
First, as others noted, Al gets licenses to everything he uses.
Second, the standards for Copyright, by parody and the Fair Use defense under Section 107 of Title 17, is different both in kind and in the underlying analytical framework than the parody defense against Trademark and Unfair competition claims.
The Supreme Court has established the standard that even commercial parody can be fair use under the Copyright Act (This is Campbell v. Acuff-Rose, the 2 Live Crew v. Roy Orbison case regarding "O Pretty Woman.")
The standard for trademark law is far more mercenary in nature. The question goes to fundamental purposes for the parody -- is it to make fun of something, primarily, incidentally making some value because its funny, or is it to borrow the good will from sombody to sell something. Another question goes to the extent to which confusion might actually arise -- are they really taking good will here. Finally, it goes to tarnishment. Many parodies survived, but many others didn't. When the parodizer uses sex, drugs or rock 'n roll to play with the original mark, they tend to lose, in part, because of the tarnishment of the original goodwill.
Cases are regional in nature, and very haphazard. I wouldn't presume to predict how it would come out, but I must note that there may well be real likelihood of confusion here, and more, if so, a real risk of tarnishment.
When the hard drive on my Wintel machine crapped out for the third time, I was stunned to discover that I couldn't get Windows running on any of the 68000 or PowerPC machines in my household. The hardware lock-in being too intense, I decided to limit myself to MacOSX on those machines.
Seriously, the fact that the guy had a lemon product from a lemon-prone model and attributes all his problems to the fact that he didn't have another Apple machine there and the MacOSX operating system raises one key issue.
The fact that he bought the iBook because he couldn't get a wireless card working on his brilliant commodity hardware is even weirder.
Re:Nice words, but they can't wash . . .
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Perens on Patents
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Again, you argue against a straw man. As noted, method and apparatus claims have been patentable for 200 years. The question is not whether a particular claim is directed to a patentable method or an unpatentable "mathematical algorithm," but rather what is meant by the latter term. Alsee would like the world to treat this body of law differently than many learned scholars would have, by a reductio ad absurdum that simply doesn't pass muster.
First, one must understand the judge-made exceptions, and their purpose, and then one must understand how they have been applied, not only in Diamond, but also its progeny, in particular State Street Bank and the AT&T cases.
Alsee, if you are genuinely interested in a studied colloquy, drop me an e-mail. The detailed rebuttal of your hand-waves is well beyond the scope of this forum and off the point of my argument to which you first responded.
Bottom line, many (certainly not all) software inventions (when novel and unobvious) are patentable, few (if any) songs are patentable in the sense you wish to argue, and the courts have little trouble distinguishing these. This is because the law is not as you think it is.
Re:Nice words, but they can't wash . . .
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Perens on Patents
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Let me guess, you aren't a programmer.
Bad guess. However, it is quite clear that you aren't a lawyer.
What an absurd statment. For 205 years such patents were illegal in the US.
Inventions for methods were, in fact, permited under the first Patent Act. There weren't a whole lot of software invention claims in the late 18th century, I will admit, but somehow I would think this may have to do with the state of the art at that time. Of course, this isn't responsive to my point, which was not your straw man claim that software patents have been claimed and practiced for hundreds of years, but rather what I wrote in fact.
Clearly, my point was that mere monopolies on inventions, manifest as methods or products, have not proved problematic in their own right. I'll let that argument stand on its merits.
There was an explicit rule stating that laws of nature, calculations, algorithms, etc. were not patentable.
That's still the law, by the way, so long as you substitute "mathematical algorithms" for algorithms, and lose the "etc.". We do disagree, of course, whether the present patent act permits claims on a law of nature, a calculation or a methematical algorithm. While laws of nature are certainly unpatentable, applications of those laws always have been, even though they may preclude many means to exploit the law.
It was only in 1981 that the US changed the rules to permit software patents at all. The Supreme Court screwed up and ruled to uphold a patent on a method to calculate a number (Diamond v. Diehr). They patented a math function to calculate how long to bake rubber to reach the proper hardness.
And only a few years before Diamond, in Gottschalk v. Benson, when there was perceived to be a conflict between software inventions and the judge-made "laws of nature" rule.
Now, how, exactly did they screw up? Are you arguing they got the law wrong? On what basis do you draw your conclusions, other than you disagree, ipse dixit, with the result?
Rather than announcing your rules as right, and decrying as non-authoritative the final pronouncements of the Supreme Court of the United States, would you care to propose at least a reason for your argument?
As far as I know it's only the US and Japan that are STUPID enough to permit patents on math and calculations and algorithms, and recently did they remove the rules against them.
did writing in capital letters make the statement more persuasive? was there an argument at all, or just name-calling?
It's not about overbroad software patents or obvious software patents, the problem is permitting ANY patents of software at all.
Because you say so?
YOU CANNOT PATENT MATH.
Uhuh? And had I written, "you can't patent physics," but in large letters, would that be an argument against patents relying on physics?
See, all evidence is to the contrary. Software patents are patentable in the US, and fully enforceable. Merely insisting they are wrong doesn't make it so. And merely insisting they will destroy the economy is inconsistent with hundreds of years of experience with the patent system.
Capitalizing your claims doesn't make much of an argument. Bruce's generalization doesn't help either. Changes to the patent system that are actually possible should be pursued, particularly when they hurt the system -- as is the case when a bad patent issues.
In the meanwhile, you are clearly full of capital letters, but somewhat devoid of a nuanced understanding of the patent law.
Indeed, there are three classes of arguments we have seen: (i) patents are bad; (ii) software patents are bad; and (iii) bad software patents are bad.
While i have seen credible arguments in support of (i) and (iii), there are rarely more than capitalized feeble assertions of nonfalsifiable propositions in support of (ii), much as we see in the previous message.
Let's see, using a tag format like XML for word processing documents. Has anyone looked at, oh, SGML recently? (Interestingly, I note that Microsoft has removed from TechNet the old articles on SGML and Word -- and i can't find them on archive.net -- anybody seen them? (http://www.microsoft.com/technet/desk/office/word/sgmltool/sgml_fct.htm)).
Microsoft will claim what they can, and get what they can get. They won't get what they seek, certainly not in the US, and the EU is tougher on software arts patents than the US.
The claims are ludicrous:
1. A computer-readable medium having computer-executable components, comprising:
a first component for reading a word-processor document stored as a single XML file; a second component that utilizes an XSD for interpreting the word-processor document, and a third component for performing an action on the word-processor document.
Nice words, but they can't wash . . .
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We're looking at a future where only the very largest companies will be able to implement software, and it will technically be illegal for other people to do so.
Damned good rhetoric, Bruce, but it is too sweeping a generalization, and cannot support a call for change. Experience through 200 years of industry demonstrates that patents aren't a problem to innovation merely because they create exclusive rights in some types of software development, except when they are improvidently granted.
The problem, to me, isn't that patents are granted in software, and it isn't even problematic that bad patents are granted in software. To me, the problem -- and I believe it is a serious problem -- is that the legal system does not provide adequate quality assurance to neutralize the bad effects of that software.
It is not that the Congress hasn't tried. Relatively low-cost procedures for taking bad patents out of circulation, such as inter partes reexamination were created, but alas, with modifications that made them too expensive or too toothless to have the broad-sweeping effect that was desired. Ironically, it was large entities, such as IBM who were promoting these low-cost Q/A procedures, while the small "independent inventor" lobby fiercely opposed them.
I believe this is the area where the most change is still possible, and the biggest bang for the buck to cure the problem exists. It would be better for luminaries like Bruce to push for repairs of post-issue Q/A than to promote what is, essentially, anti-patent FUD.
We can make a difference, but we are not going to see huge changes.
Actually, this is an ordinary application of a fairly common legal point. If you have enough evidence to show that SOMEONE has committed a tort, and some plausible basis for attempting to identify the plaintiff, but not enough to name them in the complaint, you may file a "John Doe" complaint, and then use routine discovery (particularly of third parties) to obtain more detailed information.
RIAA tried to avoid that process by using the DMCA subpoena provisions, and got rebuffed. Now they are going through the routine process that they would have to have done without the DMCA. In this case they are very likely to prevail, by the way.
Just another step in the P2P wars. This one is not terribly controversial.
I very much like the rhetoric of calling Sony "the Home Taping Decision," and will probably adopt that in the future, but it is important to focus on what the case was ultimately about -- it does not bless home taping, just time-shifting, and not in ever case either.
The case was about this: whether Sony is liable to the studios for manufacturing and selling the Betamax, when consumers (allegely more than 50% were) can use the machine to engage in copyright infringtement. The question wasn't whether some users were infringing (there was evidence undisputed by Sony that they were), but rather whether Sony should be able to sell the machine to the "good apples," without liability. Betamaxes don't infringe, people do!
The Supreme Court set up a rule: the seller of a mechanism that can be used to infringe is not contribution if the mechanism is even capable of a substantial non-infringing use. The question isn't 'how things were used," but how it was possible to use them. Thus, the Court considered, if there exists the possibility of a substantial noninfringing use, the studios lose.
So how can you use a VCR that's non-infringing? The Court considered the practice of 'time-shifting," that is, setting the machine to record something at one time, to be viewed at another time.
THAT WAS THE ONLY PRACTICE OF CONSUMERS THAT WAS DISCUSSED.
At any rate, the Supes found time shifting, as they described it, to be fair use. Fair use is not infringing, and so Sony was free to own the Betamax market. (Talk about Phyrric victory!)
So the case was, indeed, a landmark for technology regulation using the copyright act, but it really was limited in terms of what it said about home recording. The only conduct blessed was, essentially, recording the news to play it back later. Left unaddressed was recording a tape for an archival library to be played more than once, making a tape of another's for home use, and so forth.
For the longest time, solid IP lawyers thought that Sony would dispose unceremoniously of the RIAA's claims in Napster. (Ironically, Sony was a co-plaintiff in Napster!). Alas, the 9th Circuit (the same 9th circuit reversed for its "substantial infringing uses" test in Sony) didn't see it that way. Even more alas, Napster didn't survive to appeal the Circuit court opinion to the Supreme Court.
In the 2000 election, the machines most certainly were not identical. Many different technologies and machines were used, one point that the "conservative" Republicans made in the briefs to argue that the Florida Supreme Court decision should be reversed on equal opportunity grounds.
In particular, affluent communities tended to use mark-sense, while less affluent communities tended to use punch-cards. Even less affluent communities had older machines in greater disrepair.
All of these points were very well documented for the person who insists on reading things closely.
The Congress has created sentencing guidelines that make sentencing a virtual "fill out the scoresheet" process. In the absence of a plea-bargain, it would be rare that a judge would have much to say about it at all.
there is election case law all over the country. nearly all of it, so far as I can discern, places the measurable intent of the voter above all other concerns.
It has always been the law in the United States, so far as I can tell. I haven't looked at this since the 2000 election fiasco, but when I did the research, the first case I saw of this type was either in the late 18th century or early 19th. There is similar case law from other nations before that time.
There is a vast amount of case law in this arena nationwide, and virtually all of it deals with older, "mark the paper" technologies. Where the voter has marked the ballot ambiguously (in the eyes of the party challenging the ballot), but clearly enough to discern intent (in the eyes of the party seeking to have the ballot counted), the courts routinely favor allowing the vote to count.
There are many reasons for this, not the least of which is the absolutely ridiculous way grown men and women behave when a close, hotly contested election comes down to an audit of voting records. Suddenly, people deny the absolutely clear intent of the voter with respect to a ballot, where an electionworker squashed a fly over another box, but the X with initials, and the signed affidavit "Yes, I really meant to vote for George" appears by the other box. Likewise, people get childish, treating the slightest deviation from flat normal as evidence of an intent to make a pregnant chad.
The fact is, you have run the election, and we actually need to adjudicate who won. The question is whether we are going to have hypertechnical rules (that will still be argued fiercely as they are bent by litigants), or rules that permit an adjudicating party to use responsible and reasonable rules consistent with general democratic principles. Arguments for both sides might be made, but the hypertechnical, leave them flat if I am not happy with the form of the ballot, rule is not only a minority position, but rather is the law in NO STATE IN THIS COUNTRY.
The law is what it is, and it has almost always been so. Deal with it.
More affluent communities, which in Florida tended to be predominantly white, were able to afford modernized, well-maintained and readily auditable mark-sense systems. Less affluent communities were not. The variation in technology was, in part, the problem.
Jeb truly did us wrong. After the debacle of the 2000 election, results like this are nothig less than the consequence of criminal recklessness. ..
Start a citizen initiative petition to Amend the constitution to put it plainly . ..
No election shall be held in this State, unless a tangible and reliable record of each ballot submitted is maintained for purposes of verifying its results.
Until we do something like this, politicians are going to continue jerking us around and treating the award of election architecture contracts as yet another form of spoils.
The claim of "unreliability" is mostly FUD. I have decades-old machines still working fine. Some didn't last so long, true. But I have far more COTS PC machines that didn't make it so long either.
Enjoy the rhetoric, but you can't name another computer manufacturer that has a better deal without additional costs for extended warranties.
For the most part, my older laptops, both Mac and Wintel are too feeble and not cost-effectively upgradeable. I do tend to buy new machines every three or four years, retiring my front-line machines to back-office and server farm things suitable for POS and ancient hardware.
I agree that a machine should last more than 1 year. Most Macs generally do -- I have some that are decades old and still working fine. My early Apple ][ (not plus or e) still works fine. So what?
The question is whether Apple is bound, legally or otherwise, to repair an out-of-warranty machine. Answer is clear legally. Morally, they are on no higher or lower ground than any other corporation responsible to its shareholders -- they generally do not.
Apple provides an effective four year warranty, one year for free, three more for a few hundred bucks if you don't destroy the machine before you buy.
It is one thing to "expect your equipmnt to work longer than the warranty is valid." It is another to expect legal or other recourse when it does not.
"He told me to replace the factory installed RAM with the original RAM because the RAM might be the problem"
say, what? replace factory installed ram with original ram? what does that mean (sounds to me like an admission he WAS screwing around with the machine)?
Anyway -- this isn't an inherent problem with an iBook. He is claiming a straight breach of contract, and the results are ultimately fact-specific (whether his motherboard was, in fact, damaged by him) -- HARDLY a basis for a class action. Given the pictures he shows at his website, I doubt he is particularly clever, either legally or technically.
Apple's extended warranty program is very reasonable and their service quite fine. I'm really not sure what you are expecting from this rather straightforward business deal:
1) you pay a price for a computer. It is warranted to be free of material defects for a year, and they promise to repair or replace it during that period for free;
2) if you would like them to support the machine thereafter, you can pay a few hundred dollars to extend that warranty for an additional three years, more than the usual lifetime of any reaonable personal computer;
3) if you don't, Apple WILL repair your machine on a case by case basis -- they will fix a machine in generally ok condition for a fixed fee and, except for certain serious problems, that fixed fee (just a bit more than the AppleCare purchase by the way) will get you a virtually refurbished machine back.
That WAS the deal -- it was black and white. You didn't take the deal, and now have a machine that needs to be repaired. I understand that you would rather not pay for it. Aside from that, what, exactly, is your complaint?
I have been buying apple product for decades, and have had machines die at various stages of their life-cycle. I have also bought products from other manufacturers. I find it fair to say that this wanker doesn't really seem to have anything close to a complaint.
I have NEVER had Apple refuse service durring the warranty period, and their work has been exemplary. I have had machines die before and after the warranty period, and it is rarely problematic to have them serviced. AppleCare is a good deal, although I haven't bought it for all my machines -- and when I don't, I attribute it to my own bad judgement/luck, rather than blaming the failure to buy the very reasonable extended warranty.
I would be frankly astonished if there was any legal cause of action for a post-warranty failure that Apple refused to fix for free. Apple's warranty and service are comparable to that of the industry at large, better than some and not as good as others, but certainly not an unreasonable business practice.
The guy's website seems more like whining to me than a legitimate complaint.
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The process of reexamination is well-established in the Patent Act and available to everyone. If Eolas doesn't like the result, they can appeal internally through the Patent Office appeals process, or to a district court, and from either of those to the Federal Circuit.
Nobody gets a free ride.
Just for the record, Microsoft has been at the shitty end of the patent stick since the outset. They took a record loss in the STAC case until the bigger Eolas judgment. Although they got some relief in the Reiffin case invalidating a patent, that was later reversed. They know how it feels to get hurt for bad acting, and that the courts are not usually their friends.
Patents are broken down into small "claims", and a patent can easily have hundreds of these, if not thousands.
Patents are not "broken down" into claims -- the claims ARE the grant of rights. Patents can not "easily have hundreds" of claims: the inventor pays, in addition to the application fee, for each claim, at the rate of $86 dollars for each independent claim (first 3 come with the initial fee) and $18 dollars for each dependent claim (first 20 claims overall come with the initial fee).
At that rate, a thousand indepedent claim patent would cost $86,000 in government fees alone. The lawyering would be even more expensive.
Very few patents have as many as a hundred claims, and most have twenty or less. I have never heard of a patent claim with "hundreds," although I would not be stunned if a few of the seven million have issued. I would be stunned if a patent with a thousand claims ever issued.
Even the most ridiculously simple idea gets divided into minute, easily digestible sections.
I have no idea what an "easily digestible" section is, or why that would be bad, but it has little to do with multiplicity of claims. The vast, vast majority of patent claims are dependent upon others, which means that they claim the same invention as their parent claims from which they depend, but LESS. They exist not for the purpose of claiming a different new section of the invention, but rather to provide narrower, less valuable protection that might survive an invalidity claim based on unknown prior art.
For example:
I claim:
1. A chair comprising a back, a seat and three or more legs.
2. The chair of claim 1, having four legs and two substantially parallel and arcuate members, each arcuate member connecting two of said legs so that the chair may reciprocally rock.
Claim two is not broader than claim 1 -- every rocking chair is a chair, and you cannot infringe claim 2 unless you also infringe claim 1. However, claim 1 might be invalidated over a stadium seat in view of a stool, while claim 2 survives. In that case, you couldn't sue people who just manufacture chairs, but you would be able to sue folks who make nice rocking chairs.
One such section I remember was included to explain the concept of a ZIP code, and how the company filing the patent was NOT the arbiter or owner of that concept, but was using it as a reference within their work, and that this was not a determining factor in their technology (they could have easily used another large-scale locational identifier, such as area code). Hence, their patent could be defensible when someone claimed in court that it was based on technology they had no claaim to ownership of.
The zip code is not patented when that happens, any more than the idea of an arcuate member in the example above. Rather the narrower (not broader) idea of a particular use of an arcuate member in the particular structure of the chair is claimed, in my example, and the VERY PUNY NARROW use of a zip code in the context of the particular invention there.
The Judge's ruling regarding Lindows' free-riding is clear. In the United States, where the standard is likelihood of confusion, that element is really a slam-dunk. Virtually identically spelled, identically sounding names for the same class of product, and designed, in large part, to provide a substitute for the original product. Slam-dunk.
Where Lindows has had excellent success in the US, and more power for them for taking on this monster to do this, is by arguing that the term "Windows" is generic for a GUI-based operating system. If they win, Microsoft loses huge, just huge. Now only would Lindows be allowed to continue, but Microsoft would lose the Windows trademark as against anyone else.
with respect to parody.
First, as others noted, Al gets licenses to everything he uses.
Second, the standards for Copyright, by parody and the Fair Use defense under Section 107 of Title 17, is different both in kind and in the underlying analytical framework than the parody defense against Trademark and Unfair competition claims.
The Supreme Court has established the standard that even commercial parody can be fair use under the Copyright Act (This is Campbell v. Acuff-Rose, the 2 Live Crew v. Roy Orbison case regarding "O Pretty Woman.")
The standard for trademark law is far more mercenary in nature. The question goes to fundamental purposes for the parody -- is it to make fun of something, primarily, incidentally making some value because its funny, or is it to borrow the good will from sombody to sell something. Another question goes to the extent to which confusion might actually arise -- are they really taking good will here. Finally, it goes to tarnishment. Many parodies survived, but many others didn't. When the parodizer uses sex, drugs or rock 'n roll to play with the original mark, they tend to lose, in part, because of the tarnishment of the original goodwill.
Cases are regional in nature, and very haphazard. I wouldn't presume to predict how it would come out, but I must note that there may well be real likelihood of confusion here, and more, if so, a real risk of tarnishment.
When the hard drive on my Wintel machine crapped out for the third time, I was stunned to discover that I couldn't get Windows running on any of the 68000 or PowerPC machines in my household. The hardware lock-in being too intense, I decided to limit myself to MacOSX on those machines.
Seriously, the fact that the guy had a lemon product from a lemon-prone model and attributes all his problems to the fact that he didn't have another Apple machine there and the MacOSX operating system raises one key issue.
The fact that he bought the iBook because he couldn't get a wireless card working on his brilliant commodity hardware is even weirder.
Again, you argue against a straw man. As noted, method and apparatus claims have been patentable for 200 years. The question is not whether a particular claim is directed to a patentable method or an unpatentable "mathematical algorithm," but rather what is meant by the latter term. Alsee would like the world to treat this body of law differently than many learned scholars would have, by a reductio ad absurdum that simply doesn't pass muster.
First, one must understand the judge-made exceptions, and their purpose, and then one must understand how they have been applied, not only in Diamond, but also its progeny, in particular State Street Bank and the AT&T cases.
Alsee, if you are genuinely interested in a studied colloquy, drop me an e-mail. The detailed rebuttal of your hand-waves is well beyond the scope of this forum and off the point of my argument to which you first responded.
Bottom line, many (certainly not all) software inventions (when novel and unobvious) are patentable, few (if any) songs are patentable in the sense you wish to argue, and the courts have little trouble distinguishing these. This is because the law is not as you think it is.
Let me guess, you aren't a programmer.
Bad guess. However, it is quite clear that you aren't a lawyer.
What an absurd statment. For 205 years such patents were illegal in the US.
Inventions for methods were, in fact, permited under the first Patent Act. There weren't a whole lot of software invention claims in the late 18th century, I will admit, but somehow I would think this may have to do with the state of the art at that time. Of course, this isn't responsive to my point, which was not your straw man claim that software patents have been claimed and practiced for hundreds of years, but rather what I wrote in fact.
Clearly, my point was that mere monopolies on inventions, manifest as methods or products, have not proved problematic in their own right. I'll let that argument stand on its merits.
There was an explicit rule stating that laws of nature, calculations, algorithms, etc. were not patentable.
That's still the law, by the way, so long as you substitute "mathematical algorithms" for algorithms, and lose the "etc.". We do disagree, of course, whether the present patent act permits claims on a law of nature, a calculation or a methematical algorithm. While laws of nature are certainly unpatentable, applications of those laws always have been, even though they may preclude many means to exploit the law.
It was only in 1981 that the US changed the rules to permit software patents at all. The Supreme Court screwed up and ruled to uphold a patent on a method to calculate a number (Diamond v. Diehr). They patented a math function to calculate how long to bake rubber to reach the proper hardness.
And only a few years before Diamond, in Gottschalk v. Benson, when there was perceived to be a conflict between software inventions and the judge-made "laws of nature" rule.
Now, how, exactly did they screw up? Are you arguing they got the law wrong? On what basis do you draw your conclusions, other than you disagree, ipse dixit, with the result?
Rather than announcing your rules as right, and decrying as non-authoritative the final pronouncements of the Supreme Court of the United States, would you care to propose at least a reason for your argument?
As far as I know it's only the US and Japan that are STUPID enough to permit patents on math and calculations and algorithms, and recently did they remove the rules against them.
did writing in capital letters make the statement more persuasive? was there an argument at all, or just name-calling?
It's not about overbroad software patents or obvious software patents, the problem is permitting ANY patents of software at all.
Because you say so?
YOU CANNOT PATENT MATH.
Uhuh? And had I written, "you can't patent physics," but in large letters, would that be an argument against patents relying on physics?
See, all evidence is to the contrary. Software patents are patentable in the US, and fully enforceable. Merely insisting they are wrong doesn't make it so. And merely insisting they will destroy the economy is inconsistent with hundreds of years of experience with the patent system.
Capitalizing your claims doesn't make much of an argument. Bruce's generalization doesn't help either. Changes to the patent system that are actually possible should be pursued, particularly when they hurt the system -- as is the case when a bad patent issues.
In the meanwhile, you are clearly full of capital letters, but somewhat devoid of a nuanced understanding of the patent law.
Indeed, there are three classes of arguments we have seen: (i) patents are bad; (ii) software patents are bad; and (iii) bad software patents are bad.
While i have seen credible arguments in support of (i) and (iii), there are rarely more than capitalized feeble assertions of nonfalsifiable propositions in support of (ii), much as we see in the previous message.
for my part, I
Let's see, using a tag format like XML for word processing documents. Has anyone looked at, oh, SGML recently? (Interestingly, I note that Microsoft has removed from TechNet the old articles on SGML and Word -- and i can't find them on archive.net -- anybody seen them? (http://www.microsoft.com/technet/desk/office/word /sgmltool/sgml_fct.htm)).
Microsoft will claim what they can, and get what they can get. They won't get what they seek, certainly not in the US, and the EU is tougher on software arts patents than the US.
The claims are ludicrous:
1. A computer-readable medium having computer-executable components, comprising:
a first component for reading a word-processor document stored as a single XML file;
a second component that utilizes an XSD for interpreting the word-processor document, and
a third component for performing an action on the word-processor document.
We're looking at a future where only the very largest companies will be able to implement software, and it will technically be illegal for other people to do so.
Damned good rhetoric, Bruce, but it is too sweeping a generalization, and cannot support a call for change. Experience through 200 years of industry demonstrates that patents aren't a problem to innovation merely because they create exclusive rights in some types of software development, except when they are improvidently granted.
The problem, to me, isn't that patents are granted in software, and it isn't even problematic that bad patents are granted in software. To me, the problem -- and I believe it is a serious problem -- is that the legal system does not provide adequate quality assurance to neutralize the bad effects of that software.
It is not that the Congress hasn't tried. Relatively low-cost procedures for taking bad patents out of circulation, such as inter partes reexamination were created, but alas, with modifications that made them too expensive or too toothless to have the broad-sweeping effect that was desired. Ironically, it was large entities, such as IBM who were promoting these low-cost Q/A procedures, while the small "independent inventor" lobby fiercely opposed them.
I believe this is the area where the most change is still possible, and the biggest bang for the buck to cure the problem exists. It would be better for luminaries like Bruce to push for repairs of post-issue Q/A than to promote what is, essentially, anti-patent FUD.
We can make a difference, but we are not going to see huge changes.
Actually, this is an ordinary application of a fairly common legal point. If you have enough evidence to show that SOMEONE has committed a tort, and some plausible basis for attempting to identify the plaintiff, but not enough to name them in the complaint, you may file a "John Doe" complaint, and then use routine discovery (particularly of third parties) to obtain more detailed information.
RIAA tried to avoid that process by using the DMCA subpoena provisions, and got rebuffed. Now they are going through the routine process that they would have to have done without the DMCA. In this case they are very likely to prevail, by the way.
Just another step in the P2P wars. This one is not terribly controversial.
I very much like the rhetoric of calling Sony "the Home Taping Decision," and will probably adopt that in the future, but it is important to focus on what the case was ultimately about -- it does not bless home taping, just time-shifting, and not in ever case either.
The case was about this: whether Sony is liable to the studios for manufacturing and selling the Betamax, when consumers (allegely more than 50% were) can use the machine to engage in copyright infringtement. The question wasn't whether some users were infringing (there was evidence undisputed by Sony that they were), but rather whether Sony should be able to sell the machine to the "good apples," without liability. Betamaxes don't infringe, people do!
The Supreme Court set up a rule: the seller of a mechanism that can be used to infringe is not contribution if the mechanism is even capable of a substantial non-infringing use. The question isn't 'how things were used," but how it was possible to use them. Thus, the Court considered, if there exists the possibility of a substantial noninfringing use, the studios lose.
So how can you use a VCR that's non-infringing? The Court considered the practice of 'time-shifting," that is, setting the machine to record something at one time, to be viewed at another time.
THAT WAS THE ONLY PRACTICE OF CONSUMERS THAT WAS DISCUSSED.
At any rate, the Supes found time shifting, as they described it, to be fair use. Fair use is not infringing, and so Sony was free to own the Betamax market. (Talk about Phyrric victory!)
So the case was, indeed, a landmark for technology regulation using the copyright act, but it really was limited in terms of what it said about home recording. The only conduct blessed was, essentially, recording the news to play it back later. Left unaddressed was recording a tape for an archival library to be played more than once, making a tape of another's for home use, and so forth.
For the longest time, solid IP lawyers thought that Sony would dispose unceremoniously of the RIAA's claims in Napster. (Ironically, Sony was a co-plaintiff in Napster!). Alas, the 9th Circuit (the same 9th circuit reversed for its "substantial infringing uses" test in Sony) didn't see it that way. Even more alas, Napster didn't survive to appeal the Circuit court opinion to the Supreme Court.
In the 2000 election, the machines most certainly were not identical. Many different technologies and machines were used, one point that the "conservative" Republicans made in the briefs to argue that the Florida Supreme Court decision should be reversed on equal opportunity grounds.
In particular, affluent communities tended to use mark-sense, while less affluent communities tended to use punch-cards. Even less affluent communities had older machines in greater disrepair.
All of these points were very well documented for the person who insists on reading things closely.
The Congress has created sentencing guidelines that make sentencing a virtual "fill out the scoresheet" process. In the absence of a plea-bargain, it would be rare that a judge would have much to say about it at all.
standard bully move -- threaten a lawsuit to a company known to be contemplating an ipo?
there is election case law all over the country. nearly all of it, so far as I can discern, places the measurable intent of the voter above all other concerns.
It has always been the law in the United States, so far as I can tell. I haven't looked at this since the 2000 election fiasco, but when I did the research, the first case I saw of this type was either in the late 18th century or early 19th. There is similar case law from other nations before that time.
There is a vast amount of case law in this arena nationwide, and virtually all of it deals with older, "mark the paper" technologies. Where the voter has marked the ballot ambiguously (in the eyes of the party challenging the ballot), but clearly enough to discern intent (in the eyes of the party seeking to have the ballot counted), the courts routinely favor allowing the vote to count.
There are many reasons for this, not the least of which is the absolutely ridiculous way grown men and women behave when a close, hotly contested election comes down to an audit of voting records. Suddenly, people deny the absolutely clear intent of the voter with respect to a ballot, where an electionworker squashed a fly over another box, but the X with initials, and the signed affidavit "Yes, I really meant to vote for George" appears by the other box. Likewise, people get childish, treating the slightest deviation from flat normal as evidence of an intent to make a pregnant chad.
The fact is, you have run the election, and we actually need to adjudicate who won. The question is whether we are going to have hypertechnical rules (that will still be argued fiercely as they are bent by litigants), or rules that permit an adjudicating party to use responsible and reasonable rules consistent with general democratic principles. Arguments for both sides might be made, but the hypertechnical, leave them flat if I am not happy with the form of the ballot, rule is not only a minority position, but rather is the law in NO STATE IN THIS COUNTRY.
The law is what it is, and it has almost always been so. Deal with it.
More affluent communities, which in Florida tended to be predominantly white, were able to afford modernized, well-maintained and readily auditable mark-sense systems. Less affluent communities were not. The variation in technology was, in part, the problem.
Jeb truly did us wrong. After the debacle of the 2000 election, results like this are nothig less than the consequence of criminal recklessness. . .
.
Start a citizen initiative petition to Amend the constitution to put it plainly . .
No election shall be held in this State, unless a tangible and reliable record of each ballot submitted is maintained for purposes of verifying its results.
Until we do something like this, politicians are going to continue jerking us around and treating the award of election architecture contracts as yet another form of spoils.
The claim of "unreliability" is mostly FUD. I have decades-old machines still working fine. Some didn't last so long, true. But I have far more COTS PC machines that didn't make it so long either.
Enjoy the rhetoric, but you can't name another computer manufacturer that has a better deal without additional costs for extended warranties.
For the most part, my older laptops, both Mac and Wintel are too feeble and not cost-effectively upgradeable. I do tend to buy new machines every three or four years, retiring my front-line machines to back-office and server farm things suitable for POS and ancient hardware.
No. If they didn't repair the problem, you have them for breach of warranty -- they must repair or replace.
And last time I got a late repair, they honored an incidental failure 90 days after close of warranty.
I agree that a machine should last more than 1 year. Most Macs generally do -- I have some that are decades old and still working fine. My early Apple ][ (not plus or e) still works fine. So what?
The question is whether Apple is bound, legally or otherwise, to repair an out-of-warranty machine. Answer is clear legally. Morally, they are on no higher or lower ground than any other corporation responsible to its shareholders -- they generally do not.
Apple provides an effective four year warranty, one year for free, three more for a few hundred bucks if you don't destroy the machine before you buy.
It is one thing to "expect your equipmnt to work longer than the warranty is valid." It is another to expect legal or other recourse when it does not.
That's the deal.
"He told me to replace the factory installed RAM with the original RAM because the RAM might be the problem"
say, what? replace factory installed ram with original ram? what does that mean (sounds to me like an admission he WAS screwing around with the machine)?
Anyway -- this isn't an inherent problem with an iBook. He is claiming a straight breach of contract, and the results are ultimately fact-specific (whether his motherboard was, in fact, damaged by him) -- HARDLY a basis for a class action. Given the pictures he shows at his website, I doubt he is particularly clever, either legally or technically.
Apple's extended warranty program is very reasonable and their service quite fine. I'm really not sure what you are expecting from this rather straightforward business deal:
1) you pay a price for a computer. It is warranted to be free of material defects for a year, and they promise to repair or replace it during that period for free;
2) if you would like them to support the machine thereafter, you can pay a few hundred dollars to extend that warranty for an additional three years, more than the usual lifetime of any reaonable personal computer;
3) if you don't, Apple WILL repair your machine on a case by case basis -- they will fix a machine in generally ok condition for a fixed fee and, except for certain serious problems, that fixed fee (just a bit more than the AppleCare purchase by the way) will get you a virtually refurbished machine back.
That WAS the deal -- it was black and white. You didn't take the deal, and now have a machine that needs to be repaired. I understand that you would rather not pay for it. Aside from that, what, exactly, is your complaint?
I have been buying apple product for decades, and have had machines die at various stages of their life-cycle. I have also bought products from other manufacturers. I find it fair to say that this wanker doesn't really seem to have anything close to a complaint.
I have NEVER had Apple refuse service durring the warranty period, and their work has been exemplary. I have had machines die before and after the warranty period, and it is rarely problematic to have them serviced. AppleCare is a good deal, although I haven't bought it for all my machines -- and when I don't, I attribute it to my own bad judgement/luck, rather than blaming the failure to buy the very reasonable extended warranty.
I would be frankly astonished if there was any legal cause of action for a post-warranty failure that Apple refused to fix for free. Apple's warranty and service are comparable to that of the industry at large, better than some and not as good as others, but certainly not an unreasonable business practice.
The guy's website seems more like whining to me than a legitimate complaint.