You know, I really should know better than to click on a tinyurl.com link on/.
I mean, in this case it's fine and funny and all that. But I just happily clicked without thinking of what goatse horrors might be waiting on the other side.
(did you lose to the lameness filter too? it had me by the balls... i typed something funny downthread that would've been much higher up but for my struggles with the lameness filter... then I gave up and started typing dots and dashes instead of.s and -s)
Clearly Georgia Tech has a long history of misspelling key words. Little known fact: "Georgia Tech" is a misspelling of "God We Suck"...:)/me points across the interstate and cackles.
I was confining myself to lay language, not writing a memo. My arm-based player example was meant as a statement that a simple description of the thing would (or should) not sufficiently describe the invention without more. Much more. And, further, that a lot of patents I see today are roughly equivalent to "trap mouse, let mouse die" for describing a "better" mousetrap.
Regardless of what you may have been lead to believe a lawyer is not required to challenge a patent or go to court.
And any corporate counsel who did not counsel his corporate client to get specialist representation to either challenge a patent or defend against an infringement action would be committing gross professional malpractice. Any corporate CEO who spent his or her time representing his or her company in such an action rather than running the business would either be deposed by the board or abandoned by the shareholders. Your theory might be fine for Jane Inventor working out of her garage, but a corporation would be insane to entrust itself to the "care" of management that didn't lawyer up when threatened by a (frivolous) patent infringement claim.
Well, yes. Promote innovation by creating a system through which technological advances could be disclosed to the public while allowing the original inventor to profit from the original design despite the disclosure while at the same time providing meat for people to improve the invention.
And, to answer your question, not damn many. Most of them are more like someone noting that a drinking glass isn't patented and quickly patenting the "Static Component Drinking Vessel."
I dunno, as a matter of policy, I'm quite happy to allow companies to recover their investment if they a) invent something new and b) open the invention sufficiently to encourage competitors. As a matter of practicality, the patent term is outrageously long for a period of rapid technological change and it has made the patent system into, essentially, a monopoly system for the practical life of a product, which *isn't* what the wacky Venetians had in mind when they created the patent system.
Yep, but they're selling the FM-less PodBuddy (the one I would buy, fwiw) for $69.99, or ~1/3 less than the FM PodBuddy. It will take them 1/3 longer (or more) to recoup their investment even assuming there was that much of a market for an iPod car mount without any sort of transmitter. So, yes, they *could* make it, but it might not be economically feasible for them to do so.
I agree completely with what you're saying about the routes that DVForge can take to avoid DLO's patent.
My point is that DVForge notes on their website that they cannot *afford* to challenge the patent, and that, despite the merit of their claim, they are surrendering to the threat.
That's the BS thing here: the patent system should be protecting DVForge (or at least giving them the chance to make a good faith argument), but DLO is counting on DVForge's unwillingness to spend tens of thousands of dollars in attorney's fees to find a way to market for a $23,000 invention that retails for ~$100.
So, according to the theory behind the patent system, you're right on the money, and if I had modpoints, you'd get them. But DLO is abusing the system.
Patents don't protect general functionality. Patents protect specific inventions. If patents produced a black box of functionality where the uniqueness was defined by outcomes rather than what happens inside the black box, the patent system wouldn't have lasted as long as it has. The current transmutation of the patent system into a system that protects outcomes (e.g., an arm-based digital media player mount with FM radio) rather than the specific elements that make it a unique and useful invention is threatening the real value that the patent system offers: providing inventors with an incentive to invent by protecting their profits from that specific invention over a short term.
Concerning "recovering costs", no, the US does not have a loser pays system, so DVForge would bear all attorney's fees in a patent dispute. They might be reimbursed for "costs", which are things like filing fees, but which are a trivial amount compared to what the lawyers would charge.
The problem with this is that the patent system now seems to be used to protect general categories of goods rather than *very* specific inventions. If DVForge was copying the other folks, then, yes, their patent should protect the other company. But patents were never meant to preclude improvements to an invention or independent inventions that accomplish the same purpose but with different mechanisms.
As for stifling innovation, the sad irony is that patents were intended to *promote* innovation, by allowing inventors to invent and then profit from their invention. Nothing wrong with that. But now inventors are using patents to protect their profits from that item *and* to force other inventors not to try to improve the item.
Stupid situation.
In other news, I was wanting to buy one of those PodBuddy things, since the competitor's item is, frankly, ugly as sin, and I don't need the FM transmitter part (DVForge has one without the transmitter).
See below. I was using 1983 as an example of the conflict between a literalist reading, original intent, reserved powers, and subsequent legislation.
(and, of course I agree it's constitutional. it's just an easy law to pick as an example of expansive use of legislative power by the federal government over the states.)
The law is surprisingly common sense, and its getting more and more common sense every year. The UCC (Uniform Commercial Code, adopted by the states to provide a common set of regulations for business transactions of various sorts at the state level) is surprisingly easy to deal with, mainly because it codifies standard practices.
The hard part about the law is that reading it is often like reading code. Certain elements tend to have very precise meanings and can cause "syntax errors" if used or interpreted incorrectly; both have wide variation in clarity and obfuscation depending on who writes it, how long they had, and what their personal interests were; and, there's generally a tremendous amount of crust that builds up over time because of lazy upkeep.
Real property law is especially bad, and is by far the least "common sense" of the areas of law we deal with today, though even property law is getting a little better.
And, one more thing, *case* law is often very, very accessible. The problem in the US is that since the late 1800s we've been codifying everything, passing laws left and right. It used to not be that way; most law was made in the courts under the common law, which allowed for flexibility and constant change. With codified law, we have a dual nightmare of a selfish bureaucracy (and, yes, lawyers) trying to protect their existence and the square-peg-round-hole problem of trying to make permanent laws that fit every single situation.
I'm not entirely sure how you think I'm confused. There are instances of legislative overreach into protected rights (when read literally) at both the state (nuisance laws) and federal (Sec. 1983, read in the light of the original intent of the Framers) levels. Not sure how that's confusing.
Hey, I feel bad for them. If you read the chain of responses just above, you'll see I'm quite sympathetic to the policy argument that we should protect homeowners in these types of situations. The problem is the legal definition of public use and that the majority and minority both offered good responses; the majority's was just a little more legally compelling based on government precedent.
As far as deprivation of rights is concerned, I have to say, the "Papers Please" case was far more disturbing than this. Eminent domain was already a broad power; this case just moved the ticker a little more in one direction, and for legally justifiable reasons based on the US Constitution.
(and, for what it's worth, if the construction hasn't started yet because of injunctions and so forth, it is entirely possible that a court *could* order title passed back to the original homeowners or that. What's ironic is that if a town council tried to use eminent domain to take the property back to return to the homeowners, that decision would almost certainly -- and correctly -- be struck down as an abusive use of the power.)
Actually you can restore title to land to the previous holder through a variety of legal theories and you can provide restitution (or even some equitable relief like forcing the developer to rebuild the property as it was) to the owner.
Basically the only thing I disagree with you about is the meaning of "public use." The problem is that "reading it literally" can produce at least 3 definitions, and where there are 3, why might there not be 4? Essentially you're talking about setting the *boundary* of "privatization" allowed for state action to be considered public as much as the amount of benefit by persons who cannot use the property but who nonetheless derive positive benefit from the foreclosing of the rights of others (call it a power theory and a utilitarian theory). Personally, if I read "public use" literally, I would tend to go *only* with your first definition above, and not the other two.
On the police power thing, I could make an argument that "nuisance laws" (and even 42 USC 1983 and similar) are, under a literal reading of the Constitution, unconstitutional attempts to legislate around the vast constitutional power given to states. So while I agree with the police power derivation of the nuisance actions, it's conceptually more useful to look at both police power and eminent domain as representing the powerful policy tools available to the state, even with the protections provided by the Bill of Rights and the Constitution.
Well, no, imho the Bill of Rights is mainly about limits on sovereign power, not specifying limits on personal rights, so on that point, I reckon we'd agree.
But, as a thought exercise, let's say say the Fifth Amendment prohibits takings not for a "public use." What's the definition of public use? We don't know. But later in the Bill of Rights, all powers not specifically enumerated therein are reserved to the states and the people, which, to me, suggests some deference to state definitions of "public use" and, of course, to the right of citizens to vote for their own concept of "public use."
The point of my previous post, though, was that we do live in an imperfect system that reflects a lot of baggage of 18th Century England. If we really want to change that, a single Supreme Court decision won't be very effective. Real change would have to come from changing the way property is titled or making political lobbying by organizations a criminal act or some such thing.
And, to repeat myself (sorry, but I just want to be clear), I'm not happy with the decision, because I have a pretty good idea in my head that if I pay $500,000 for a house, I should damn well be able to keep it. But that's, legally speaking, simply not the way the American property-rights structure is built.
Ok, that's certainly a good point, and if this were DailyKOS or Redstate, I'd give you a 4. And it makes my point even better.
I can make a legal argument that there's never been an absolute right to property in this country. Ever. We inherited a conception of real property from England that insisted that title for property originated in the Sovereign. We are, in a sense, vassals on the land of the state, exercising ownership at the sovereign's whim. The existence of the Fifth Amendment is an express recognition of that property system and an attempt (a rather liberal one, actually, for the times) to moderate the harsh effects of eminent domain.
Now, is that the way it SHOULD be? No, of course not, and I'd happily vote for an Amendment that vested absolute right to property in the property owner with some limited eminent domain leftover for public utilities, transportation, and other services owned by the government and paid for by tax revenues.
But the Supreme Court's job is mainly to interpret and clarify, and I can't say the majority was clearly wrong.
But don't you think the rich and powerful would find a way to screw the poor one way or another anyway? I dunno, I really don't agree with the actions that led to the case, but I didn't see any winning arguments from the dissent, at least nothing good enough to strip (or permanently limit) a valuable and inherent state power rather than trusting the political process to deal with it in most cases.
And, fwiw, there's never been anything remotely like an absolute right to private property in this country. But if we want to grant one or at least expressly define "public use", I'm happy to vote for an Amendment to accomplish that.
Why should Congress limit eminent domain if we can vote for the people who exercise it? The way I see it, if these town council folks don't get booted out in the next election, that's a referendum on their use of state power.
Slashdot Mirror
Much like Dr. Who..
You know, I really should know better than to click on a tinyurl.com link on /.
I mean, in this case it's fine and funny and all that. But I just happily clicked without thinking of what goatse horrors might be waiting on the other side.
As soon as iChat supports tabbed chat windows, I'll probably switch back to it. It feels so.. 2001.. to have multiple chat windows on my screen.
(did you lose to the lameness filter too? it had me by the balls... i typed something funny downthread that would've been much higher up but for my struggles with the lameness filter... then I gave up and started typing dots and dashes instead of .s and -s)
dashdashdash dotdotdotdot dashdot dashdashdash dot dotdotdot!!!!!!11!!1one
Clearly Georgia Tech has a long history of misspelling key words. Little known fact: "Georgia Tech" is a misspelling of "God We Suck" ... :) /me points across the interstate and cackles.
something about Google offering free Earth launches to orbit... heh.
Did you CALI patent law or something? :)
I was confining myself to lay language, not writing a memo. My arm-based player example was meant as a statement that a simple description of the thing would (or should) not sufficiently describe the invention without more. Much more. And, further, that a lot of patents I see today are roughly equivalent to "trap mouse, let mouse die" for describing a "better" mousetrap.
And any corporate counsel who did not counsel his corporate client to get specialist representation to either challenge a patent or defend against an infringement action would be committing gross professional malpractice. Any corporate CEO who spent his or her time representing his or her company in such an action rather than running the business would either be deposed by the board or abandoned by the shareholders. Your theory might be fine for Jane Inventor working out of her garage, but a corporation would be insane to entrust itself to the "care" of management that didn't lawyer up when threatened by a (frivolous) patent infringement claim.
Well, yes. Promote innovation by creating a system through which technological advances could be disclosed to the public while allowing the original inventor to profit from the original design despite the disclosure while at the same time providing meat for people to improve the invention.
And, to answer your question, not damn many. Most of them are more like someone noting that a drinking glass isn't patented and quickly patenting the "Static Component Drinking Vessel."
I dunno, as a matter of policy, I'm quite happy to allow companies to recover their investment if they a) invent something new and b) open the invention sufficiently to encourage competitors. As a matter of practicality, the patent term is outrageously long for a period of rapid technological change and it has made the patent system into, essentially, a monopoly system for the practical life of a product, which *isn't* what the wacky Venetians had in mind when they created the patent system.
Yep, but they're selling the FM-less PodBuddy (the one I would buy, fwiw) for $69.99, or ~1/3 less than the FM PodBuddy. It will take them 1/3 longer (or more) to recoup their investment even assuming there was that much of a market for an iPod car mount without any sort of transmitter. So, yes, they *could* make it, but it might not be economically feasible for them to do so.
Disappointing.
I agree completely with what you're saying about the routes that DVForge can take to avoid DLO's patent.
My point is that DVForge notes on their website that they cannot *afford* to challenge the patent, and that, despite the merit of their claim, they are surrendering to the threat.
That's the BS thing here: the patent system should be protecting DVForge (or at least giving them the chance to make a good faith argument), but DLO is counting on DVForge's unwillingness to spend tens of thousands of dollars in attorney's fees to find a way to market for a $23,000 invention that retails for ~$100.
So, according to the theory behind the patent system, you're right on the money, and if I had modpoints, you'd get them. But DLO is abusing the system.
Patents don't protect general functionality. Patents protect specific inventions. If patents produced a black box of functionality where the uniqueness was defined by outcomes rather than what happens inside the black box, the patent system wouldn't have lasted as long as it has. The current transmutation of the patent system into a system that protects outcomes (e.g., an arm-based digital media player mount with FM radio) rather than the specific elements that make it a unique and useful invention is threatening the real value that the patent system offers: providing inventors with an incentive to invent by protecting their profits from that specific invention over a short term.
Concerning "recovering costs", no, the US does not have a loser pays system, so DVForge would bear all attorney's fees in a patent dispute. They might be reimbursed for "costs", which are things like filing fees, but which are a trivial amount compared to what the lawyers would charge.
The problem with this is that the patent system now seems to be used to protect general categories of goods rather than *very* specific inventions. If DVForge was copying the other folks, then, yes, their patent should protect the other company. But patents were never meant to preclude improvements to an invention or independent inventions that accomplish the same purpose but with different mechanisms.
As for stifling innovation, the sad irony is that patents were intended to *promote* innovation, by allowing inventors to invent and then profit from their invention. Nothing wrong with that. But now inventors are using patents to protect their profits from that item *and* to force other inventors not to try to improve the item.
Stupid situation.
In other news, I was wanting to buy one of those PodBuddy things, since the competitor's item is, frankly, ugly as sin, and I don't need the FM transmitter part (DVForge has one without the transmitter).
See below. I was using 1983 as an example of the conflict between a literalist reading, original intent, reserved powers, and subsequent legislation.
(and, of course I agree it's constitutional. it's just an easy law to pick as an example of expansive use of legislative power by the federal government over the states.)
The law is surprisingly common sense, and its getting more and more common sense every year. The UCC (Uniform Commercial Code, adopted by the states to provide a common set of regulations for business transactions of various sorts at the state level) is surprisingly easy to deal with, mainly because it codifies standard practices.
The hard part about the law is that reading it is often like reading code. Certain elements tend to have very precise meanings and can cause "syntax errors" if used or interpreted incorrectly; both have wide variation in clarity and obfuscation depending on who writes it, how long they had, and what their personal interests were; and, there's generally a tremendous amount of crust that builds up over time because of lazy upkeep.
Real property law is especially bad, and is by far the least "common sense" of the areas of law we deal with today, though even property law is getting a little better.
And, one more thing, *case* law is often very, very accessible. The problem in the US is that since the late 1800s we've been codifying everything, passing laws left and right. It used to not be that way; most law was made in the courts under the common law, which allowed for flexibility and constant change. With codified law, we have a dual nightmare of a selfish bureaucracy (and, yes, lawyers) trying to protect their existence and the square-peg-round-hole problem of trying to make permanent laws that fit every single situation.
I'm not entirely sure how you think I'm confused. There are instances of legislative overreach into protected rights (when read literally) at both the state (nuisance laws) and federal (Sec. 1983, read in the light of the original intent of the Framers) levels. Not sure how that's confusing.
Hey, I feel bad for them. If you read the chain of responses just above, you'll see I'm quite sympathetic to the policy argument that we should protect homeowners in these types of situations. The problem is the legal definition of public use and that the majority and minority both offered good responses; the majority's was just a little more legally compelling based on government precedent.
As far as deprivation of rights is concerned, I have to say, the "Papers Please" case was far more disturbing than this. Eminent domain was already a broad power; this case just moved the ticker a little more in one direction, and for legally justifiable reasons based on the US Constitution.
(and, for what it's worth, if the construction hasn't started yet because of injunctions and so forth, it is entirely possible that a court *could* order title passed back to the original homeowners or that. What's ironic is that if a town council tried to use eminent domain to take the property back to return to the homeowners, that decision would almost certainly -- and correctly -- be struck down as an abusive use of the power.)
This is why we have the 2nd Amendment. It's not perfect. It's just a really good balance.
Actually you can restore title to land to the previous holder through a variety of legal theories and you can provide restitution (or even some equitable relief like forcing the developer to rebuild the property as it was) to the owner.
Basically the only thing I disagree with you about is the meaning of "public use." The problem is that "reading it literally" can produce at least 3 definitions, and where there are 3, why might there not be 4? Essentially you're talking about setting the *boundary* of "privatization" allowed for state action to be considered public as much as the amount of benefit by persons who cannot use the property but who nonetheless derive positive benefit from the foreclosing of the rights of others (call it a power theory and a utilitarian theory). Personally, if I read "public use" literally, I would tend to go *only* with your first definition above, and not the other two.
On the police power thing, I could make an argument that "nuisance laws" (and even 42 USC 1983 and similar) are, under a literal reading of the Constitution, unconstitutional attempts to legislate around the vast constitutional power given to states. So while I agree with the police power derivation of the nuisance actions, it's conceptually more useful to look at both police power and eminent domain as representing the powerful policy tools available to the state, even with the protections provided by the Bill of Rights and the Constitution.
Well, no, imho the Bill of Rights is mainly about limits on sovereign power, not specifying limits on personal rights, so on that point, I reckon we'd agree.
But, as a thought exercise, let's say say the Fifth Amendment prohibits takings not for a "public use." What's the definition of public use? We don't know. But later in the Bill of Rights, all powers not specifically enumerated therein are reserved to the states and the people, which, to me, suggests some deference to state definitions of "public use" and, of course, to the right of citizens to vote for their own concept of "public use."
The point of my previous post, though, was that we do live in an imperfect system that reflects a lot of baggage of 18th Century England. If we really want to change that, a single Supreme Court decision won't be very effective. Real change would have to come from changing the way property is titled or making political lobbying by organizations a criminal act or some such thing.
And, to repeat myself (sorry, but I just want to be clear), I'm not happy with the decision, because I have a pretty good idea in my head that if I pay $500,000 for a house, I should damn well be able to keep it. But that's, legally speaking, simply not the way the American property-rights structure is built.
Ok, that's certainly a good point, and if this were DailyKOS or Redstate, I'd give you a 4. And it makes my point even better.
I can make a legal argument that there's never been an absolute right to property in this country. Ever. We inherited a conception of real property from England that insisted that title for property originated in the Sovereign. We are, in a sense, vassals on the land of the state, exercising ownership at the sovereign's whim. The existence of the Fifth Amendment is an express recognition of that property system and an attempt (a rather liberal one, actually, for the times) to moderate the harsh effects of eminent domain.
Now, is that the way it SHOULD be? No, of course not, and I'd happily vote for an Amendment that vested absolute right to property in the property owner with some limited eminent domain leftover for public utilities, transportation, and other services owned by the government and paid for by tax revenues.
But the Supreme Court's job is mainly to interpret and clarify, and I can't say the majority was clearly wrong.
But don't you think the rich and powerful would find a way to screw the poor one way or another anyway? I dunno, I really don't agree with the actions that led to the case, but I didn't see any winning arguments from the dissent, at least nothing good enough to strip (or permanently limit) a valuable and inherent state power rather than trusting the political process to deal with it in most cases.
And, fwiw, there's never been anything remotely like an absolute right to private property in this country. But if we want to grant one or at least expressly define "public use", I'm happy to vote for an Amendment to accomplish that.
Why should Congress limit eminent domain if we can vote for the people who exercise it? The way I see it, if these town council folks don't get booted out in the next election, that's a referendum on their use of state power.