Then the problem is not that the laws have changed (they haven't) but rather that the quality of examinations has (which is absolutely the case). The problem is that the government has no incentive to improve the quality of patents and therefore has neglected the Patent Office fiancially. This, coupled with the sudden explosion of filings in areas where experienced examiners are hard to find, has put us on the disaster course we are now.
As a patent lawyer, I have absolutely no idea what you mean by:
Before the 80s patents were rejected on the sole grounds that while the applicant may have been the first to develop the technique, anybody researching such a product would have done the same thing. We need to get back to that interpretation.
You are referring to the non-obviousness reqiurement which is alive and kicking. By far, the overwhelming majority of rejections I see on patent applications are on the basis of obviouness. What "history" are you talking about which has done away with the requirement that an invention be non-obvious in order to be patentable?
BTW, I thought the article was excellent and agree with many points made by the author
That is an optimistic view of the situation. However, the inventor here, Jerry Lemelson, was well known for submarine patenting, a practice that even the most ardent supporters of the patent system (I being one) admit is an abuse of the patent laws in effect when all this happened.
You are correct, this was a standard practice. It is now forbidden by the patent laws. There is a reason for that (it was deemed to be abusive). In addition, most recently courts have refused to enforce these patents under the legal theory of prosecution latches.
Do YOU ever read? The patents issued at the end of along chain if continuation applications filed in the 1957 and 1964. So the article is correct. Sometines you have to read more than the abstract... oops, I forgot this is slashdot!
While on the subject, here is my favorite stupid patent: http://patft.uspto.gov/netacgi/nph-Parser ?Sect1=PT O1&Sect2=HITOFF&d=PALL&p=1&u=/netahtml/srchnum.htm &r=1&f=G&l=50&s1=6,080,436.WKU.&OS=PN/6,080,436&RS =PN/6,080,436
That's right, they patented toast, really hot toast!
I haven't read the article (my bad!) but a U.S. patent gives you the right to sue importers of infringing goods. I assume the two Taiwanese companies were importing their "infringing" chips into the U.S.
Backdated is not really a good word for it. Patents filed from 1995 forward have a life of 20 years from the date of filing (not issue). This patent was filed before 1995 and therefore it has a life of 17 years from the date of issue.
Well, that is what we do here at/. Just because something is legal doesn't make it right.
In fact, the practices of the inventor in question, among others, of keeping patents pending forever (called "submarine patenting") led to changes in US patent law making it no longer worthwhile to do so.
So this troublesome "challenging" which you are critizising led to improvements in the law that closed a loophole for abusers of the patent system.
You can't do this anymore. Patents filed after 1995 run for 20 years from the date of FILING. There fore, the longer a patent is pending, the shorter its effective term. This practice, called "submarine patenting" was, in part, the reason. By the way, the inventor of thios patent, Jerry Lemelson, was famous for doing this (he is now dead)
Actually, you cannot "copyright a specific formula or algorithm." Copyrights protect the expression of an idea, not the idea iself. For this reason, the law eliminates copyright protection when there is only one way to express an idea (this is called the "doctrine of mergers" as in where the idea merges with the expression). Otherwise, by copyrighting the expression, the author would get exclusive rights to the idea.
An algorithm or formula is a prefect example of an idea which can be expressed in only one way. Therefore, that form of expression cannot be copyrighted.
The "legalese" states that the license "may be suspended with respect to any licensee when licensor is sued by licensee for infringement of claims essential to implement any W3C Recommendation."
Therefore, although the lawsuit does not have to be related to the particular W3C standard that is subject to the license, it must be related to a patent governing a W3C standard.
I think you have mis-read (or not-read) the press release. This is not about the W3C patenting anything. This is about members of the W3C waiving any patent rights they have to inventions which are incorporated into standards while they are members and participate in the creation of the standard.
However, the most important effect will be that members will have to "put up or shut up." From this standpoint this is a good step. A member who knows that a standard it is contributing to will incorporate subject matter (i.e., claims) from one of its patents or pending patent applications will have to "speak up or forever hold its peace."
If the member speaks up, it can exclude the subject patents or claims from the waiver policy. This, in turn, gives notice to the W3C that it should steer the standard in a different direction if it wishes to end up with a royalty-free standard. If the member does not speak up, it is implicitly waiving its patent rights an cannot sue for infringement in the future.
"For the cable company, each additional user would mean squeezing another stream of video content through its cables."
No kidding! This is more of the same dribble they (cable operators and big media) have been promissing without any chance of delivering. The fundamental problem with Cable-On-Demand is that the cable infrastructure does not have nearly enough bandwidth of processing horsepower to serve out 5,000 simultaneous feds of LOTR (or what have you) on the day it is released. The concept wotks great in limited tests since the scale is relativelly miniscule. But try to extrapolate it and it just won't work.
In the meantime, TIVO and Replay TV are approaching 1,000,000 users who have been watching TV on their own terms for several years. TIVO killer? I don't think so. Sounds more like vaporware from a company desperate to salvage some semblance of relevancy.
This is disturbing, to say the least. You should seriously consider forwarding a copy of your narrative to the lawyer suing Intuit. I have no doubt this will be most useful to him in proving that the installer probably does its dirty work (i.e. setting up C-Dilla) before you are even shown a EULA.
Uhm... you CANNOT file a lawsuit without plaintiffs! Duh! Where did you read there are no plaintiffs? The article simply says that other plaintiffs cannot join in because the lawsuit has not been certified as a class action. There, most definitely are plaintiffs. The only kind of legal action which does not require a plaintiff is a criminal case (and even there we, the citizens, are the plaintiff).
As for your complaint about our legal system because it encourages a lawyer to file a lawsuit by rewarding them with profits... I guess you must also be against capitalism. The only way this type of action can be brought is if there is a possibility of large profits for the lawyers. Do you think anyone is going to take on Intuit, MS and the like, spend a ton of money doing it and in the end only get the $39.99 paid for the product if they win? I don't think so.
Our legal system is far from perfect and lends itself to abuse. But it also keeps businesses on their toes with the threat that if they abuse consumenrs, some lawyer is lurking around to make them pay. This terrible system does not seem to have kept us from having, by far, the strongest economy in the world. Perhaps you would prefer, like most other countries in the world, to leave it up to the government to enforce dconsummer protection laws. Good luck with that.
No need to look into it. The statement made by Hairy 1 is 100% the opposite from the law. I should know, I am an intellectual property lawyer. When you have no written agreement to the contrary, copyrights belong to the work's author. No gray areas here.
Maybe the poster was referring to a different country or planet. Only in that case would his erroneous pronouncements could be considered "insightful"
Actually, the $75,000 mentioned in the article was for 5 plaintiffs, $15,000 each. That number, by the way, is prolly purely alleged for jurisdictional purposes (i.e., in order to get into a certain "court" you must allege damages within a particular range).
My guess (IAAL but not in CA) is that if you allege damages of more than $5,000 but less than $15,000, you are in county court. The other alternatives are small claims court ($5,000) or circuit court ($15,000), or whatever they call those courts in CA. My numbers come from what the jurisdictional limits are in FL. The different courts have different sets of rules.
What is most important is that they have alleged a maximum amount of damages (at least that is what the article makes it sound like) which means that the court does not have the power to award anything above that, even as punitive damages. Therefore, IMHO, regardless the merit these cases are small potatoes. If successfull, however, they could form the basis for a much wider class action lawsuit,
Tough case. You would have to prove that the attorney comitted fraud on the patent office by failing to diclose invalidating prior art that the attorney had actual knowledge of.
As an inventor you are never required to conduct a search for prior art, but if you do, you are required to disclose to the patent office anything that you find and consider relevant. My guess is that the lawyer did not do a search and relied on the inventor for the representation that there was no invalidating prior art. Perfectly legal and ethical.
Many people have said that this problem would be eliminated if inventors were required to do a prior art search and submit the results with the patent application. This would, however, increase the price for preparing an application. IMHO,it is a fair price to pay to restore integrity to the system.
The cases you cite are challenges to the constitutionality of particular laws. In Eldred and ACLU, the plaintiff is not alleging that the individual named (or the government for that matter) did not follow the law. Rather, they allege that the law is incompatible with the Constitution.
That is not at all what the original question was all about. Asking for a statute to be declared uncostitutional is not "suing the government." Clearly, the guy/gal I responded to was not questioning the validity of the laws which dictate what is patentable. He was asking if you could sue the giovernment agency for improperly (in his view) carrying out a discretionary function provided under the law (i.e., a determination of patentability).
If there is some kind of magical exception to the sovereign immunity doctrine you know of, I would love to hear it.
Slashdot Mirror
Then the problem is not that the laws have changed (they haven't) but rather that the quality of examinations has (which is absolutely the case). The problem is that the government has no incentive to improve the quality of patents and therefore has neglected the Patent Office fiancially. This, coupled with the sudden explosion of filings in areas where experienced examiners are hard to find, has put us on the disaster course we are now.
There are lots of patents concerning legal procedures. Your point is not borne by the facts.
/.
But, of course, "blame the lawyers" is always a popular position so you are sure to be modded up (Insightful). I love
As a patent lawyer, I have absolutely no idea what you mean by:
Before the 80s patents were rejected on the sole grounds that while the applicant may have been the first to develop the technique, anybody researching such a product would have done the same thing. We need to get back to that interpretation.
You are referring to the non-obviousness reqiurement which is alive and kicking. By far, the overwhelming majority of rejections I see on patent applications are on the basis of obviouness. What "history" are you talking about which has done away with the requirement that an invention be non-obvious in order to be patentable?
BTW, I thought the article was excellent and agree with many points made by the author
That is an optimistic view of the situation. However, the inventor here, Jerry Lemelson, was well known for submarine patenting, a practice that even the most ardent supporters of the patent system (I being one) admit is an abuse of the patent laws in effect when all this happened.
You are correct, this was a standard practice. It is now forbidden by the patent laws. There is a reason for that (it was deemed to be abusive). In addition, most recently courts have refused to enforce these patents under the legal theory of prosecution latches.
Do YOU ever read? The patents issued at the end of along chain if continuation applications filed in the 1957 and 1964. So the article is correct. Sometines you have to read more than the abstract ... oops, I forgot this is slashdot!
Oops!. Here is the link for the patent for toast
While on the subject, here is my favorite stupid patent:r ?Sect1=PT O1&Sect2=HITOFF&d=PALL&p=1&u=/netahtml/srchnum.htm &r=1&f=G&l=50&s1=6,080,436.WKU.&OS=PN/6,080,436&RS =PN/6,080,436
http://patft.uspto.gov/netacgi/nph-Parse
That's right, they patented toast, really hot toast!
I haven't read the article (my bad!) but a U.S. patent gives you the right to sue importers of infringing goods. I assume the two Taiwanese companies were importing their "infringing" chips into the U.S.
Backdated is not really a good word for it. Patents filed from 1995 forward have a life of 20 years from the date of filing (not issue). This patent was filed before 1995 and therefore it has a life of 17 years from the date of issue.
Well, that is what we do here at /. Just because something is legal doesn't make it right.
In fact, the practices of the inventor in question, among others, of keeping patents pending forever (called "submarine patenting") led to changes in US patent law making it no longer worthwhile to do so.
So this troublesome "challenging" which you are critizising led to improvements in the law that closed a loophole for abusers of the patent system.
You can't do this anymore. Patents filed after 1995 run for 20 years from the date of FILING. There fore, the longer a patent is pending, the shorter its effective term. This practice, called "submarine patenting" was, in part, the reason. By the way, the inventor of thios patent, Jerry Lemelson, was famous for doing this (he is now dead)
There is such a place. The United States Patent and Trademark Office. The filing is called a Statutory Invention Registration ("SIR")
Hold patemts like what? RTFA! I can't believe comments like this get modded up.
Actually, you cannot "copyright a specific formula or algorithm." Copyrights protect the expression of an idea, not the idea iself. For this reason, the law eliminates copyright protection when there is only one way to express an idea (this is called the "doctrine of mergers" as in where the idea merges with the expression). Otherwise, by copyrighting the expression, the author would get exclusive rights to the idea.
An algorithm or formula is a prefect example of an idea which can be expressed in only one way. Therefore, that form of expression cannot be copyrighted.
Yes, the use of the word "claims" (and specifically essential claims) pretty much forecloses anything but patent lawsuits from that provision.
The "legalese" states that the license "may be suspended with respect to any licensee when licensor is sued by licensee for infringement of claims essential to implement any W3C Recommendation."
Therefore, although the lawsuit does not have to be related to the particular W3C standard that is subject to the license, it must be related to a patent governing a W3C standard.
I think you have mis-read (or not-read) the press release. This is not about the W3C patenting anything. This is about members of the W3C waiving any patent rights they have to inventions which are incorporated into standards while they are members and participate in the creation of the standard.
However, the most important effect will be that members will have to "put up or shut up." From this standpoint this is a good step. A member who knows that a standard it is contributing to will incorporate subject matter (i.e., claims) from one of its patents or pending patent applications will have to "speak up or forever hold its peace."
If the member speaks up, it can exclude the subject patents or claims from the waiver policy. This, in turn, gives notice to the W3C that it should steer the standard in a different direction if it wishes to end up with a royalty-free standard. If the member does not speak up, it is implicitly waiving its patent rights an cannot sue for infringement in the future.
Burried in the article is this little gem:
"For the cable company, each additional user would mean squeezing another stream of video content through its cables."
No kidding! This is more of the same dribble they (cable operators and big media) have been promissing without any chance of delivering. The fundamental problem with Cable-On-Demand is that the cable infrastructure does not have nearly enough bandwidth of processing horsepower to serve out 5,000 simultaneous feds of LOTR (or what have you) on the day it is released. The concept wotks great in limited tests since the scale is relativelly miniscule. But try to extrapolate it and it just won't work.
In the meantime, TIVO and Replay TV are approaching 1,000,000 users who have been watching TV on their own terms for several years. TIVO killer? I don't think so. Sounds more like vaporware from a company desperate to salvage some semblance of relevancy.
This is disturbing, to say the least. You should seriously consider forwarding a copy of your narrative to the lawyer suing Intuit. I have no doubt this will be most useful to him in proving that the installer probably does its dirty work (i.e. setting up C-Dilla) before you are even shown a EULA.
Uhm ... you CANNOT file a lawsuit without plaintiffs! Duh! Where did you read there are no plaintiffs? The article simply says that other plaintiffs cannot join in because the lawsuit has not been certified as a class action. There, most definitely are plaintiffs. The only kind of legal action which does not require a plaintiff is a criminal case (and even there we, the citizens, are the plaintiff).
... I guess you must also be against capitalism. The only way this type of action can be brought is if there is a possibility of large profits for the lawyers. Do you think anyone is going to take on Intuit, MS and the like, spend a ton of money doing it and in the end only get the $39.99 paid for the product if they win? I don't think so.
As for your complaint about our legal system because it encourages a lawyer to file a lawsuit by rewarding them with profits
Our legal system is far from perfect and lends itself to abuse. But it also keeps businesses on their toes with the threat that if they abuse consumenrs, some lawyer is lurking around to make them pay. This terrible system does not seem to have kept us from having, by far, the strongest economy in the world. Perhaps you would prefer, like most other countries in the world, to leave it up to the government to enforce dconsummer protection laws. Good luck with that.
Soysauce wants to be free!!!
No need to look into it. The statement made by Hairy 1 is 100% the opposite from the law. I should know, I am an intellectual property lawyer. When you have no written agreement to the contrary, copyrights belong to the work's author. No gray areas here.
Maybe the poster was referring to a different country or planet. Only in that case would his erroneous pronouncements could be considered "insightful"
Actually, the $75,000 mentioned in the article was for 5 plaintiffs, $15,000 each. That number, by the way, is prolly purely alleged for jurisdictional purposes (i.e., in order to get into a certain "court" you must allege damages within a particular range).
My guess (IAAL but not in CA) is that if you allege damages of more than $5,000 but less than $15,000, you are in county court. The other alternatives are small claims court ($5,000) or circuit court ($15,000), or whatever they call those courts in CA. My numbers come from what the jurisdictional limits are in FL. The different courts have different sets of rules.
What is most important is that they have alleged a maximum amount of damages (at least that is what the article makes it sound like) which means that the court does not have the power to award anything above that, even as punitive damages. Therefore, IMHO, regardless the merit these cases are small potatoes. If successfull, however, they could form the basis for a much wider class action lawsuit,
As an inventor you are never required to conduct a search for prior art, but if you do, you are required to disclose to the patent office anything that you find and consider relevant. My guess is that the lawyer did not do a search and relied on the inventor for the representation that there was no invalidating prior art. Perfectly legal and ethical.
Many people have said that this problem would be eliminated if inventors were required to do a prior art search and submit the results with the patent application. This would, however, increase the price for preparing an application. IMHO,it is a fair price to pay to restore integrity to the system.
That is not at all what the original question was all about. Asking for a statute to be declared uncostitutional is not "suing the government." Clearly, the guy/gal I responded to was not questioning the validity of the laws which dictate what is patentable. He was asking if you could sue the giovernment agency for improperly (in his view) carrying out a discretionary function provided under the law (i.e., a determination of patentability).
If there is some kind of magical exception to the sovereign immunity doctrine you know of, I would love to hear it.