... which i'd suggest counts as both obvious *and* prior art.
Respectfully, and without necessarily disagreeing with your fundamental point, those terms don't mean what you think they do, legally.
"Prior art" is "anything in the relevant art, that's prior." The Wright Brother's plane is prior art for the Space Shuttle. The Model T is prior art for the Tesla Model S. That doesn't mean they're anticipatory prior art, which is art that teaches everything in a patent claim. So, for example, even though the Model T is prior art for the Model S, it wouldn't invalidate a patent on the battery pack, for example. Similarly, sliding deadbolts are prior art for the virtual slide-to-unlock, but they alone don't show everything in the patent.
"Obvious" is a legal conclusion, like "guilty". It's different than just the "duh" gut feeling that we typically mean when we call something obvious. And just as you show someone is guilty by showing that they committed each and every element of a crime, you show that something is obvious by showing that one or more pieces of prior art exist that, alone or in combination, teach each and every element of the patent claim. So, again, sliding deadbolts show unlocking something... but they alone don't show all the other bits of the claim, like a handheld electronic device. That means you'd have to at least combine "deadbolts" plus "mid-90s Palm smartphone" to show that element.
Using the right terms - anticipatory prior art when you mean that, or obvious when you have a combination of prior art references to invalidate a claim - will increase your credibility with people who are in power to make changes to the patent system.
1. A method of unlocking a hand-held electronic device, the device including a touch-sensitive display, the method comprising: detecting a contact with the touch-sensitive display at a first predefined location corresponding to an unlock image; continuously moving the unlock image on the touch-sensitive display in accordance with movement of the contact while continuous contact with the touch screen is maintained, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device; and unlocking the hand-held electronic device if the moving the unlock image on the touch-sensitive display results in movement of the unlock image from the first predefined location to a predefined unlock region on the touch-sensitive display.
To show a patent claim is not new, you have to show that a single piece of prior art shows everything in the patent claim. This piece of prior art wouldn't do that, since it doesn't show a hand-held electronic device, doesn't really show "continuous" movement as opposed to switching between several icons, and it doesn't show unlocking a device. But that's just one of the requirements for validity - 35 USC 102. Incidentally, this type of prior art is called "anticipatory prior art," because it anticipates everything in the patent. It's what laymen usually mean when they say "there's prior art for X patent!" That statement doesn't mean anything, because there's always prior art for something - Neanderthal Ug's wheel is prior art for all-terrain run-flat tires. Just not anticipatory prior art.
Another requirement is non-obviousness - 35 USC 103. Under this requirement, you can show that a patent claim is obvious by showing that a combination of prior art references together teach each and every element in the claim and that they could be reasonably combined. So, if the Claim is A+B+C+D and one reference shows A+B and another shows C+D and they could be combined, that shows that the Claim is obvious.
So, for example, if you can find other references that show a hand-held device, continuous movement of an image, and unlocking a device, those combined with this may be enough to show that the Claim is obvious. That should be pretty easy to find.
One caveat there is that if a reference teaches away from the combination, it may not be available to use in the rejection. So, if the C+D reference says "never combine me with A+B, because bad things happen", then it may not be obvious to combine it with A+B (there may also be an unrecognized E element that makes it work with C+D). Here, the usability study at the end of the video seems to argue away from using sliders as touch-screen switches. But that may not be a strong enough disparagement of their use, nor does it necessarily argue away from its combination with an unlocking system.
Disclaimer: I am a patent attorney, but I am not your patent attorney. The above is not legal advice and is merely for (my own) amusement purposes. I have not spent any serious time looking into this patent, the specification, or any of the dependent Claims.
There is no default implicit agreement to not share the video, no matter how much you want there to be. You have to be proactive and state it, in writing or orally . The default state of copyright law is that if you give me consent to record you, i can share it. It is upon you to prove a further contract between us exists, disallowing sharing.
You: "But copyright law!"
Me: "There's more at issue here than just copyright law."
You: "... but, but, but copyright law!"
Me: "It's not just copyright. There are privacy rights, defamation rights, and not to mention just plain contract rights."
You: "... copyriiiiiiiight!"
If you consent to let someone film you (absent an agreement), you are by law giving them consent to do with it as they please. That is copyright 101. That wont be changing anytime soon.
First, that's copyright law. We're not talking about copyright, but rather all sorts of other rights, which you haven't given up by consent to being filmed. If you consent to letting someone film you, are you giving them consent to beat you about the head and shoulders with the camera? Are you giving them consent to sodomize you with the tape? Nope. All you are consenting to is being filmed. Period.
Second, even focusing just on the copyright issue, your argument defeats itself in the first 11 words. "If you consent... absent an agreement"? In other words "if you agree, but without an agreement"? Did you miss the contradiction there? Of course you have an agreement - that's what consent is: you agree to let someone film you. If you didn't have any agreement, they wouldn't have your consent and it would be invasion of privacy. And so yes, there is an agreement... Then the question is simply what the scope of that agreement is - record and view privately? Record and publicly distribute? Record and beat you with the camera? Of course not to the latter, as I'm sure you agreed in my prior point.
No, consent to one thing does not imply consent to any other thing. That's simply not the way agreements work, legally or morally.
Im not discouraging anyone from making sex tapes, only educating them on the ramifications of if they do. Get an agreement, verbal or oral, and preferably use NON internet connected devices to do so to retain control of your image.
As noted above, there is an agreement in play. And you were saying that, regardless of such an agreement, "Don't want to have a sex tape leaked? Don't agree to be filmed." You're defending people who breach agreements, attacking the victim, and yes, discouraging people from making sex tapes.
"This is a no-brainer. Revenge porn is an abuse of trust."
This is a MASSIVE assumption. If you allow someone to record you in intimate acts, you have no one to blame but yourself. Free Speech trumps hurt feelings for 'lapses of morality'. Dont want to have a sex tape leaked? dont agree to be filmed.
First, that's entirely wrong. Your argument is premised on the concept that if you consent to one thing - e.g. making a sex tape - you consent to everything that can possibly be done with it. That's not true. Consent can be as narrow or broad as the consenting person wants. If you let me borrow your car, you're not necessarily consenting to let me rent out your car to my friends for use in a demolition derby. Consent to one thing is not consent to everything.
Second, your argument is an attempt to discourage people from making sex tapes. What are you, asexual? And if so, then why is this an issue you're concerned about? Shouldn't you be off not-masturbating somewhere? The rest of us would prefer that people make sex tapes, happily and in full confidence that their privacy will not be abused and their narrow consent to make a sex tape and share it with one or two people will not be broadened by some douchebag into consent to have it broadcast online.
And here I am with my tail between my legs. Don't bother wasting your time replying to point out my own misunderstanding of the law; I've just made myself quite aware of this (ironically, as I no longer hold that misunderstanding).
Uh... Libel is a subset of defamation. That's like saying "you're confusing tuna with fish".
can defame someone's character by making public some private piece of information about them, which is 100% completely factually accurate, which the general population of people who know that person would find to be out of character for them.
Yes, that's why my post specifically referred to both false light and invasion of privacy. In fact, I even called it "'false light' defamation".
... you didn't actually read the post you're replying to, did you?
That is to say, unless you're such a slut or manwhore that your own friends will attest to that fact under oath, you have a pretty solid case for defamation of character when someone posts porn of you without your consent.
Except that the easiest defense to defamation complaint is to show that the alleged libel is true. Is the plaintiff actually in the pictures? Yes. Are they modified in any way? Nope. The act depicted actually occurred? Yes. Therefore, no defamation.
The closest you would get would be either "false light" defamation, if there's a false implication that the person does this for money, or just standard invasion of privacy. But both of those are significantly less bullet-proof than you were claiming.
Interesting. Seriously - thanks for the reply and link. For reasons I can't quite fathom, I find IP law fascinating - though it's only tangentially related to my work (engineer).
No problem. I quite enjoy it - I was an engineer for 10 years, then shifted into patent law. It's a lot of fun, and really, it's just more engineering. Mind you, I don't do litigation, just working with inventors and the patent office.
Really? (and I say that as a genuine question, not some snarky reply)
I always thought you could "make your own" from patent filings, you just couldn't sell/trade/traffic/commercialize it. So if I wanted to construct a swing in my backyard and use it in a sideways motion (with or without the Tarzan yell), such as currently under patent http://patft.uspto.gov/netacgi... , I could do so without fear of repercussion, but I could not sell such a swing setup to others without violating the rights of the patent owner. Your definition of "use" would prevent such a project in my back yard.
Yes, you are incorrect there. The statute is 35 USC 271 and states:
Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
Note that there's no commercial requirement - this is unlike trademark law, where infringement has to include commercial use, because federal trademark law comes out of the commerce clause, while patents are under Article 1, section 8, clause 8. Merely using a patented invention is infringement, even if it's for completely non-commercial gain. In fact, this why there was the whole big controversy over the BRCA1 gene in Assoc. for Molecular Pathology v. Myriad Genetics: one of the concerns was that if Myriad could patent an isolated gene, then scientists couldn't use that isolated gene even in their non-profit research on cancer cures.
Two things, though: first, that swinging on a swing patent has been invalidated.;)
Second, for the most part, if you're making something for personal use in your home, the patent owner may never find out about it, so while you may be infringing, you're unlikely to get sued. Even if you do, the reasonable royalty for private, personal home use may be negligible. Let's pretend that the swinging patent was still valid and you did it... What's a reasonable royalty? A nickel? Maybe an entire quarter? It's going to cost someone at least $50k to file suit for infringement, and even if by some incredible odds you were found to willfully infringe and be held liable for their attorney fees, they'd still lose money, just due to inflation and lost investment opportunity. Plus, a judge would probably refuse the attorney's fees, because someone who sues over twenty-five cents is someone who is wasting the court's time, so why should they end up anywhere close to whole?
I don't buy the auto analogy, mainly because the insurance companies have nothing to do with the suit, except though my contract with them for payment of an award. The only reason their lawyers get involved is because it's their money.
But they have no right to interfere in the suit, even if it's their money, unless they can be made a party. That's what FRCP rule 14 is all about. As a result, they do have something to do with the suit, albeit indirectly to the main controversy. Civil procedure is weird that way.
I have a buffalo wireless router I purchased many years ago, and if the courts interpret "use" as you say, then I am in direct violation of several patents (since Buffalo, afaik, never paid for the patents they used)
Yes, quite possibly. It would depend on the claims at issue, of course.
Specifically, some claims are written from an active client perspective - "receiving, by a router, a wireless communication; processing, by the router, the communication to do something really awesome; etc." Buffalo may make routers, but do they infringe such a claim?
Apple, Microsoft, Dell, BlackBerry, Nokia, etc. don't make LED's, they buy them . Hence they're customers. Does this mean that the absurd idea of suing customers in addition to manufacturers has been accepted? Patent trolling is bad, but this is just plain nuts.
Patents give the owner an exclusive right to make, sell, import, or use an invention. While customers aren't making, selling, or (sometimes) importing the product, they are using it.
Now, that said, various exhaustion and indemnification rights may exist. In fact, frequently what happens is the patent owner sues a customer, the customer brings in the manufacturer as a third party defendant under rule 14, and then the customer walks away and the manufacturer and patent owner hash things out. Same thing occurs when there's a car accident - I sue you, you bring in your insurance company, and then I and your insurance company figure it out. I can't sue them directly, because I have no privity of contract with them or grounds for suit against them.
This isn't anything to do with trolling - this is just a standard thing for when A has a cause of action against B, and B has a defense by way of C.
I'm not one to normally jump on the paid shill conspiracy theory, as I think there are plenty of fanboys out their to make crazy biased statements, but your's is something like the 4th or 5th post I have seen that makes that exact same claim. Literally stating that the only Apple product shown is someone working on a Macbook, and that there are is no iPhone being shown. This is obviously patently (get it???) false. See 3:02 in the video, where they are discussing what is patentable and they show a full screen shot of the iPhone specifically.
I am going to have to believe that Apple does in fact have people posting on Slashdot today.
No, I concede the point - it's a 15 minute video and I skimmed through, saw the Macbook, and said, "wait, that's what they're complaining about?" Once someone pointed out the bit at 3:02, I agree that it's a lot more suspicious - or at the least, a terrible idea and certainly gives the impression of bias.
I pretty sure that you need to describe how you separate the cotton fibers. If someone can figure out a new way to do it, they can make their own machine without infringing you patents. They could even patent their own method.
Yes and no... I have to describe one method of separating the fibers to meet the requirements of 35 USC 112, but I can claim the general process of separating them, if I'm the first person to do so and it wasn't obvious (and before you object that of course, it's obvious, I agree - but we're talking about whether a process should be rejected as not directed to patent eligible subject matter, regardless of whether it's new or nonobvious, but simply because it's really broad).
Now, yes, you can patent your own specific method for separating fibers as an improvement on my general invention. But you can't practice it without infringing my patent. My patent is what's referred to as a "blocking" patent. Of course, I can't practice your method without infringing your patent. This is a good thing, though, as it leads to us both cross-licensing each other's patents.
That is the basic problem we have with how software patents work in the real world. They describe the idea, not the actual implementation. So anyone else who does rubber banding in the UI will infringe no matter how they implement it.
And, like I said, if no one had ever done rubber banding before and it wasn't obvious to do so, then why is that an issue? If you invent a new revolutionary field of technology (not that I'm claiming rubber banding qualifies, but stick with me), why shouldn't you get a patent covering the entire field, generally? Why should you be limited to just one part of it, if you invented the entire thing and it wasn't obvious?
I think the real issue here is that we intuitively feel that rubber banding is a stupid and obvious UI element and we would love to find prior art to invalidate the patent... but that takes effort and time, and it's much easier to simply say "UI interfaces aren't patentable". But that's not how the law should work, any more than we should just be able to say "that guy looks guilty, so let's not bother with a trial and evidence, because that takes time and effort."
Do you realise a keyboard and a mobile phone are different products, again , I repeat you have no concept of trade marks beyond I own everything greed. They are strictly limited.
First, this is actually trade dress, not trade marks. Similar, and still falls under Lanham 43, but if you're throwing around the "you have no concept of what we're talking about" stone, you might want to make sure it's the correct stone. Otherwise, you're liable to hit one of your glass walls, y'know.
Second, trademark registrations under Lanham 32 are "strictly limited" to fields. For example, here is the registration record for Blackberry. And here's the fields it's "strictly limited" to:
IC 009. US 021 023 026 036 038. G & S: Apparatus for recording, transmission, processing or reproduction of data, sound or images, namely, electronic handheld units, mobile phones, telephones, smartphones, personal digital assistants (PDAs) for the wireless transmission of data and/or voice signals; data processing equipment, namely, printers, scanners, cameras and computers for use with electronic handheld devices; computers; mobile computing and communication devices, namely, mobile phones, smartphones, personal digital assistants (PDAs), tablet phones, tablet computers, mobile computers, and mobile apparatus for recording, transmission, processing or reproduction of data, sound or images; computer communication software for the synchronization, transmission and sharing of data, calendar, content and messaging between one and more electronic handheld devices and data stored on or associated with a computer; computer software and programs in the field of music, movies, animation, electronic books, digital maps in the fields of general entertainment and communications; computer software for navigation; the aforementioned for computing and communication devices in the nature of apparatus for recording, transmission, processing or reproduction of data, sound or images, data processing equipment, and computers, and mobile computing and communication devices in the nature of mobile phones, smartphones, personal digital assistants (PDAs), tablet phones, tablet computers, mobile computers, and mobile apparatus for recording, transmission, processing or reproduction of data, sound or images. embedded computer software for the synchronization, transmission and sharing of data, calendar, content and messaging between one and more electronic handheld devices and data stored on or associated with a computer, the aforementioned software used as a feature found on the foregoing computing and communication devices and mobile computing and communication devices; embedded computer software for GPS navigation used as a feature found on the foregoing computing and communication devices and mobile computing and communication devices; downloadable software for the synchronization, transmission and sharing of data, calendar, content and messaging between one and more electronic handheld devices and data stored on or associated with a computer, the aforementioned software for the foregoing computing and communication devices and mobile computing and communication devices; mobile application software for the synchronization, transmission and sharing of data, calendar, content and messaging between one and more electronic handheld devices and data stored on or associated with a computer, the aforementioned software for the foregoing computing and communication devices and mobile computing and communication devices; downloadable entertainment content, namely, music, movies, animation, electronic books, digital maps in the field of general entertainment and communications; downloadable entertainment content in the nature of games, and music; downloadable video recordings; operating system software for the foregoing computing and communication devices and mobile computing and communication devices; enterprise software, the afo
But "obviousness" is too fuzzy a concept... One way to measure "obvious" is a panel of experts. But what if none of the "experts" know about the new "kits" on the block such as solid-state electronics or web standards?
In practice, it's not that fuzzy: the current test for obviousness used by the courts and the patent office relies on the existence of prior art to avoid hindsight. It also avoids the problem of having a panel of "experts" that you have to keep sequestered... and therefore who would fall behind the state of the art and would shortly not be experts anymore. Specifically, the test is whether one or more pieces of prior art, alone or in combination, teach or suggest each and every element of the claimed invention. In other words, if the patent claims a process with steps A+B+C+D+E, and one piece of art does A+B+C and another does D+E and you could combine them without it exploding, then the patent is per se obvious.
So, for example, in the 60s, mechanical intermittent wipers existed; solid state timer circuits existed; therefore, it would be obvious to make a solid state timer-driven intermittent wiper... at least, if that's all the patent claimed. If you started adding more and more details until the claim recites a step or part F that wasn't in the prior art, then it wouldn't necessarily be obvious anymore... but it also wouldn't cover every possible implementation of solid state-driven intermittent wipers, which is the proper result.
The law they wrote made it easier for business method patents to be thrown out and challenged in court. They had the oppurtunity to overule SCOTUS and get rid of Bilski. Instead they made it easier for Bilski to used. That kinda implies the opposite.
No, it implies that they intended for business methods patents to exist generally, but that low quality ones should be invalidated. Certainly, it makes no sense to have a process for challenging them if you were just going to wipe them all out with a single amendment. It'd be like Congress writing a procedure for you to protest how your neighbor is storing their nuclear weapons: adding such a procedure makes no sense since they aren't allowed to have them, period.
That's still massively vague and far-reaching. They should be able to patent the specific heuristics themselves. They should not be able to patent the idea of using heuristics to figure out what to do.
Its like patenting the cotton gin as follows:
11. A mechanically-implemented method, comprising:
one or more lengths of iron or other metal commonly used in the field of production to separate the fibers of the cotton from their seeds;
applying motion to various parts of the machine to determine which portions of the cotton are fibers;
inputting energy into the system in order to achieve separation of fibers;
a grading to determine when sufficient fibers have been separated; and
a mechanism for disposing of the seeds and resetting the device.
Without specifics, they're still describing the idea of a rubber-band display. You could build one using all of your own formulae for behavior and appearance, and you'd still be in violation of their patent.
And, if you were the first person to ever separate cotton fibers or create intuitive user interfaces, wouldn't that be reasonable? Isn't the bigger issue here the fact that it may be not new or obvious to do, rather than just that it's an idea?
It is their job to settle disputes between the federal circuit judges. With this case went before 10 judges their was 7 different opinions. No majority opinion. They could not find 6 judges who could agree what the law was. No one has any clue what Congress meant by process. So they sort of don't have a choice but to interpret the statute.
Sure, they have to interpret "process", but they can't just say "software processes aren't processes". Like business methods - Congress updated the Patent Act in 2011 and made some changes to the infringement defenses for business method patents. Well, that kinda implies that Congress thought that business method patents should exist: they don't write laws for how to regulate unicorns. Same thing with software - people have been patenting software for 30 years and the Patent Act has been updated three times in that period... but Congress never amended the definitions to say "process does not include 'software processes", so the assumption has to be that they meant them to be exist.
Can we also start focusing on "description sufficient for someone skilled in the art to duplicate the invention"? I think that would also take a bite out of vagueness. "I built that according to your instructions and it doesn't do that other stuff at all."
Hell, yeah. "I have no idea what you're even trying to describe" is a serious problem, and good grounds for invalidation.
It seems to be common in software patents to try and claim not just a method of doing X, but the whole *concept* of doing X.
So for instance, the *concept* of doing rubber-band bounce-back. Apple has a patent on this. (http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7479949.PN.&OS=PN/7479949&RS=PN/7479949)
To me this smacks of patenting an idea, rather than a specific way of implementing an idea.
That one's not the rubber-band patent, nor is it just a concept... They claimed:
11. A computer-implemented method, comprising:
at a computing device with a touch screen display, detecting one or more finger contacts with the touch screen display;
applying one or more heuristics to the one or more finger contacts to determine a command for the device; and
processing the command;
wherein the one or more heuristics comprise:
a vertical screen scrolling heuristic for determining that the one or more finger contacts correspond to a one-dimensional vertical screen scrolling command rather than a two-dimensional screen translation command based on an angle of initial movement of a finger contact with respect to the touch screen display;
a two-dimensional screen translation heuristic for determining that the one or more finger contacts correspond to the two-dimensional screen translation command rather than the one-dimensional vertical screen scrolling command based on the angle of initial movement of the finger contact with respect to the touch screen display; and
a next item heuristic for determining that the one or more finger contacts correspond to a command to transition from displaying a respective item in a set of items to displaying a next item in the set of items.
Which seems to be rules for determine whether you're scrolling, dragging, or flipping apps/tabs.
The biggest problem here isn't the question of software patents. It's patents on things that are obvious, or are an obvious progression from something that's already common (eg. taking the manual process of balancing a checkbook and having a computer perform the exact same steps). It's just that software is the field where it's taken root the most, I think because people treat computers as some sort of magic that transforms the ordinary into something extraordinary.
The most straightforward way to deal with it might be to take computers out of the picture. Start by asking the question "If we replaced the computer with a trained monkey who could slavishly follow instructions, would this be patentable?". If the answer is "Yes.", then the patent's valid. If the answer's "No.", then the burden should be on the patent-holder to explain why the application of a computer to this problem is so non-intuitive, so non-obvious, that someone familiar with the problem and computers would not think of letting a computer handle the chore. And "Because nobody's done it before." is not a valid response. Someone always has to be the first one to try to solve a problem.
Sure, but that's not the question being asked. Specifically, there are three relevant statutes here:
35 USC 101 states that processes, machines, compositions of matter, and articles of manufacture are patent eligible, provided that the claimed invention meets the other requirements.
35 USC 102 states that the claimed invention must be new - i.e. "nobody's done it before."
35 USC 103 states that the claimed invention must be nonobvious - i.e "so non-intuitive, so non-obvious, that someone familiar with the problem" would not come up with the solution.
But these are three different statutes, with different tests. 102 and 103 require prior art evidence - "is this new? What about this, where it was done exactly that way last year?"; or "isn't this obvious because it's just a combination of two known things that, even though they haven't been done together before, they'd be trivial to combine?"
The test for 101, however, is the issue here, and there really isn't a good test. Specifically, the fight is over what it means for a "process" to fit within the patent eligible range: say you actually solve the black hole information paradox and write an application claiming a method for retrieving information from a black hole. It's certainly never been done before, and I doubt anyone would call it obvious... but is it patent eligible? No, under the current understanding, because it's directed to a natural phenomenon.
See, novelty and obviousness are different questions. This is just about that strange first one, where something can be absolutely non-intuitive and genius, but not eligible, like Einstein's general relativity; or something can be in the field of patent eligible subject matter - like a process for putting butter on toast - but be totally old and well known and invalid under 102.
Now, that doesn't mean we throw our hands up and say "patent trolls win". It's just that 101 isn't the right tool to defeat them. If they're claiming something that's already common "but on a computer", well - computers are well known, the checkbook balancing is well known... first, we should be able to show that they've been done together before and therefore it's invalid under 102. Second, even if we can't, since both are well known, and combining them is trivial, then the combination is obvious under 103.
See, there's no need to make a grand sweeping rule that all software is forever ineligible, regardless of how revolutionary and world-changing it is... instead, we just want to get rid of stupid obvious patents, so let's start focusing on when things are stupid and obvious, not just whether they're done on a computer or not.
That would spur innovation and business far more than upholding them could.
I doubt the authors of the constitution ever foresaw the risk of patent trolling.
Patent law is in Article I, Section 8 and is the exclusive domain of Congress. While SCOTUS can interpret the statute - "oh, when Congress said 'whoever invents or discovers any new and useful process,' they didn't mean that to include natural laws since they're not really 'new', but just 'heretofore unknown'" - they can't rewrite it. If software patents should be completely eliminated, then Congress should amend the statute to explicitly exclude them.
I'm happy to change the topic to discuss this, but first we should acknowledge that you are apparently conceding that the design patent was just about rounded corners.
One of the things that make software patents bad (only one of them) is the fact you can't be certain whether you infringe them, even when you have the patent right in front of you. This is due to ambiguities in the patent. You simply cannot know which way claim construction is going to go.
If you aim is not to infringe a patent, you must avoid the most broad interpretation the patent has, since you never know how that is going to be interpreted.
Back to our design patent.
This is not a software patent, however, as you acknowledge. This is a design patent - there is no Markman hearing, and claim interpretation is not an issue. Furthermore, the problems you speak of are not unique to software patents, but are true of every utility patent: inevitably in any litigation, one side wants some word construed one way, the other side wants it construed a different way. That has nothing to do with software, but rather the inherent ambiguity of descriptive language.
The bezel is clearly marked with a dotted line. To the best of my understanding, that means it is not a part of the patent. The same goes for the earphones jack location and the charging socket. Moving any of those around not will cause you to not infringe the patent. Probably. I think. To the best of my limited understanding.
Your understanding is correct, with one caveat - that's the screen border, not the bezel. But I do understand the part you're referring to and yes, features shown in dotted line in a design patent are not part of the claimed design.
Basilbrush is trying to claim that the aspect ratio, clearly part of the solid lines, is part of the patent. Just as clearly, however, Apple did not think so.
I'll need a citation on that latter assertion. As I recall, in the German case where the whole "rounded corners" quote comes from, Apple explicitly referred to the aspect ratio as being one of the many specified elements in the design.
That means that whether he (she?) is right or wrong is irrelevant. When you are trying to avoid infringement, you had !@$#%!@# better assume a different aspect ratio will not save you.
Which brings us back to the bezel. At trial, Apple has a clear interest to show the patent as being as narrow as possible, while still including whatever it is Samsung has done. Make the patent seem too broad, and the jury might think it is invalid. So it is entirely possible that Apple bringing up the bezel was a strategic move.
Of course, they are safe to bring it up as, at the point, they already knew what Samsung did and did not do. It is entirely possible^H^H^H^H^H^H^H^Hlikely that, given other circumstances, Apple would have claimed that the bezel means nothing at all, but the color has to be different, or that the bezel and the color are both irrelevant, but having a logo would have changed everything. Apple's strategy during the trial is dictated by Samsung already past actions.
Discussing what a patent covers, however, pertains to future actions and future litigation. Combining all the different, often conflicting, ways to read this patent yields just one strategy to avoid infringement: don't use rounded corners.
So whether Basilbrush is right or not, the patent covers "hand held device with rounded corners" (the hand is marked with solid lines, so I think it is safe to say it is mandatory). Anything else is a risk.
Design patents are similar to trade dress - the test for design patent infringement is whether an ordinary observer would consider the patented design and accused design of being substantially the same. In trade dress, the test is whether a consumer woul
Remote wiping protects your data. It doesn't destroy the value of the stolen phone. This would prevent the phone from being ever reused with a new SIM card, eliminating the market for stolen phones for anything other than scrap parts, and probably drastically reducing theft.
Slashdot Mirror
... which i'd suggest counts as both obvious *and* prior art.
Respectfully, and without necessarily disagreeing with your fundamental point, those terms don't mean what you think they do, legally.
"Prior art" is "anything in the relevant art, that's prior." The Wright Brother's plane is prior art for the Space Shuttle. The Model T is prior art for the Tesla Model S. That doesn't mean they're anticipatory prior art, which is art that teaches everything in a patent claim. So, for example, even though the Model T is prior art for the Model S, it wouldn't invalidate a patent on the battery pack, for example. Similarly, sliding deadbolts are prior art for the virtual slide-to-unlock, but they alone don't show everything in the patent.
"Obvious" is a legal conclusion, like "guilty". It's different than just the "duh" gut feeling that we typically mean when we call something obvious. And just as you show someone is guilty by showing that they committed each and every element of a crime, you show that something is obvious by showing that one or more pieces of prior art exist that, alone or in combination, teach each and every element of the patent claim. So, again, sliding deadbolts show unlocking something... but they alone don't show all the other bits of the claim, like a handheld electronic device. That means you'd have to at least combine "deadbolts" plus "mid-90s Palm smartphone" to show that element.
Using the right terms - anticipatory prior art when you mean that, or obvious when you have a combination of prior art references to invalidate a claim - will increase your credibility with people who are in power to make changes to the patent system.
1. A method of unlocking a hand-held electronic device, the device including a touch-sensitive display, the method comprising:
detecting a contact with the touch-sensitive display at a first predefined location corresponding to an unlock image;
continuously moving the unlock image on the touch-sensitive display in accordance with movement of the contact while continuous contact with the touch screen is maintained, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device; and
unlocking the hand-held electronic device if the moving the unlock image on the touch-sensitive display results in movement of the unlock image from the first predefined location to a predefined unlock region on the touch-sensitive display.
To show a patent claim is not new, you have to show that a single piece of prior art shows everything in the patent claim. This piece of prior art wouldn't do that, since it doesn't show a hand-held electronic device, doesn't really show "continuous" movement as opposed to switching between several icons, and it doesn't show unlocking a device. But that's just one of the requirements for validity - 35 USC 102. Incidentally, this type of prior art is called "anticipatory prior art," because it anticipates everything in the patent. It's what laymen usually mean when they say "there's prior art for X patent!" That statement doesn't mean anything, because there's always prior art for something - Neanderthal Ug's wheel is prior art for all-terrain run-flat tires. Just not anticipatory prior art.
Another requirement is non-obviousness - 35 USC 103. Under this requirement, you can show that a patent claim is obvious by showing that a combination of prior art references together teach each and every element in the claim and that they could be reasonably combined. So, if the Claim is A+B+C+D and one reference shows A+B and another shows C+D and they could be combined, that shows that the Claim is obvious.
So, for example, if you can find other references that show a hand-held device, continuous movement of an image, and unlocking a device, those combined with this may be enough to show that the Claim is obvious. That should be pretty easy to find.
One caveat there is that if a reference teaches away from the combination, it may not be available to use in the rejection. So, if the C+D reference says "never combine me with A+B, because bad things happen", then it may not be obvious to combine it with A+B (there may also be an unrecognized E element that makes it work with C+D). Here, the usability study at the end of the video seems to argue away from using sliders as touch-screen switches. But that may not be a strong enough disparagement of their use, nor does it necessarily argue away from its combination with an unlocking system.
Disclaimer: I am a patent attorney, but I am not your patent attorney. The above is not legal advice and is merely for (my own) amusement purposes. I have not spent any serious time looking into this patent, the specification, or any of the dependent Claims.
There is no default implicit agreement to not share the video, no matter how much you want there to be. You have to be proactive and state it, in writing or orally . The default state of copyright law is that if you give me consent to record you, i can share it. It is upon you to prove a further contract between us exists, disallowing sharing.
You: "But copyright law!"
Me: "There's more at issue here than just copyright law."
You: "... but, but, but copyright law!"
Me: "It's not just copyright. There are privacy rights, defamation rights, and not to mention just plain contract rights."
You: "... copyriiiiiiiight!"
I see this is a waste of time, friend. Good day.
If you consent to let someone film you (absent an agreement), you are by law giving them consent to do with it as they please. That is copyright 101. That wont be changing anytime soon.
First, that's copyright law. We're not talking about copyright, but rather all sorts of other rights, which you haven't given up by consent to being filmed. If you consent to letting someone film you, are you giving them consent to beat you about the head and shoulders with the camera? Are you giving them consent to sodomize you with the tape? Nope. All you are consenting to is being filmed. Period.
Second, even focusing just on the copyright issue, your argument defeats itself in the first 11 words. "If you consent... absent an agreement"? In other words "if you agree, but without an agreement"? Did you miss the contradiction there? Of course you have an agreement - that's what consent is: you agree to let someone film you. If you didn't have any agreement, they wouldn't have your consent and it would be invasion of privacy.
And so yes, there is an agreement... Then the question is simply what the scope of that agreement is - record and view privately? Record and publicly distribute? Record and beat you with the camera? Of course not to the latter, as I'm sure you agreed in my prior point.
No, consent to one thing does not imply consent to any other thing. That's simply not the way agreements work, legally or morally.
Im not discouraging anyone from making sex tapes, only educating them on the ramifications of if they do. Get an agreement, verbal or oral, and preferably use NON internet connected devices to do so to retain control of your image.
As noted above, there is an agreement in play. And you were saying that, regardless of such an agreement, "Don't want to have a sex tape leaked? Don't agree to be filmed." You're defending people who breach agreements, attacking the victim, and yes, discouraging people from making sex tapes.
"This is a no-brainer. Revenge porn is an abuse of trust." This is a MASSIVE assumption. If you allow someone to record you in intimate acts, you have no one to blame but yourself. Free Speech trumps hurt feelings for 'lapses of morality'. Dont want to have a sex tape leaked? dont agree to be filmed.
First, that's entirely wrong. Your argument is premised on the concept that if you consent to one thing - e.g. making a sex tape - you consent to everything that can possibly be done with it. That's not true. Consent can be as narrow or broad as the consenting person wants. If you let me borrow your car, you're not necessarily consenting to let me rent out your car to my friends for use in a demolition derby. Consent to one thing is not consent to everything.
Second, your argument is an attempt to discourage people from making sex tapes. What are you, asexual? And if so, then why is this an issue you're concerned about? Shouldn't you be off not-masturbating somewhere? The rest of us would prefer that people make sex tapes, happily and in full confidence that their privacy will not be abused and their narrow consent to make a sex tape and share it with one or two people will not be broadened by some douchebag into consent to have it broadcast online.
And here I am with my tail between my legs. Don't bother wasting your time replying to point out my own misunderstanding of the law; I've just made myself quite aware of this (ironically, as I no longer hold that misunderstanding).
No worries. Cheers.
You're confusing libel with defamation.
Uh... Libel is a subset of defamation. That's like saying "you're confusing tuna with fish".
can defame someone's character by making public some private piece of information about them, which is 100% completely factually accurate, which the general population of people who know that person would find to be out of character for them.
Yes, that's why my post specifically referred to both false light and invasion of privacy. In fact, I even called it "'false light' defamation".
That is to say, unless you're such a slut or manwhore that your own friends will attest to that fact under oath, you have a pretty solid case for defamation of character when someone posts porn of you without your consent.
Except that the easiest defense to defamation complaint is to show that the alleged libel is true. Is the plaintiff actually in the pictures? Yes. Are they modified in any way? Nope. The act depicted actually occurred? Yes. Therefore, no defamation.
The closest you would get would be either "false light" defamation, if there's a false implication that the person does this for money, or just standard invasion of privacy. But both of those are significantly less bullet-proof than you were claiming.
Interesting. Seriously - thanks for the reply and link. For reasons I can't quite fathom, I find IP law fascinating - though it's only tangentially related to my work (engineer).
No problem. I quite enjoy it - I was an engineer for 10 years, then shifted into patent law. It's a lot of fun, and really, it's just more engineering. Mind you, I don't do litigation, just working with inventors and the patent office.
Really? (and I say that as a genuine question, not some snarky reply)
I always thought you could "make your own" from patent filings, you just couldn't sell/trade/traffic/commercialize it. So if I wanted to construct a swing in my backyard and use it in a sideways motion (with or without the Tarzan yell), such as currently under patent http://patft.uspto.gov/netacgi... , I could do so without fear of repercussion, but I could not sell such a swing setup to others without violating the rights of the patent owner. Your definition of "use" would prevent such a project in my back yard.
Yes, you are incorrect there. The statute is 35 USC 271 and states:
Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
Note that there's no commercial requirement - this is unlike trademark law, where infringement has to include commercial use, because federal trademark law comes out of the commerce clause, while patents are under Article 1, section 8, clause 8. Merely using a patented invention is infringement, even if it's for completely non-commercial gain. In fact, this why there was the whole big controversy over the BRCA1 gene in Assoc. for Molecular Pathology v. Myriad Genetics: one of the concerns was that if Myriad could patent an isolated gene, then scientists couldn't use that isolated gene even in their non-profit research on cancer cures.
Two things, though: first, that swinging on a swing patent has been invalidated. ;)
Second, for the most part, if you're making something for personal use in your home, the patent owner may never find out about it, so while you may be infringing, you're unlikely to get sued. Even if you do, the reasonable royalty for private, personal home use may be negligible. Let's pretend that the swinging patent was still valid and you did it... What's a reasonable royalty? A nickel? Maybe an entire quarter? It's going to cost someone at least $50k to file suit for infringement, and even if by some incredible odds you were found to willfully infringe and be held liable for their attorney fees, they'd still lose money, just due to inflation and lost investment opportunity. Plus, a judge would probably refuse the attorney's fees, because someone who sues over twenty-five cents is someone who is wasting the court's time, so why should they end up anywhere close to whole?
I don't buy the auto analogy, mainly because the insurance companies have nothing to do with the suit, except though my contract with them for payment of an award. The only reason their lawyers get involved is because it's their money.
But they have no right to interfere in the suit, even if it's their money, unless they can be made a party. That's what FRCP rule 14 is all about. As a result, they do have something to do with the suit, albeit indirectly to the main controversy. Civil procedure is weird that way.
I have a buffalo wireless router I purchased many years ago, and if the courts interpret "use" as you say, then I am in direct violation of several patents (since Buffalo, afaik, never paid for the patents they used)
Yes, quite possibly. It would depend on the claims at issue, of course.
Specifically, some claims are written from an active client perspective - "receiving, by a router, a wireless communication; processing, by the router, the communication to do something really awesome; etc." Buffalo may make routers, but do they infringe such a claim?
Apple, Microsoft, Dell, BlackBerry, Nokia, etc. don't make LED's, they buy them . Hence they're customers. Does this mean that the absurd idea of suing customers in addition to manufacturers has been accepted? Patent trolling is bad, but this is just plain nuts.
Patents give the owner an exclusive right to make, sell, import, or use an invention. While customers aren't making, selling, or (sometimes) importing the product, they are using it.
Now, that said, various exhaustion and indemnification rights may exist. In fact, frequently what happens is the patent owner sues a customer, the customer brings in the manufacturer as a third party defendant under rule 14, and then the customer walks away and the manufacturer and patent owner hash things out. Same thing occurs when there's a car accident - I sue you, you bring in your insurance company, and then I and your insurance company figure it out. I can't sue them directly, because I have no privity of contract with them or grounds for suit against them.
This isn't anything to do with trolling - this is just a standard thing for when A has a cause of action against B, and B has a defense by way of C.
I'm not one to normally jump on the paid shill conspiracy theory, as I think there are plenty of fanboys out their to make crazy biased statements, but your's is something like the 4th or 5th post I have seen that makes that exact same claim. Literally stating that the only Apple product shown is someone working on a Macbook, and that there are is no iPhone being shown. This is obviously patently (get it???) false. See 3:02 in the video, where they are discussing what is patentable and they show a full screen shot of the iPhone specifically.
I am going to have to believe that Apple does in fact have people posting on Slashdot today.
No, I concede the point - it's a 15 minute video and I skimmed through, saw the Macbook, and said, "wait, that's what they're complaining about?" Once someone pointed out the bit at 3:02, I agree that it's a lot more suspicious - or at the least, a terrible idea and certainly gives the impression of bias.
I pretty sure that you need to describe how you separate the cotton fibers. If someone can figure out a new way to do it, they can make their own machine without infringing you patents. They could even patent their own method.
Yes and no... I have to describe one method of separating the fibers to meet the requirements of 35 USC 112, but I can claim the general process of separating them, if I'm the first person to do so and it wasn't obvious (and before you object that of course, it's obvious, I agree - but we're talking about whether a process should be rejected as not directed to patent eligible subject matter, regardless of whether it's new or nonobvious, but simply because it's really broad).
Now, yes, you can patent your own specific method for separating fibers as an improvement on my general invention. But you can't practice it without infringing my patent. My patent is what's referred to as a "blocking" patent. Of course, I can't practice your method without infringing your patent. This is a good thing, though, as it leads to us both cross-licensing each other's patents.
That is the basic problem we have with how software patents work in the real world. They describe the idea, not the actual implementation. So anyone else who does rubber banding in the UI will infringe no matter how they implement it.
And, like I said, if no one had ever done rubber banding before and it wasn't obvious to do so, then why is that an issue? If you invent a new revolutionary field of technology (not that I'm claiming rubber banding qualifies, but stick with me), why shouldn't you get a patent covering the entire field, generally? Why should you be limited to just one part of it, if you invented the entire thing and it wasn't obvious?
I think the real issue here is that we intuitively feel that rubber banding is a stupid and obvious UI element and we would love to find prior art to invalidate the patent... but that takes effort and time, and it's much easier to simply say "UI interfaces aren't patentable". But that's not how the law should work, any more than we should just be able to say "that guy looks guilty, so let's not bother with a trial and evidence, because that takes time and effort."
Do you realise a keyboard and a mobile phone are different products, again , I repeat you have no concept of trade marks beyond I own everything greed. They are strictly limited.
First, this is actually trade dress, not trade marks. Similar, and still falls under Lanham 43, but if you're throwing around the "you have no concept of what we're talking about" stone, you might want to make sure it's the correct stone. Otherwise, you're liable to hit one of your glass walls, y'know.
Second, trademark registrations under Lanham 32 are "strictly limited" to fields. For example, here is the registration record for Blackberry. And here's the fields it's "strictly limited" to:
IC 009. US 021 023 026 036 038. G & S: Apparatus for recording, transmission, processing or reproduction of data, sound or images, namely, electronic handheld units, mobile phones, telephones, smartphones, personal digital assistants (PDAs) for the wireless transmission of data and/or voice signals; data processing equipment, namely, printers, scanners, cameras and computers for use with electronic handheld devices; computers; mobile computing and communication devices, namely, mobile phones, smartphones, personal digital assistants (PDAs), tablet phones, tablet computers, mobile computers, and mobile apparatus for recording, transmission, processing or reproduction of data, sound or images; computer communication software for the synchronization, transmission and sharing of data, calendar, content and messaging between one and more electronic handheld devices and data stored on or associated with a computer; computer software and programs in the field of music, movies, animation, electronic books, digital maps in the fields of general entertainment and communications; computer software for navigation; the aforementioned for computing and communication devices in the nature of apparatus for recording, transmission, processing or reproduction of data, sound or images, data processing equipment, and computers, and mobile computing and communication devices in the nature of mobile phones, smartphones, personal digital assistants (PDAs), tablet phones, tablet computers, mobile computers, and mobile apparatus for recording, transmission, processing or reproduction of data, sound or images. embedded computer software for the synchronization, transmission and sharing of data, calendar, content and messaging between one and more electronic handheld devices and data stored on or associated with a computer, the aforementioned software used as a feature found on the foregoing computing and communication devices and mobile computing and communication devices; embedded computer software for GPS navigation used as a feature found on the foregoing computing and communication devices and mobile computing and communication devices; downloadable software for the synchronization, transmission and sharing of data, calendar, content and messaging between one and more electronic handheld devices and data stored on or associated with a computer, the aforementioned software for the foregoing computing and communication devices and mobile computing and communication devices; mobile application software for the synchronization, transmission and sharing of data, calendar, content and messaging between one and more electronic handheld devices and data stored on or associated with a computer, the aforementioned software for the foregoing computing and communication devices and mobile computing and communication devices; downloadable entertainment content, namely, music, movies, animation, electronic books, digital maps in the field of general entertainment and communications; downloadable entertainment content in the nature of games, and music; downloadable video recordings; operating system software for the foregoing computing and communication devices and mobile computing and communication devices; enterprise software, the afo
I agree its incredibly odd. I might stick with examples from over 25 years ago to avoid actual current patents as much as possible.
Watch the video linked above. It doesn't use any examples. It simply shows someone using a CAD program on a laptop which happens to be a Macbook.
But "obviousness" is too fuzzy a concept... One way to measure "obvious" is a panel of experts. But what if none of the "experts" know about the new "kits" on the block such as solid-state electronics or web standards?
In practice, it's not that fuzzy: the current test for obviousness used by the courts and the patent office relies on the existence of prior art to avoid hindsight. It also avoids the problem of having a panel of "experts" that you have to keep sequestered... and therefore who would fall behind the state of the art and would shortly not be experts anymore. Specifically, the test is whether one or more pieces of prior art, alone or in combination, teach or suggest each and every element of the claimed invention. In other words, if the patent claims a process with steps A+B+C+D+E, and one piece of art does A+B+C and another does D+E and you could combine them without it exploding, then the patent is per se obvious.
So, for example, in the 60s, mechanical intermittent wipers existed; solid state timer circuits existed; therefore, it would be obvious to make a solid state timer-driven intermittent wiper... at least, if that's all the patent claimed. If you started adding more and more details until the claim recites a step or part F that wasn't in the prior art, then it wouldn't necessarily be obvious anymore... but it also wouldn't cover every possible implementation of solid state-driven intermittent wipers, which is the proper result.
The law they wrote made it easier for business method patents to be thrown out and challenged in court. They had the oppurtunity to overule SCOTUS and get rid of Bilski. Instead they made it easier for Bilski to used. That kinda implies the opposite.
No, it implies that they intended for business methods patents to exist generally, but that low quality ones should be invalidated. Certainly, it makes no sense to have a process for challenging them if you were just going to wipe them all out with a single amendment. It'd be like Congress writing a procedure for you to protest how your neighbor is storing their nuclear weapons: adding such a procedure makes no sense since they aren't allowed to have them, period.
That's still massively vague and far-reaching. They should be able to patent the specific heuristics themselves. They should not be able to patent the idea of using heuristics to figure out what to do.
Its like patenting the cotton gin as follows:
11. A mechanically-implemented method, comprising: one or more lengths of iron or other metal commonly used in the field of production to separate the fibers of the cotton from their seeds; applying motion to various parts of the machine to determine which portions of the cotton are fibers; inputting energy into the system in order to achieve separation of fibers; a grading to determine when sufficient fibers have been separated; and a mechanism for disposing of the seeds and resetting the device.
Without specifics, they're still describing the idea of a rubber-band display. You could build one using all of your own formulae for behavior and appearance, and you'd still be in violation of their patent.
And, if you were the first person to ever separate cotton fibers or create intuitive user interfaces, wouldn't that be reasonable? Isn't the bigger issue here the fact that it may be not new or obvious to do, rather than just that it's an idea?
It is their job to settle disputes between the federal circuit judges. With this case went before 10 judges their was 7 different opinions. No majority opinion. They could not find 6 judges who could agree what the law was. No one has any clue what Congress meant by process. So they sort of don't have a choice but to interpret the statute.
Sure, they have to interpret "process", but they can't just say "software processes aren't processes". Like business methods - Congress updated the Patent Act in 2011 and made some changes to the infringement defenses for business method patents. Well, that kinda implies that Congress thought that business method patents should exist: they don't write laws for how to regulate unicorns. Same thing with software - people have been patenting software for 30 years and the Patent Act has been updated three times in that period... but Congress never amended the definitions to say "process does not include 'software processes", so the assumption has to be that they meant them to be exist.
Can we also start focusing on "description sufficient for someone skilled in the art to duplicate the invention"? I think that would also take a bite out of vagueness. "I built that according to your instructions and it doesn't do that other stuff at all."
Hell, yeah. "I have no idea what you're even trying to describe" is a serious problem, and good grounds for invalidation.
It seems to be common in software patents to try and claim not just a method of doing X, but the whole *concept* of doing X.
So for instance, the *concept* of doing rubber-band bounce-back. Apple has a patent on this. (http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7479949.PN.&OS=PN/7479949&RS=PN/7479949)
To me this smacks of patenting an idea, rather than a specific way of implementing an idea.
That one's not the rubber-band patent, nor is it just a concept... They claimed:
11. A computer-implemented method, comprising:
at a computing device with a touch screen display, detecting one or more finger contacts with the touch screen display;
applying one or more heuristics to the one or more finger contacts to determine a command for the device; and
processing the command;
wherein the one or more heuristics comprise:
a vertical screen scrolling heuristic for determining that the one or more finger contacts correspond to a one-dimensional vertical screen scrolling command rather than a two-dimensional screen translation command based on an angle of initial movement of a finger contact with respect to the touch screen display;
a two-dimensional screen translation heuristic for determining that the one or more finger contacts correspond to the two-dimensional screen translation command rather than the one-dimensional vertical screen scrolling command based on the angle of initial movement of the finger contact with respect to the touch screen display; and
a next item heuristic for determining that the one or more finger contacts correspond to a command to transition from displaying a respective item in a set of items to displaying a next item in the set of items.
Which seems to be rules for determine whether you're scrolling, dragging, or flipping apps/tabs.
The biggest problem here isn't the question of software patents. It's patents on things that are obvious, or are an obvious progression from something that's already common (eg. taking the manual process of balancing a checkbook and having a computer perform the exact same steps). It's just that software is the field where it's taken root the most, I think because people treat computers as some sort of magic that transforms the ordinary into something extraordinary.
The most straightforward way to deal with it might be to take computers out of the picture. Start by asking the question "If we replaced the computer with a trained monkey who could slavishly follow instructions, would this be patentable?". If the answer is "Yes.", then the patent's valid. If the answer's "No.", then the burden should be on the patent-holder to explain why the application of a computer to this problem is so non-intuitive, so non-obvious, that someone familiar with the problem and computers would not think of letting a computer handle the chore. And "Because nobody's done it before." is not a valid response. Someone always has to be the first one to try to solve a problem.
Sure, but that's not the question being asked. Specifically, there are three relevant statutes here:
35 USC 101 states that processes, machines, compositions of matter, and articles of manufacture are patent eligible, provided that the claimed invention meets the other requirements.
35 USC 102 states that the claimed invention must be new - i.e. "nobody's done it before."
35 USC 103 states that the claimed invention must be nonobvious - i.e "so non-intuitive, so non-obvious, that someone familiar with the problem" would not come up with the solution.
But these are three different statutes, with different tests. 102 and 103 require prior art evidence - "is this new? What about this, where it was done exactly that way last year?"; or "isn't this obvious because it's just a combination of two known things that, even though they haven't been done together before, they'd be trivial to combine?"
The test for 101, however, is the issue here, and there really isn't a good test. Specifically, the fight is over what it means for a "process" to fit within the patent eligible range: say you actually solve the black hole information paradox and write an application claiming a method for retrieving information from a black hole. It's certainly never been done before, and I doubt anyone would call it obvious... but is it patent eligible? No, under the current understanding, because it's directed to a natural phenomenon.
See, novelty and obviousness are different questions. This is just about that strange first one, where something can be absolutely non-intuitive and genius, but not eligible, like Einstein's general relativity; or something can be in the field of patent eligible subject matter - like a process for putting butter on toast - but be totally old and well known and invalid under 102.
Now, that doesn't mean we throw our hands up and say "patent trolls win". It's just that 101 isn't the right tool to defeat them. If they're claiming something that's already common "but on a computer", well - computers are well known, the checkbook balancing is well known... first, we should be able to show that they've been done together before and therefore it's invalid under 102. Second, even if we can't, since both are well known, and combining them is trivial, then the combination is obvious under 103.
See, there's no need to make a grand sweeping rule that all software is forever ineligible, regardless of how revolutionary and world-changing it is... instead, we just want to get rid of stupid obvious patents, so let's start focusing on when things are stupid and obvious, not just whether they're done on a computer or not.
That would spur innovation and business far more than upholding them could.
I doubt the authors of the constitution ever foresaw the risk of patent trolling.
Patent law is in Article I, Section 8 and is the exclusive domain of Congress. While SCOTUS can interpret the statute - "oh, when Congress said 'whoever invents or discovers any new and useful process,' they didn't mean that to include natural laws since they're not really 'new', but just 'heretofore unknown'" - they can't rewrite it. If software patents should be completely eliminated, then Congress should amend the statute to explicitly exclude them.
I think we need to cover what makes patents bad.
I'm happy to change the topic to discuss this, but first we should acknowledge that you are apparently conceding that the design patent was just about rounded corners.
One of the things that make software patents bad (only one of them) is the fact you can't be certain whether you infringe them, even when you have the patent right in front of you. This is due to ambiguities in the patent. You simply cannot know which way claim construction is going to go.
If you aim is not to infringe a patent, you must avoid the most broad interpretation the patent has, since you never know how that is going to be interpreted.
Back to our design patent.
This is not a software patent, however, as you acknowledge. This is a design patent - there is no Markman hearing, and claim interpretation is not an issue. Furthermore, the problems you speak of are not unique to software patents, but are true of every utility patent: inevitably in any litigation, one side wants some word construed one way, the other side wants it construed a different way. That has nothing to do with software, but rather the inherent ambiguity of descriptive language.
The bezel is clearly marked with a dotted line. To the best of my understanding, that means it is not a part of the patent. The same goes for the earphones jack location and the charging socket. Moving any of those around not will cause you to not infringe the patent. Probably. I think. To the best of my limited understanding.
Your understanding is correct, with one caveat - that's the screen border, not the bezel. But I do understand the part you're referring to and yes, features shown in dotted line in a design patent are not part of the claimed design.
Basilbrush is trying to claim that the aspect ratio, clearly part of the solid lines, is part of the patent. Just as clearly, however, Apple did not think so.
I'll need a citation on that latter assertion. As I recall, in the German case where the whole "rounded corners" quote comes from, Apple explicitly referred to the aspect ratio as being one of the many specified elements in the design.
That means that whether he (she?) is right or wrong is irrelevant. When you are trying to avoid infringement, you had !@$#%!@# better assume a different aspect ratio will not save you.
Which brings us back to the bezel. At trial, Apple has a clear interest to show the patent as being as narrow as possible, while still including whatever it is Samsung has done. Make the patent seem too broad, and the jury might think it is invalid. So it is entirely possible that Apple bringing up the bezel was a strategic move.
Of course, they are safe to bring it up as, at the point, they already knew what Samsung did and did not do. It is entirely possible^H^H^H^H^H^H^H^Hlikely that, given other circumstances, Apple would have claimed that the bezel means nothing at all, but the color has to be different, or that the bezel and the color are both irrelevant, but having a logo would have changed everything. Apple's strategy during the trial is dictated by Samsung already past actions.
Discussing what a patent covers, however, pertains to future actions and future litigation. Combining all the different, often conflicting, ways to read this patent yields just one strategy to avoid infringement: don't use rounded corners.
So whether Basilbrush is right or not, the patent covers "hand held device with rounded corners" (the hand is marked with solid lines, so I think it is safe to say it is mandatory). Anything else is a risk.
Design patents are similar to trade dress - the test for design patent infringement is whether an ordinary observer would consider the patented design and accused design of being substantially the same. In trade dress, the test is whether a consumer woul
Remote wiping is already possible.
Remote wiping protects your data. It doesn't destroy the value of the stolen phone. This would prevent the phone from being ever reused with a new SIM card, eliminating the market for stolen phones for anything other than scrap parts, and probably drastically reducing theft.