First things first: let's agree that all software is a subset of mental processes, and thus equivalent to other excluded categories for the purposes of 101.
With the stipulation that we're talking about software per se, yes.
Given that, most of what is considered to be software patents has hardware involvement that would be accurately classed as a post-solution activity. Your examples of a electronic device, processor, and electronic device are no different than Flook's alarm.
I believe you're misreading Flook, particularly in light of later developments. Look at Flook's claim - it would likely fail 101 under Bilski's test, which I think would apply better.
More importantly, while Flook's "adjusting an alarm limit" is actually post-solution activity, the hypothetical cancer-diagnosis claim we're discussing has the machine tied into every step of the process. Flook's claim was mental step, mental step, mental step, adjust an alarm (which, honestly, is almost a mental step too). Our claim is machine process, machine process, machine process, output. Very different. To read Flook the way you are is to basically say that any use of a machine is "post-solution activity", regardless of what the machine is: say, for example, you have a new process for forging steel. You could read that as "determining how to forge steel" and then "forging it" in order to wave away any specifics. And that's what you do:
In fact, if we consider a human an electronic device, the brain a processor, and one's mind's eye as a display, your patent works pretty well as a mental process without modification.
That's fine - we don't consider a human "an electronic device", the brain "a processor", and the mind "a display". Now, if you have a specification that redefines those terms as they're understood by one of ordinary skill in the computing arts to include a human, then sure, but we don't. This goes back to what I was saying earlier: you're essentially rewriting the claim to remove any machine elements and then say that the resulting claim, stripped of patent eligibility, is magically ineligible. Well, sure, but that's not the claim at issue. Redefining the machine terms to include a human, when they wouldn't otherwise, is simply the same process.
Claims must be read as a whole, interpreting every element as understood by one of ordinary skill in the art, unless explicitly redefined. Rewriting claims or redefining terms in an effort to prove that something is merely a mental process is to ignore those explicit mandates.
I'm not sure how that addresses anything I said. The fact that we need our brains to think doesn't mean that you can rewrite a patent claim to remove all of those pesky bits that we don't actually do, in order to argue that the claim covers things it wouldn't otherwise cover.
Yes, but anything that can be done by a computer could be done by someone's mind. Even interacting with other hardware could theoretically be done, but the hardware you mentioned would easily fit the scope of a mere post-solution activity.
... I feel like we're going around in circles. I keep saying "look at the claim, it recites hardware, therefore while a similar method can be done in the mind, the claimed invention cannot," and you keep saying, "ignore the claim language, remove every reference to hardware, rewrite it to strike out any element that undercuts my argument, and the result can be done in the mind."
I agree with you that if you completely rewrite the claim to be a pure algorithm, deleting everything that would make it patent eligible, you have a non-patent eligible claim. But I disagree that that's reasonable, and precedent seems to be on my side, since a claim must be read "as a whole" (Diehr).
On the contrary - there didn't used to be a patent system, and innovation was very slow; then patents were created, and innovation accelerated. Or, look at countries, including first world countries such as Switzerland, that didn't implement patent systems for decades while others, such as America, had them. Or, look at countries that didn't have patent systems a few decades ago, such as Vietnam and South Korea, and look at how they're doing now.
Now, of course, you'll say, "but they had wars! That's different!" but that doesn't address Switzerland, which is why I threw that in as an example.
Additionally, you can look even to the computer industry - the pace of innovation in hardware and software is hugely accelerating compared to the 1970s, before software was patented. It took almost 10 years to move past 8-bit architecture in home computers. In that time we've gone from the first very simple Blackberries to heads-up displays that get people attacked in bars, with context-sensitive suggestions of search results, pretty accurate voice recognition, stereoscopic head tracking gaming, etc. Anti-software patent people keep claiming that the industry is stagnating... Since when, I ask?
In fact there's a fair amount of evidence that the patent system inherently slows progress, versus only a common-sense theory that it has a benefit. And as we all know common sense is often wrong in the face of complex systems. If there's any doubt about the question, shouldn't we be erring on the side of the immediate social good?
On the contrary, the economics of trade secrets have been heavily studied, and there really is no doubt that destroying them is a social good. That leaves you two options - encourage people to voluntarily destroy them via patents, or seize them via Marxism.
> Narrowing what the Federal Circuit thinks is patentable, yes. Narrowing what the Supreme Court thinks is patentable, no.
The Supreme Court rarely narrows what it thinks. They look for ways to judge each case in a way that (they can claim) is consistent with prior rulings.
The Supreme Court had never ruled on the subject matter of Mayo or Myriad before. Until they rule on something, the patents are "valid" if the PTO grants them and if the courts uphold them. In those two cases, the Supreme Court's ruling means the PTO has to stop granting a certain category of patents, and the lower courts have to stop upholding them against product developers. That means patentable subject matter got narrowed.
Yes, that's what I said. And in Bilski, patentable subject matter got broadened, when the Supreme Court said that the MoT test wasn't the sole test, and something could fail that standard but still be patent eligible.
>But that impenetrable fortress shouldn't be expanded outward either.
Not saying that it is, but why not? The whole point of patents, as explicitly stated in the Constitution, is "to promote science and the useful arts". If expanding the fortress is a net benefit to that end then it would seem trivially obvious that that is a desirable direction to move.
Yes, and if turning lead into gold is possible, then it would seem trivially obvious that that is a desirable task to engage in. Your premise, however, is not yet proven.
Tell Zynga's targe- er, competitors about how copyright is enough to protect software and patents are unnecessary.
You can't use a current example to prove patents are necessary, of course they are now, in this brave new world of IP protection mania. Once you introduce the idea and reality of software patents, they become essential for both defensive and offensive corporate strategy.
Except, you'll note, that I was referring to instances where patents weren't used. For example, NimbleBit's Tiny Tower was covered by copyright, which didn't do anything to protect them when Zynga came along and released Dream Heights.
The only way your argument - that patents were necessary to NimbleBit, say, only because software patents existed - works is if prior to software patents, copyright protection was stronger and would have helped. But it wasn't and never has been, even in the pre-software patent era.
But they're still an abomination, and contribute nothing of value to anyone who isn't a lawyer.
They also allow inventors to monetize their inventions, and they encourage companies to destroy trade secrets, contributing a lot to the public domain. In fact, that latter one is the real point of patents, and the first patent didn't even have any lawyers involved... except in as much as members of the government had legal backgrounds.
Remember, patents only last 20 years. Trade secrets can theoretically last forever.
Your example is almost identical to Parker v. Flook. The requirement for hardware is not an excuse because we need our brains to think.
I'm not sure how that addresses anything I said. The fact that we need our brains to think doesn't mean that you can rewrite a patent claim to remove all of those pesky bits that we don't actually do, in order to argue that the claim covers things it wouldn't otherwise cover.
As for 101, it is supposed to be a low bar, but there's supposed to be an impenetrable fortress around those exceptions.
But that impenetrable fortress shouldn't be expanded outward either.
Creation museum: customers tend to be poor, relatively uneducated, and don't understand basic science.
Whole Foods: customers are almost exclusively well-off, expensively educated, and don't understand basic science.
Everyone's stupid about something.
Creation museum: customers tend to believe in everything the museum present.
Whole Foods: 95% of customers don't even set foot in the homeopathy aisle, and are just there because they have fresher and better looking produce, locally-farmed meat, wild caught fish, fancy cheeses, etc.
I guess the article writer is stupid about believing that the 5% in the homeopathy aisle represent the majority.
> we can see pretty well which way they're leaning, based on Bilski and other cases.
If you check, you'll find that the last three subject matter cases taken by the Supreme Court have resulted in *narrowing* what is patentable.
Narrowing what the Federal Circuit thinks is patentable, yes. Narrowing what the Supreme Court thinks is patentable, no.
The Mayo and Myriad cases narrowed subject matter very explicitly, and while I originally read Bilski was neutral, it did actually cause the CAFC to start rejecting certain types of previously-accepted patents, and Bilski is also the reason we're seeing this case today.
Bilski was not neutral at all, but rather broadened patentability by rejecting the strict Machine-or-Transformation test and saying that it was merely an important clue: something could neither be transformative nor tied to a specific machine, but still nonetheless pass muster under 35 USC 101. That's broader than what the Federal Circuit was applying pre-Bilski.
... mind you, it hasn't had any effect on the USPTO's Examining corps. They still apply the MoT test.;)
I think a better example of how unnecessary software patents are is to look at the period known sometimes referred to as "the PC Revolution". Virtually all the software written in the early days of personal computing (Apple II, IBM PC, TRS-80, etc...) was not patented, in fact it was believed by most programmers at the time that software just wasn't patentable. And yet that period saw unfettered innovation in software, I will cite the invention of the spreadsheet as just one example. Nobody in the industry worried about patents, everybody made money, and innovation soared. What better proof is there that software patents are not only not needed, but in practice actually suppress innovation?
Tell Zynga's targe- er, competitors about how copyright is enough to protect software and patents are unnecessary.
Throwing a computer into an otherwise patentable process won't make it unpatentable, see Diamond v. Diehr. The concern is whether something that has no substantial steps outside of a computer can be patentable. I would say that the answer is no, since software could theoretically 'run' on any Turing Complete machine (ignoring the infinite memory stuff), and the human mind can operate in that way. Operations of the human mind are mental processes, and have been explicitly ruled not patentable.
But remember, the question there isn't whether the software could be done in the mind, but whether the claimed invention could be done in the mind. For example, and ignoring the obvious issue about obviousness, let's say I have a claim of:
1. A method for diagnosing cancer, comprising:
receiving an identification of a PSA count for a patient;
comparing the received identification of a PSA count to a threshold; and
diagnosing the patient as having cancer, responsive to the PSA count exceeding the threshold.
If I tell you that a patient has a PSA count of 100units/other unit (forgive me, I'm not a biologist) and that the threshold is 50 units/other unit, you can diagnose that patient as having cancer, right? And even just reading that sentence, you would technically have infringed that patent, because it only requires mental steps.
However, say instead that the claim was:
1. A method for diagnosing cancer, comprising:
receiving, by a comparator executed by a processor of an electronic device, an identification of a PSA count for a patient;
comparing, by the comparator, the received identification of a PSA count to a threshold; and
outputting to a display of the electronic device, by the processor, an identification of the patient as having cancer, responsive to the comparator determining that the PSA count exceeds the threshold.
You can't do that in your mind, by definition. You can do something very similar, but you couldn't possibly infringe that patent without using a computer - doing it purely with mental steps would be public domain.
So, the fact that any software could theoretically run on a Turing Complete machine or be done in the human mind is irrelevant, because you have to look at the claims - could they be done in the human mind. If they require hardware, then no.
And before you (understandably) claim that this is mere form over function, it is, and it isn't. The important point and the reason why there's the whole "law of nature, mathematical algorithm, natural phenomena" exemption is because we don't want to make a case where people can't not infringe. For example, if I discover gravity and get a patent claim on it, can I force you pay royalties for falling? And if you refuse, can I get an injunction that requires you to not fall?
Or, if I have that mental step diagnosis patent above, can I force you to pay royalties for reading that example sentence, or get an injunction to stop you from thinking about that example? Clearly not. We don't want to make thought crimes. So, that's why those exemptions are important...
But they're also supposed to be very narrow exemptions. This is 35 USC 101, the very first test for whether something is directed to patent eligible subject matter, which is supposed to cover "everything under the sun that is made by man" - i.e. any new and useful process, machine, article of manufacture, composition of matter, or improvement thereof. It's intentionally vague, because if someone comes up with a new invention, we don't want to deny a patent simply because it's not in a category that Congress already thought of. The other statutes - 35 USC 102, 103, and 112 - are the ones that are supposed to be the higher bars of novelty, nonobviousness, and enablement. 35 USC 101 is supposed to be such a low bar as to not block almost anything... except the aforementioned thoughtcrimes and natural laws.
> You can patent a new method for ranking relevant web pages in search results.
Well, no. That's only the patent office's point of view. We don't know what the Supreme Court thinks about this, and that's what this case is going to decide.
No, but we can see pretty well which way they're leaning, based on Bilski and other cases. We can also tell which way Congress is leaning, based on the fact that when they passed the AIA, post-Bilski, they didn't add an exemption for patenting software-implemented methods. And that fact will also further be a clue to the Supreme Court as to what Congress intended to be patentable.
But what if you consent one evening, but the next morning decide you didn't consent? That was the situation at issue here
No, it wasn't... They had sex the previous day. He then wanted to have sex without a condom, and she said no. That was the withdrawal of any further consent. She then went to sleep. She woke up with him inside her. That was the rape. There was never any "deciding she didn't consent to something that happened the night before".
but it's mostly moot since the woman involved has dropped the charges. That just leaves the rest of us in the rape discussion spinning the wheels endlessly.
The woman who had the sex with him dropped out the accusation man. She voluntarily let him in her bedroom and had voluntary sex with him before. She just wasn't 'in the mood' one of the times he did sex with her. That is a crime in Sweden? Good thing I don't live there.
Yeah, it's entirely possible for someone to consent to sex one night and then not consent to sex the next morning. See, people have the right to say no, whether it's because they're not "in the mood", because they're sleepy, because they're sick, or any other reason. And forcing yourself on someone who has said no is rape, even if you've previously had consensual sex with them in other circumstances. And that's not only a crime in Sweden, but in most other countries.
Yeah, but he wasn't asking for the statuatory damages. He was asking for compensation for the photo plus a job (or at least his name plastered all over their site and being named their official photographer for life). If he is going to sue them for damages, they sure as hell aren't going to name him their official sponsor and plaster their name over their site--they are going to never mention his name, never buy an image from him, and make sure to remove all reference to his photos from their site.
His demands were pretty unreasonable (but he's just a college student who probably doesn't realize that).
So, he can collect $150k per work in statutory damages after a court case, or CR can cut a cheque for a bunch less and correct their lack of license. That seems like a pretty reasonable beginning of negotiations. Now if this was negotiations before they had used the images improperly, asking for $100k + other stuff would probably be over the top and unlikely to be very effective.
Statutory damages are unavailable unless you have registered your copyright within 3 months of first publication or within 1 month of learning of infringement. It is unlikely he did this, and as a result, he can only collect actual damages.
Exactly, it's time for him to countersue for copyright infringement. His photos are being used in many places without permission or attribution. Time to pull a page out of the ol' RIAA playbook and sue for maximum damage per instance of infringement. Unfortunately, I doubt he can afford the legal case that would take.
Statutory damages are unavailable unless you have registered your copyright within 3 months of first publication or within 1 month of learning of infringement. It is unlikely he did this, and as a result, he can only collect actual damages, which may be on the order of a few hundred dollars or a thousand. He also cannot collect attorney's fees. As a result, no lawyer would take this case on contingency, and unless he wants to pay $100k to get $1-2k, he should be looking to settle, not countersue.
If he didn't register the image with the patent and trademark office before it was used (and lets face it most photographers don't, and pretty much every event photographer doesn't), then the maximum he can hope for is actual damages.
He could have registered the copyright formally, any time in the past year or so after shooting the photos, after he found that he was going to need to enforce the legally protected exclusive rights.
Nope, statutory damages are unavailable unless you have registered your copyright within 3 months of first publication or within 1 month of learning of infringement. If he waited longer than that, then he can't collect statutory damages.
If he didn't register the image with the patent and trademark office before it was used (and lets face it most photographers don't, and pretty much every event photographer doesn't), then the maximum he can hope for is actual damages.
You're absolutely correct, with one caveat - copyright is registered with the US Copyright Office. The Patent and Trademark Office only covers [drumroll] patents and trademarks. The Copyright Office is part of the Library of Congress.
If you are using someone's "something" worth $2-3k without permission, then you're in a pretty piss-poor bargaining position and $100k night actually be not such a bad price to pay. The statutory damages for copyright infringement can be pretty steep:
"Plaintiffs who can show willful infringement may be entitled to damages up to $150,000 per work."
However, statutory damages are unavailable unless you have registered your copyright within 3 months of first publication or within 1 month of learning of infringement. It is unlikely he did this, and as a result, he can only collect actual damages, which may be closer to the range of a few hundred or a couple thousand, based on what similar license agreements go for. Possibly even less, if the Color Run folks can show that there was no market for his photos to anyone else.
Sweden can't make any such promise because Extradition is a court matter
Repeating Big Lies you've been told doesn't make them true.
"It is simply untrue that it is Swedish courts, rather than the Swedish government, who are the final decision-makers in extradition requests. It is equally untrue that the Swedish government has no final decision-making power regarding extradition requests that are legally sanctioned by the Swedish judiciary. These are not matters for reasonable debate. The law is clear."
Why should they make promises to a suspect of a crime?
Why are you concern trolling?
In what possible way is this concern trolling? Concern trolling is when you pretend to have a group's interests at heart, but then recommend that some beneficial action shouldn't be taken out of "concern" for some imagined and unlikely consequence: e.g. "abortion really should be legal in all cases, but because no medical procedure is 100% safe, we have to ban it in all cases to protect women."
Pointing out that cops never make promises to suspects, nor are they ever required to? No.
Sweden uses pretrial detention and holding suspects incommunicado to such an extent that it was heavily criticized by the UN Committee Against Torture. Because Sweden has a penchant for handing people over to the U.S. who are then sent overseas to be tortured.
Even if true (and frankly, the "they have a penchant for something" is such a weaselly statement that you could never show it was true), that still doesn't address why you think Sweden would make promises to Assange. In fact, if all of that was true, then you're arguing that Sweden is such an evil country that they'd never make the promises you're claiming they should make. In which case, their refusal to make those promises certainly doesn't mean they're lying, as the GP suggested.
Because, if this is about rape allegations, there is no excuse whatsoever for limiting it to rape allegations and promising not to hand Assange over to the U.S.
Except for the fact that (i) they have no power to make that promise, as I pointed out in my other reply to you; and (ii) as you noted above, Sweden never would make that promise, under any circumstances. Therefore, their refusal to make that promise doesn't somehow make this not about rape allegations.
He's a suspect in a crime... Since when do suspects get to set conditions for interviews?
Since he asked for and was given permission to leave Sweden in the first place? Since Sweden has a medival Star Chamber judicial system, where suspects can be thrown in solitary confinement without contact with the outside world?
(i) Doesn't that make it even less likely that Sweden would let him set conditions on his interview, then? You seem to be arguing against yourself here.
(ii) Suspects can be thrown in solitary confinement in the U.S. too. In both cases, it's for a limited period of time, and then the suspect must be released or charges must be brought and the suspect allowed to contact a lawyer. That's not to say that America has a perfect justice system, but I don't think anyone would call it a "medieval Star Chamber". Not anyone who isn't trying to push an entirely unrelated agenda, that is.
Here is where Sweden is full of it, as are it's defenders. If this is really about rape allegations, then promise Assange he will be questioned on said rape allegations and not handed over to the United States. You are defending an indefensible position.
I'm sure they will absolutely promise Assange that he will be questioned on the rape allegations. It's kinda the whole point of the interview, y'know. I doubt they want to ask him what his favorite flavor of ice cream is.
As for the other, how can they possibly promise that? First, they have no power to do so - extradition is a judicial matter, and the police can't force the courts to do something. Second, why should they make any promises to a suspect? When has a suspect ever been allowed to force the police to make promises about handing them over to another jurisdiction as a condition of being questioned? Do you have any instance where someone else has gotten the things you're demanding for Assange?
You're asking for something that is (i) legally impossible, and (ii) special treatment beyond that given to anyone else, ever. For both reasons, independently, yours is an indefensible position.
He's a suspect in a crime... Since when do suspects get to set conditions for interviews?
Since the moment he left their jurisdiction and entered the protection of another sovereign country.
Sure, they can choose not to negotiate, but that doesn't really mean that he has to capitulate...
And if they choose not to negotiate, it doesn't mean that they're lying. It simply means that they refuse to negotiate with a suspect of a crime, even if they can't force him to come back to Sweden.
Besides, this is all moot given the fact that Assange has offered to return to Sweden if the government promises not to then hand him over to the U.S., but Swedish authorities refuse to do so.
Which tells anyone with a function brain that there's a motivation here that has nothing to do with rape allegations.
Why should they make promises to a suspect of a crime? When is this a requirement anywhere else, or for any other suspected rapist? And why does that make you assume there's a motivation that has nothing to do with rape allegations, rather than say, a motivation to not make promises that they aren't required to make?
Except, unlike anywhere else in the first world, you do not have the right to have an attorney present while being interrogated by police or prosecutors.
Got a citation? Because this site seems to say the opposite:
Who will be present at the questioning?
You will be questioned by the police. One or more police officers may carry out the questioning. The prosecutor will not normally be present at the questioning. If you are suspected of a crime for which you are entitled to have a lawyer, you can request that a lawyer is appointed for you and is present at the questioning.
Can I see a lawyer?
If you are arrested, you have the right to ask for a public defence counsel to be appointed for you. This will be done by the district court at the request of the prosecutor.
Slashdot Mirror
First things first: let's agree that all software is a subset of mental processes, and thus equivalent to other excluded categories for the purposes of 101.
With the stipulation that we're talking about software per se, yes.
Given that, most of what is considered to be software patents has hardware involvement that would be accurately classed as a post-solution activity. Your examples of a electronic device, processor, and electronic device are no different than Flook's alarm.
I believe you're misreading Flook, particularly in light of later developments. Look at Flook's claim - it would likely fail 101 under Bilski's test, which I think would apply better.
More importantly, while Flook's "adjusting an alarm limit" is actually post-solution activity, the hypothetical cancer-diagnosis claim we're discussing has the machine tied into every step of the process. Flook's claim was mental step, mental step, mental step, adjust an alarm (which, honestly, is almost a mental step too). Our claim is machine process, machine process, machine process, output. Very different. To read Flook the way you are is to basically say that any use of a machine is "post-solution activity", regardless of what the machine is: say, for example, you have a new process for forging steel. You could read that as "determining how to forge steel" and then "forging it" in order to wave away any specifics. And that's what you do:
In fact, if we consider a human an electronic device, the brain a processor, and one's mind's eye as a display, your patent works pretty well as a mental process without modification.
That's fine - we don't consider a human "an electronic device", the brain "a processor", and the mind "a display". Now, if you have a specification that redefines those terms as they're understood by one of ordinary skill in the computing arts to include a human, then sure, but we don't. This goes back to what I was saying earlier: you're essentially rewriting the claim to remove any machine elements and then say that the resulting claim, stripped of patent eligibility, is magically ineligible. Well, sure, but that's not the claim at issue. Redefining the machine terms to include a human, when they wouldn't otherwise, is simply the same process.
Claims must be read as a whole, interpreting every element as understood by one of ordinary skill in the art, unless explicitly redefined. Rewriting claims or redefining terms in an effort to prove that something is merely a mental process is to ignore those explicit mandates.
Yes, but anything that can be done by a computer could be done by someone's mind. Even interacting with other hardware could theoretically be done, but the hardware you mentioned would easily fit the scope of a mere post-solution activity.
... I feel like we're going around in circles. I keep saying "look at the claim, it recites hardware, therefore while a similar method can be done in the mind, the claimed invention cannot," and you keep saying, "ignore the claim language, remove every reference to hardware, rewrite it to strike out any element that undercuts my argument, and the result can be done in the mind."
I agree with you that if you completely rewrite the claim to be a pure algorithm, deleting everything that would make it patent eligible, you have a non-patent eligible claim. But I disagree that that's reasonable, and precedent seems to be on my side, since a claim must be read "as a whole" (Diehr).
Neither is yours.
On the contrary - there didn't used to be a patent system, and innovation was very slow; then patents were created, and innovation accelerated. Or, look at countries, including first world countries such as Switzerland, that didn't implement patent systems for decades while others, such as America, had them. Or, look at countries that didn't have patent systems a few decades ago, such as Vietnam and South Korea, and look at how they're doing now.
Now, of course, you'll say, "but they had wars! That's different!" but that doesn't address Switzerland, which is why I threw that in as an example.
Additionally, you can look even to the computer industry - the pace of innovation in hardware and software is hugely accelerating compared to the 1970s, before software was patented. It took almost 10 years to move past 8-bit architecture in home computers. In that time we've gone from the first very simple Blackberries to heads-up displays that get people attacked in bars, with context-sensitive suggestions of search results, pretty accurate voice recognition, stereoscopic head tracking gaming, etc. Anti-software patent people keep claiming that the industry is stagnating... Since when, I ask?
In fact there's a fair amount of evidence that the patent system inherently slows progress, versus only a common-sense theory that it has a benefit. And as we all know common sense is often wrong in the face of complex systems. If there's any doubt about the question, shouldn't we be erring on the side of the immediate social good?
On the contrary, the economics of trade secrets have been heavily studied, and there really is no doubt that destroying them is a social good. That leaves you two options - encourage people to voluntarily destroy them via patents, or seize them via Marxism.
> Narrowing what the Federal Circuit thinks is patentable, yes. Narrowing what the Supreme Court thinks is patentable, no.
The Supreme Court rarely narrows what it thinks. They look for ways to judge each case in a way that (they can claim) is consistent with prior rulings.
The Supreme Court had never ruled on the subject matter of Mayo or Myriad before. Until they rule on something, the patents are "valid" if the PTO grants them and if the courts uphold them. In those two cases, the Supreme Court's ruling means the PTO has to stop granting a certain category of patents, and the lower courts have to stop upholding them against product developers. That means patentable subject matter got narrowed.
Yes, that's what I said. And in Bilski, patentable subject matter got broadened, when the Supreme Court said that the MoT test wasn't the sole test, and something could fail that standard but still be patent eligible.
>But that impenetrable fortress shouldn't be expanded outward either.
Not saying that it is, but why not? The whole point of patents, as explicitly stated in the Constitution, is "to promote science and the useful arts". If expanding the fortress is a net benefit to that end then it would seem trivially obvious that that is a desirable direction to move.
Yes, and if turning lead into gold is possible, then it would seem trivially obvious that that is a desirable task to engage in. Your premise, however, is not yet proven.
Tell Zynga's targe- er, competitors about how copyright is enough to protect software and patents are unnecessary.
You can't use a current example to prove patents are necessary, of course they are now, in this brave new world of IP protection mania. Once you introduce the idea and reality of software patents, they become essential for both defensive and offensive corporate strategy.
Except, you'll note, that I was referring to instances where patents weren't used. For example, NimbleBit's Tiny Tower was covered by copyright, which didn't do anything to protect them when Zynga came along and released Dream Heights.
The only way your argument - that patents were necessary to NimbleBit, say, only because software patents existed - works is if prior to software patents, copyright protection was stronger and would have helped. But it wasn't and never has been, even in the pre-software patent era.
But they're still an abomination, and contribute nothing of value to anyone who isn't a lawyer.
They also allow inventors to monetize their inventions, and they encourage companies to destroy trade secrets, contributing a lot to the public domain. In fact, that latter one is the real point of patents, and the first patent didn't even have any lawyers involved... except in as much as members of the government had legal backgrounds.
Remember, patents only last 20 years. Trade secrets can theoretically last forever.
Your example is almost identical to Parker v. Flook. The requirement for hardware is not an excuse because we need our brains to think.
I'm not sure how that addresses anything I said. The fact that we need our brains to think doesn't mean that you can rewrite a patent claim to remove all of those pesky bits that we don't actually do, in order to argue that the claim covers things it wouldn't otherwise cover.
As for 101, it is supposed to be a low bar, but there's supposed to be an impenetrable fortress around those exceptions.
But that impenetrable fortress shouldn't be expanded outward either.
Creation museum: customers tend to be poor, relatively uneducated, and don't understand basic science. Whole Foods: customers are almost exclusively well-off, expensively educated, and don't understand basic science.
Everyone's stupid about something.
Creation museum: customers tend to believe in everything the museum present.
Whole Foods: 95% of customers don't even set foot in the homeopathy aisle, and are just there because they have fresher and better looking produce, locally-farmed meat, wild caught fish, fancy cheeses, etc.
I guess the article writer is stupid about believing that the 5% in the homeopathy aisle represent the majority.
> we can see pretty well which way they're leaning, based on Bilski and other cases.
If you check, you'll find that the last three subject matter cases taken by the Supreme Court have resulted in *narrowing* what is patentable.
Narrowing what the Federal Circuit thinks is patentable, yes. Narrowing what the Supreme Court thinks is patentable, no.
The Mayo and Myriad cases narrowed subject matter very explicitly, and while I originally read Bilski was neutral, it did actually cause the CAFC to start rejecting certain types of previously-accepted patents, and Bilski is also the reason we're seeing this case today.
Bilski was not neutral at all, but rather broadened patentability by rejecting the strict Machine-or-Transformation test and saying that it was merely an important clue: something could neither be transformative nor tied to a specific machine, but still nonetheless pass muster under 35 USC 101. That's broader than what the Federal Circuit was applying pre-Bilski.
I think a better example of how unnecessary software patents are is to look at the period known sometimes referred to as "the PC Revolution". Virtually all the software written in the early days of personal computing (Apple II, IBM PC, TRS-80, etc...) was not patented, in fact it was believed by most programmers at the time that software just wasn't patentable. And yet that period saw unfettered innovation in software, I will cite the invention of the spreadsheet as just one example. Nobody in the industry worried about patents, everybody made money, and innovation soared. What better proof is there that software patents are not only not needed, but in practice actually suppress innovation?
Tell Zynga's targe- er, competitors about how copyright is enough to protect software and patents are unnecessary.
Throwing a computer into an otherwise patentable process won't make it unpatentable, see Diamond v. Diehr. The concern is whether something that has no substantial steps outside of a computer can be patentable. I would say that the answer is no, since software could theoretically 'run' on any Turing Complete machine (ignoring the infinite memory stuff), and the human mind can operate in that way. Operations of the human mind are mental processes, and have been explicitly ruled not patentable.
But remember, the question there isn't whether the software could be done in the mind, but whether the claimed invention could be done in the mind. For example, and ignoring the obvious issue about obviousness, let's say I have a claim of:
1. A method for diagnosing cancer, comprising:
receiving an identification of a PSA count for a patient;
comparing the received identification of a PSA count to a threshold; and
diagnosing the patient as having cancer, responsive to the PSA count exceeding the threshold.
If I tell you that a patient has a PSA count of 100units/other unit (forgive me, I'm not a biologist) and that the threshold is 50 units/other unit, you can diagnose that patient as having cancer, right? And even just reading that sentence, you would technically have infringed that patent, because it only requires mental steps.
However, say instead that the claim was:
1. A method for diagnosing cancer, comprising:
receiving, by a comparator executed by a processor of an electronic device, an identification of a PSA count for a patient;
comparing, by the comparator, the received identification of a PSA count to a threshold; and
outputting to a display of the electronic device, by the processor, an identification of the patient as having cancer, responsive to the comparator determining that the PSA count exceeds the threshold.
You can't do that in your mind, by definition. You can do something very similar, but you couldn't possibly infringe that patent without using a computer - doing it purely with mental steps would be public domain.
So, the fact that any software could theoretically run on a Turing Complete machine or be done in the human mind is irrelevant, because you have to look at the claims - could they be done in the human mind. If they require hardware, then no.
And before you (understandably) claim that this is mere form over function, it is, and it isn't. The important point and the reason why there's the whole "law of nature, mathematical algorithm, natural phenomena" exemption is because we don't want to make a case where people can't not infringe. For example, if I discover gravity and get a patent claim on it, can I force you pay royalties for falling? And if you refuse, can I get an injunction that requires you to not fall?
Or, if I have that mental step diagnosis patent above, can I force you to pay royalties for reading that example sentence, or get an injunction to stop you from thinking about that example? Clearly not. We don't want to make thought crimes. So, that's why those exemptions are important...
But they're also supposed to be very narrow exemptions. This is 35 USC 101, the very first test for whether something is directed to patent eligible subject matter, which is supposed to cover "everything under the sun that is made by man" - i.e. any new and useful process, machine, article of manufacture, composition of matter, or improvement thereof. It's intentionally vague, because if someone comes up with a new invention, we don't want to deny a patent simply because it's not in a category that Congress already thought of. The other statutes - 35 USC 102, 103, and 112 - are the ones that are supposed to be the higher bars of novelty, nonobviousness, and enablement. 35 USC 101 is supposed to be such a low bar as to not block almost anything... except the aforementioned thoughtcrimes and natural laws.
> You can patent a new method for ranking relevant web pages in search results.
Well, no. That's only the patent office's point of view. We don't know what the Supreme Court thinks about this, and that's what this case is going to decide.
No, but we can see pretty well which way they're leaning, based on Bilski and other cases. We can also tell which way Congress is leaning, based on the fact that when they passed the AIA, post-Bilski, they didn't add an exemption for patenting software-implemented methods. And that fact will also further be a clue to the Supreme Court as to what Congress intended to be patentable.
But what if you consent one evening, but the next morning decide you didn't consent? That was the situation at issue here
No, it wasn't... They had sex the previous day. He then wanted to have sex without a condom, and she said no. That was the withdrawal of any further consent. She then went to sleep. She woke up with him inside her. That was the rape. There was never any "deciding she didn't consent to something that happened the night before".
but it's mostly moot since the woman involved has dropped the charges. That just leaves the rest of us in the rape discussion spinning the wheels endlessly.
[Citation]? I haven't heard anything about that.
The woman who had the sex with him dropped out the accusation man. She voluntarily let him in her bedroom and had voluntary sex with him before. She just wasn't 'in the mood' one of the times he did sex with her. That is a crime in Sweden? Good thing I don't live there.
Yeah, it's entirely possible for someone to consent to sex one night and then not consent to sex the next morning. See, people have the right to say no, whether it's because they're not "in the mood", because they're sleepy, because they're sick, or any other reason. And forcing yourself on someone who has said no is rape, even if you've previously had consensual sex with them in other circumstances. And that's not only a crime in Sweden, but in most other countries.
Yeah, but he wasn't asking for the statuatory damages. He was asking for compensation for the photo plus a job (or at least his name plastered all over their site and being named their official photographer for life). If he is going to sue them for damages, they sure as hell aren't going to name him their official sponsor and plaster their name over their site--they are going to never mention his name, never buy an image from him, and make sure to remove all reference to his photos from their site.
His demands were pretty unreasonable (but he's just a college student who probably doesn't realize that).
So, he can collect $150k per work in statutory damages after a court case, or CR can cut a cheque for a bunch less and correct their lack of license. That seems like a pretty reasonable beginning of negotiations. Now if this was negotiations before they had used the images improperly, asking for $100k + other stuff would probably be over the top and unlikely to be very effective.
Statutory damages are unavailable unless you have registered your copyright within 3 months of first publication or within 1 month of learning of infringement. It is unlikely he did this, and as a result, he can only collect actual damages.
Exactly, it's time for him to countersue for copyright infringement. His photos are being used in many places without permission or attribution. Time to pull a page out of the ol' RIAA playbook and sue for maximum damage per instance of infringement. Unfortunately, I doubt he can afford the legal case that would take.
Statutory damages are unavailable unless you have registered your copyright within 3 months of first publication or within 1 month of learning of infringement. It is unlikely he did this, and as a result, he can only collect actual damages, which may be on the order of a few hundred dollars or a thousand. He also cannot collect attorney's fees. As a result, no lawyer would take this case on contingency, and unless he wants to pay $100k to get $1-2k, he should be looking to settle, not countersue.
If he didn't register the image with the patent and trademark office before it was used (and lets face it most photographers don't, and pretty much every event photographer doesn't), then the maximum he can hope for is actual damages.
He could have registered the copyright formally, any time in the past year or so after shooting the photos, after he found that he was going to need to enforce the legally protected exclusive rights.
Nope, statutory damages are unavailable unless you have registered your copyright within 3 months of first publication or within 1 month of learning of infringement. If he waited longer than that, then he can't collect statutory damages.
If he didn't register the image with the patent and trademark office before it was used (and lets face it most photographers don't, and pretty much every event photographer doesn't), then the maximum he can hope for is actual damages.
You're absolutely correct, with one caveat - copyright is registered with the US Copyright Office. The Patent and Trademark Office only covers [drumroll] patents and trademarks. The Copyright Office is part of the Library of Congress.
Can you make reasonable attempts to settle a case when someone asks $100k for something worth $2-3k and then threatens legal action?
If you are using someone's "something" worth $2-3k without permission, then you're in a pretty piss-poor bargaining position and $100k night actually be not such a bad price to pay. The statutory damages for copyright infringement can be pretty steep:
https://en.wikipedia.org/wiki/...
"Plaintiffs who can show willful infringement may be entitled to damages up to $150,000 per work."
However, statutory damages are unavailable unless you have registered your copyright within 3 months of first publication or within 1 month of learning of infringement. It is unlikely he did this, and as a result, he can only collect actual damages, which may be closer to the range of a few hundred or a couple thousand, based on what similar license agreements go for. Possibly even less, if the Color Run folks can show that there was no market for his photos to anyone else.
Repeating Big Lies you've been told doesn't make them true.
"It is simply untrue that it is Swedish courts, rather than the Swedish government, who are the final decision-makers in extradition requests. It is equally untrue that the Swedish government has no final decision-making power regarding extradition requests that are legally sanctioned by the Swedish judiciary. These are not matters for reasonable debate. The law is clear."
I would be cautious to hang your argument on Greenwald's table pounding, considering that his support for that conclusion has been debunked by the very author he cites.
Why are you concern trolling?
In what possible way is this concern trolling? Concern trolling is when you pretend to have a group's interests at heart, but then recommend that some beneficial action shouldn't be taken out of "concern" for some imagined and unlikely consequence: e.g. "abortion really should be legal in all cases, but because no medical procedure is 100% safe, we have to ban it in all cases to protect women."
Pointing out that cops never make promises to suspects, nor are they ever required to? No.
Sweden uses pretrial detention and holding suspects incommunicado to such an extent that it was heavily criticized by the UN Committee Against Torture. Because Sweden has a penchant for handing people over to the U.S. who are then sent overseas to be tortured.
Even if true (and frankly, the "they have a penchant for something" is such a weaselly statement that you could never show it was true), that still doesn't address why you think Sweden would make promises to Assange. In fact, if all of that was true, then you're arguing that Sweden is such an evil country that they'd never make the promises you're claiming they should make. In which case, their refusal to make those promises certainly doesn't mean they're lying, as the GP suggested.
Because, if this is about rape allegations, there is no excuse whatsoever for limiting it to rape allegations and promising not to hand Assange over to the U.S.
Except for the fact that (i) they have no power to make that promise, as I pointed out in my other reply to you; and (ii) as you noted above, Sweden never would make that promise, under any circumstances. Therefore, their refusal to make that promise doesn't somehow make this not about rape allegations.
Since he asked for and was given permission to leave Sweden in the first place? Since Sweden has a medival Star Chamber judicial system, where suspects can be thrown in solitary confinement without contact with the outside world?
(i) Doesn't that make it even less likely that Sweden would let him set conditions on his interview, then? You seem to be arguing against yourself here.
(ii) Suspects can be thrown in solitary confinement in the U.S. too. In both cases, it's for a limited period of time, and then the suspect must be released or charges must be brought and the suspect allowed to contact a lawyer. That's not to say that America has a perfect justice system, but I don't think anyone would call it a "medieval Star Chamber". Not anyone who isn't trying to push an entirely unrelated agenda, that is.
Here is where Sweden is full of it, as are it's defenders. If this is really about rape allegations, then promise Assange he will be questioned on said rape allegations and not handed over to the United States. You are defending an indefensible position.
I'm sure they will absolutely promise Assange that he will be questioned on the rape allegations. It's kinda the whole point of the interview, y'know. I doubt they want to ask him what his favorite flavor of ice cream is.
As for the other, how can they possibly promise that? First, they have no power to do so - extradition is a judicial matter, and the police can't force the courts to do something. Second, why should they make any promises to a suspect? When has a suspect ever been allowed to force the police to make promises about handing them over to another jurisdiction as a condition of being questioned? Do you have any instance where someone else has gotten the things you're demanding for Assange?
You're asking for something that is (i) legally impossible, and (ii) special treatment beyond that given to anyone else, ever. For both reasons, independently, yours is an indefensible position.
He's a suspect in a crime... Since when do suspects get to set conditions for interviews?
Since the moment he left their jurisdiction and entered the protection of another sovereign country.
Sure, they can choose not to negotiate, but that doesn't really mean that he has to capitulate...
And if they choose not to negotiate, it doesn't mean that they're lying. It simply means that they refuse to negotiate with a suspect of a crime, even if they can't force him to come back to Sweden.
Besides, this is all moot given the fact that Assange has offered to return to Sweden if the government promises not to then hand him over to the U.S., but Swedish authorities refuse to do so.
Which tells anyone with a function brain that there's a motivation here that has nothing to do with rape allegations.
Why should they make promises to a suspect of a crime? When is this a requirement anywhere else, or for any other suspected rapist? And why does that make you assume there's a motivation that has nothing to do with rape allegations, rather than say, a motivation to not make promises that they aren't required to make?
Except, unlike anywhere else in the first world, you do not have the right to have an attorney present while being interrogated by police or prosecutors.
Got a citation? Because this site seems to say the opposite:
Who will be present at the questioning?
You will be questioned by the police. One or more police officers may carry out the questioning. The prosecutor will not normally be present at the questioning. If you are suspected of a crime for which you are entitled to have a lawyer, you can request that a lawyer is appointed for you and is present at the questioning.
Can I see a lawyer?
If you are arrested, you have the right to ask for a public defence counsel to be appointed for you. This will be done by the district court at the request of the prosecutor.