This particular judge disallowed Samsung from showing the jury its prior art (phones that it had in the design pipeline before the iPhone was announced) because the Samsung lawyers missed a filing deadline. She let the letter of the law (a filing deadline) override the intent of the law (to get to the truth of the matter).
A deadline that Samsung knew about 6 months in advance, with designs that, as you note, Samsung knew about for years. It's not like they suddenly found these designs - they sat on them in secret and did not put them in their evidence lists, so that Apple and it's expert witnesses couldn't prepare. Contrary to Hollywood's presentation of the legal system, you don't actually get to call in surprise witnesses or bring up new evidence on the eve of trial. And preventing wins through trickery and last-minute maneuvers is both the letter and the intent of the law.
Samsung's patents may be FRAND but that doesn't mean that people should be able to use them without paying a fair or reasonable amount. Apple used them and refused to negotiate. Just what the fuck are Samsung meant to do in that circumstance? Ignore the patent?
File a lawsuit, go to court, get a judgement, and collect phat loot in damages, same as every other FRAND patent owner? What they can't do is do an end-run around the courts and go to the ITC seeking an injunction only. The ITC can't award damages, only injunctions, and damages are the only possible award for violation of a FRAND patent, by definition. There is no corruption here, just logic.
Way to miss the point. Without having made the thing, I didn't have an 'invention' worthy of patent. Far from complaining that 'somebody else stole my glory', I'm saying there was no glory to steal. Everyday pipe dreams are not inventions - though I guess our patent system can be manipulated to treat them as if they were.
It's not that I missed the point, it's that you're moving the goalposts. Originally, you said you had an idea, but sat on it and did nothing. Now, you've changed that to say that you didn't even have the idea. Uh, okay, but now your entire post is irrelevant. See, we're talking about people who did invent things and either published or sat on it, and what society owes them in exchange, not people who didn't invent anything and are now angry and bitter about those who did. Thanks, though, and have a nice day.
If you don't make a product using your patent, you really shouldn't have the right to tell others not to. To have an idea is one thing, but to actually bring it to market is something else entirely. To have an idea that could enhance the lives of everyone but do nothing but sit on it is counterproductive to the advancement of society as a whole.
What about if you're not sitting on it, but actively trying to market to the people who can bring it to market? Say I, a home inventor, come up with a new way to drastically increase the efficiency and safety of nuclear energy plants - I'm sure as heck not going to get clearance from the government to start building nuclear generators in my garage. Should I not be allowed to try to license that idea to energy companies? And if I'm not allowed to do so, then why would I waste time writing it up in the first place? In fact, by preventing me from licensing it, aren't you taking away any incentive to do anything other than "sit on it", and isn't your proposal "counterproductive to the advancement of society as a whole"?
I thought of the 'dual flush' toilet years before they appeared on the scene - but never bothered to build one (nor did I know how). Does that mean I deserve royalties from the other people who also thought of it and actually built them.
No, because rather than publishing your idea, you sat on it and did nothing until someone else came up with the idea. Why should society give you anything, when you've been keeping secrets?
Patents are not an award - you don't "deserve" royalties simply because you thought of something. Patents are a payment made in exchange for destroying a trade secret - in exchange for publishing your idea and telling everyone how to do it, society pays you a grant of a temporary monopoly. But if you don't pay your share, then society owes you nothing, sir. Good day!
But my key argument is that the entire patent and copyright system is almost entirely structured to benefit a very few. It also seems that the damage is far worse than the good it provides. But eliminating the patent system would be bad in that there are many cases where long hard risky efforts need to be rewarded. But stuff that you can conjure up in a 15 minute brainstorming session should not.
But that's the point of the patent system - it's not a reward for hard work, it's a payment in exchange for public disclosure. Look at it this way - say you make a revolutionary new invention, which, absent your invention, no one might come up with for another hundred years. We're talking about a super rare idea. You're going to tell everyone about it, and you'll probably win a Nobel prize and some other awards. We don't need to give you a patent too, because the public gets nothing out of it.
But, on the other hand, say you come up with something that only takes you a day of hard work, and others might also come up with in a similar amount of work. If you keep it secret (which you might do, because it's such a "minor" idea), then everyone else has to re-invent it. So, if you've got an industry with a thousand competitors, that's 1000 engineers independently recreating the same invention, wasting 999 days of effort. But if you publish your invention, then the others can learn from it, and go on to spend their 999 days working on the next 999 inventions.
Patents give you an incentive to publish your idea, and take away the disincentive by replacing your trade secret rights with another exclusive right. The public benefits, because by having you publish your idea, we don't have to waste time and money reinventing it.
All you have to do is say in 1980, "I think these mobile phones might have a future" then run out and patent that use of the generator in mobile phones. This is not good because A parasitically gaining while not contributing to the greater good, and two you are actually harming the person who did by intercepting money that might have gone to the real inventor.
Considering that someone else invented the generator and another someone else invented the mobile phones, then you can't get that patent. If A is known and B is known, then A+B is obvious by definition, unless there's some reason why A and B can't be combined.
he then went about writing stories around robots that never failed to obey their programming, but as effectively sentient thinking beings, would interpret their programming in ways the society around them couldn't anticipate... he NEVER said the laws... were insufficient.
Perhaps we have a different definition of "sufficient", then. If idea was to proscribe undesirable behavior, then the laws were insufficient, by definition.
But, as you note, that was the point - it's not that the laws are invalid, but that they don't even begin to address the various interpretations possible due to their ambiguity.
It's trademark, intellectual property, that allows you to tell the difference between Coke, Pepsi, and RC cola.
No, it is not.
It is my nose and taste buds that tell me the difference.
Lipstick(trademark) on a pig doesn' change the fact your still dealing with a pig.
Yes it is. Because you can't taste every bottle of Cola before you buy it.
So that's why the store manager keeps chasing me out.
I have 3 problems with today's IP. Most IP is completely obvious; the one click patent is 100% crap.
Obviousness is a legal conclusion, like "guilty", and must be supported by evidence. You wouldn't throw someone in jail for murder because you have a gut feeling, would you?
There was a $10,000 bounty for prior art that would invalidate the one click patent. Since you think it's total crap, why didn't you show your art and collect that bounty? Why didn't anyone? Why was there a reexamination conducted for that patent, with all of the art that the EFF and Slashdot and others could throw at it, that still confirmed it as patentable? Because, contrary to what some would have you believe, it's not a patent on clicking once. It's a patent on a specific implementation of a workaround for a shopping cart model.
Any web developer with 3 months training would stumble upon that as completely obvious if they were building a large online sales site.
And yet, large online sales sites existed for many more than 3 months before Amazon, and no one did it. Reality seems to contradict your gut feelings and hindsight.
Things like patents and trademarks should be reserved for something innovative. Monster suing people for using monster as a synonym of big or great should be punished with their losing the trademark. There is definitely room for some patents and trademarks such as Xerox (completely made up). And inventing the transistor. But if someone invents a new way to generate light, nobody should be able to patent putting that into a flashlight.
So transistors are patentable but light emitting diodes are not? Do you have a specific list of patentable electronics components and non-patentable ones, or is this just another gut reaction thing?
But even in music and books there should be much shorter limit on the copyright. It just seems bizarre that someone who came up with an innovative guitar riff 60 years ago should be able to go after some indy band who "re-invented" the same riff and worked it into their song.
They can't. The indie band must have actually copied the earlier guitar riff. It's right there in the name "copyright". For example, remember the Men at Work copyright suit over "Land Down Under" with that flute riff? The copyright owners of "Kookaburra Lives in the Gumdrop Tree" had to show not only that the riff was identical, but that Men at Work had previously heard it. If, by some random happenstance, you sat down and wrote Larry Snotter and the Wizard's Stone, a story about a boy wizard who was raised by non-magical foster parents and who gets brought to a magic school by a message from a flying owl, and you had been living in a shack in the woods and had never heard of Harry Potter, you would not be liable for copyright infringement.
But yes, copyright probably shouldn't have the same term for direct copying as for derivative works and sampling.
According to the NSF, the Business Research and Development and Innovation Survey (BRDIS) “is an annual, nationally representative sample survey of approximately 43,000 companies, including companies in manufacturing and nonmanufacturing industries. The target population for BRDIS consists of all for-profit companies that have five or more employees and that perform R&D in the United States.”
From TFA:
If you examine the details, the survey results begin to make more sense. Larger companies tend to report intellectual property as being more important; businesses designated as especially “R&D active” also place more importance on various kinds of intellectual property.
The survey is not confined just to the target population, as it includes non-R&D active companies.
The problem with this logic is that the survey specifically targets businesses performing R&D. From TFA:
"The target population for BRDIS consists of all for-profit companies that have five or more employees and that perform R&D in the United States.”
Continuing in TFA:
If you examine the details, the survey results begin to make more sense. Larger companies tend to report intellectual property as being more important; businesses designated as especially “R&D active” also place more importance on various kinds of intellectual property.
And if you follow the link to the actual data tables in the report, you'll see that the various numbers pulled into the article - 96% say patents are not important, 54% in the "information" fields say copyright is not important, etc. - are all including the non-R&D active sets. If you do look at the target population that performs R&D, those numbers change, respectively, to 34% and 69% saying that they are important.
More telling, go to the data chart for new or improved products or processes by businesses who performed or did not perform R&D. For companies that did not perform any R&D, 88% did not create or improve any products or processes. Accordingly, it's pretty reasonable to consider that they wouldn't see much value in IP over that time. For companies that did perform R&D, 65% created new products or processes, and that starts getting a lot closer to the percentage saying that IP is important.
So, sure, depending on what numbers you cherry pick, you can "support" almost any conclusion, but you're not telling the entire story.
Because $16K over 12 years is chump change for most of the companies filing patents. Also they seem to have this paranoid notion that it is much better to keep around something that they might need than not have it and want it later.
Most of the companies filing patents are filing dozens, if not hundreds, each year. Over 12 years, you could easily end up with a portfolio of patents numbering in the thousands. For example, everyone's favorite patent troll company, Intellectual Ventures, has upwards of 80,000 patents, so for them, you're talking about maintenance fees of over a billion dollars over those 12 years, if they maintain all of them for the full term.
Actually, they refute your logical conclusion by showing that its based on a false premise. Additionally, unlike your numbers, mine are based in reality. You have no real numbers period.
We know what the numbers are with the current incentives. We don't know how much they would differ if those incentives were neutralized.
Begging the question. I disagree that they're even "incentives", and my actual numbers show that they do not appear to be, since if anything, the USPTO has a greater incentive to reject applications and collect fees for RCEs and appeals.
Additionally:
It's not unreasonable to draw suspicion on this practice, because the actual costs of maintenance are basically nothing. $7,500 for rubber stamping a continuation? That's quite fishy, and seems like it would be difficult to justify.
You apparently have no idea what you're talking about. Maintenance fees have nothing to do with continuation applications. You are combining two things because you've heard the words in connection with patents and assume they must be related, even though you have no real clue what they mean.
And I realize that you're going to wave your hands and claim it was a typo, but you do the same thing here:
An initial rejection means that they get a little bit more for an amendment.
Amendments aren't charged a fee unless you add claims without canceling other claims. The USPTO doesn't simply get more money by virtue of initially rejecting an application. You really are just tossing out statements with no idea whether they're correct or not.
Not at all. They have to at least pretend to do their job. Let's say that absent economic incentives, the allowance rate would be 5%. In that case, 49.2% is almost ten times the rate and the USPTO is incredibly broken. They can be doing a horrible job due to perverse incentives without being 100% cronies. It's the same thing with police departments and their perverse incentives. They have incentives to write bullshit tickets and seize everything that they can, but cops do spent a lot of their time doing things other than that.
However, let's say that absent economic incentives, the allowance rate would be 95%. Then clearly, 49.2% represents an incredibly stingy allowance rate, and the USPTO is incredibly biased against patents.
See? Unsourced numbers can be pulled from your ass to support any conclusion with equal credibility, whether it's my 95% or your 5%... "equal" credibility still being "zero" credibility. On the other hand, actual numbers, specifically the 49.2% allowance rate and the 87.2% initial rejection rate, refute your unsupported conclusion.
Being obsolete doesn't mean that the patent isn't useful. If you manage to dupe the USPTO into granting you are patent on a necessary piece (or one that has become so commonplace to be necessary for interoperability reasons), you can ambush most anybody in the field.
Yes, but the conclusion that the USPTO makes the majority of their fees post-grant relies on the premise that the majority of these patents have maintenance fees paid. And, as you note, that relies on a premise that a majority are "commonplace" that are used to "ambush" people. However, the premise is false.
You also don't seem to be understanding the criticism. The USPTO gets paid as much or more for accepting a patent than they do for rejecting it.
No, I understand the criticism. I'm merely pointing out that it's based on a false conclusion from an erroneous premise. In reality, not only are the majority of patents abandoned during their lifetime, before many of those maintenance fees are paid, the original argument disregarded all of the other fees paid to the USPTO, including fees for Requests for Continued Examination (which increase drastically after the first one), appeal fees, petition fees, etc., and those are all fees that are only paid when the USPTO rejects an application.
Now, what is the actual average cost to obtain a patent in fees to the USPTO vs. what is the actual average cost paid for issuance and maintenance? I don't know, and it would take a lot of data mining to find out (albeit from publicly available information), but I can tell you that if you start by ignoring the majority of the fees, your conclusion is based on fluff and dreams.
Furthermore, the evidence points to your conclusion being wrong. From here, the allowance rate is 49.2% including RCEs, or 68.5% not including them, depending on whether you consider an RCE to be a new application or not (for our purposes, discussing fees, it's somewhat irrelevant). If the USPTO had such great incentives to allow these cases, wouldn't that be 90% or higher?
In fact, to maximize their fees, wouldn't the USPTO want to allow all cases immediately? But instead (from the same page, scroll down), you find that 87.2% of applications are initially rejected. It's almost the opposite of the rubber stamp that your argument would suggest.
Huh, I didn't realize that. Looks like, for large companies at least (there are some discounts for individual inventors), the fees break down roughly like this:
Filing/search/examination fees: $1600
Issuance of an approved patent: $1780
Maintenance of an approved patent over its full lifespan: $12,600
So basically the USPTO gets $1600 if the patent is rejected, or $15,980 if it's approved.
... the latter of which are over the course of 12 years. Plus, that's only if the patent is maintained for its full term, and not many are, particularly in the computing industry. Why pay $16k in maintenance fees on a patent on a technology that's obsolete?
The problem isn't women in the community (they have been here all along...) its feminists. As with other niche communities, feminists have invaded the programming community, and then demanded that the community change its character and become a 'safe space'.
Actually, I think they just wanted people to stop mocking women and discriminating against them.
There's a difference between an unsolicited shipment and a solicited, but erroneous, shipment
In the USPS recommended actions, there is. In federal law, there is not. The legal definition of unordered merchandise is "merchandise mailed without the prior expressed request or consent of the recipient" (See USC 39 3009(d)). The people ordered some merchandise but what they received was something else that was mailed without prior expressed request or consent of the recipient.
True, at federal law, there isn't, because contracts for sale of goods are state law under the UCC, not the federal government. Under state law in every state, it's a solicited, but erroneous, shipment, and the seller has the opportunity to recover the incorrect goods at their expense and either cure by shipping the correct product or repudiate the sale and suffer penalties for breach.
Is this true even for interstate shipments? That seems unlikely.
Of course it does. You're getting confused because you hear about interstate commerce being regulated by the Federal government, and think that anything that travels interstate must solely be under Federal law... It's not true - there is, for example, no such thing as federal contract law. All contracts are governed under state law, including contracts that relate to interstate shipments. State law applies here.
In addition, even for intrastate I think there's a good argument that such a state law contradicts federal law, if the shipment was sent via the postal service (though most such shipments are sent via UPS or FedEx, which may be different).
Not at all. As many people in this thread have said, the federal law deals with unsolicited purchases. This is not an unsolicited purchase, it's a solicited purchase where the wrong goods got shipped.
Come on, think logically - the Federal government is going to write a law that screws large corporations when some warehouse monkey ships the wrong thing? The same Federal government that, whenever copyright or SOPA or PIPA or anything else is mentioned, we claim is bought and sold by large corporations?
Also, do you have a citation (in any state) for the law you're claiming obligates the recipient (or buyer, whatever) to return the incorrect goods?
Yes, it's in the UCC article 2-508, which has been implemented in some form in every state's laws.
I spent some time looking through Utah State Code, and it appears to me that upon receipt the buyer is fully justified in accepting the erroneous shipment and calling the transaction complete, if you choose to look at it as an error in the transaction, or in accepting the erroneous shipment as unrequested goods, and demanding that the original transaction be completed.
Nope, 2-508 is also in the Utah code. And if the buyer attempted to accept the shipment and demand that the original transaction be completed, then the buyer is admitting that goods are solicited, and would be liable for conversion.
Again, logically, come on... Mistakes happen in warehouses all the time. You really think that the government has written in statutes that explicitly screw corporations and give windfalls to individuals because of mistakes?
There's a difference between an unsolicited shipment and a solicited, but erroneous, shipment
In the USPS recommended actions, there is. In federal law, there is not. The legal definition of unordered merchandise is "merchandise mailed without the prior expressed request or consent of the recipient" (See USC 39 3009(d)). The people ordered some merchandise but what they received was something else that was mailed without prior expressed request or consent of the recipient.
True, at federal law, there isn't, because contracts for sale of goods are state law under the UCC, not the federal government. Under state law in every state, it's a solicited, but erroneous, shipment, and the seller has the opportunity to recover the incorrect goods at their expense and either cure by shipping the correct product or repudiate the sale and suffer penalties for breach.
IMO, returning the Vita is the moral and mannerly thing to do, and the company should pay for shipping and perhaps even compensate the recipient for their time to return it (maybe a free game or something). But per US law, the recipient has no obligation to return it.
Under US law, if the seller seasonably notifies the buyer (because, yes, we're talking about a seller and a buyer here, despite your attempt to shift the definition to a mere "recipient") that the goods were shipped in error and they intend to cure and recover the incorrect goods, and the seller refuses, then the seller is liable for damages for conversion under state law. Theoretically, depending on the value of the goods, there could also be state criminal charges. It has been this way for literally more than 250 years, because this stuff dates back to pre-US old common law.
~~~~~~~~
http://about.usps.com/publications/pub300a/pub300a_tech_021.htm
A company sends you a gift in the mail — a tie, a good luck charm, or a key chain. You didn’t order the gift. What do you do? Many people will feel guilty and pay for the gift. But you don’t have to. What you do with the merchandise is entirely up to you.
If you have not opened the package, mark it “Return to Sender.” The Postal Service will send it back at no charge to you.
If you open the package and don’t like what you find, throw it away.
If you open the package and like what you find, keep it — free. This is a rare instance where “finders, keepers” applies unconditionally.
Whatever you do, don’t pay for it — and don’t get conned if the sender follows up with a phone call or visit. By law, unsolicited merchandise is yours to keep.
~~~~~~~~~
Gift - something bestowed or acquired without being sought or earned by the receiver.
There's a difference between an unsolicited shipment and a solicited, but erroneous, shipment:
Q. What should I do if the unordered merchandise I received was the result of an honest shipping error?
A. Write the seller and offer to return the merchandise, provided the seller pays for postage and handling. Give the seller a specific and reasonable amount of time (say 30 days) to pick up the merchandise or arrange to have it returned at no expense to you. Tell the seller that you reserve the right to keep the merchandise or dispose of it after the specified time has passed.
Also:
Gifts don't have to be intentional
This is entirely incorrect. By definition, a gift must be intentional:
In order for a gift to be legally effective, the donor must have intended to give the gift to the donee (donative intent), and the gift must actually be delivered to and accepted by the donee.
I don't give a flying crap because this isn't about the law. It's about common decency. You would be cursing said law instead of citing it if the same thing had happened to you.
Not to mention the fact that you're right and the AC is wrong about the law. This isn't an unsolicited shipment, it's a solicited shipment with non-conforming goods that was seasonably repudiated by the seller, who now seeks to reclaim the incorrectly shipped goods and correct the defect. The law is pretty clear that the buyer doesn't get a windfall.
Is this so clear-cut? The law says it is: "merchandise mailed without the prior expressed request or consent of the recipient." It does not seem to differentiate mistakes. That is, none of these people ordered a Vita bundle--they ordered something different. Therefore the merchandise of a Vita bundle was mailed without prior request or consent. What was requested was a particular game.
Unless there is prior case law, I don't think anyone can really say whether the particular order (or an identical one taking place in the US) would qualify as "mailed without prior expressed request."
I'm referencing http://www.gpo.gov/fdsys/pkg/USCODE-2011-title39/html/USCODE-2011-title39-partIV-chap30-sec3009.htm which doesn't have any obligation to the recipient--and expressly says so: "Any merchandise mailed in violation of subsection (a) of this section, or within the exceptions contained therein, may be treated as a gift by the recipient, who shall have the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender"
Nothing in this code indicates that you can charge for storage should you return the item, either.
Is there a different law I'm unfamiliar with that you're referring to?
It's actually clear cut the other way. See, for example, this page (I know it's state rather than federal, but it was the first hit on Google and it's late):
If you receive unordered merchandise such as clothing or books in the mail, you may be surprised about your rights. Federal law prohibits a company or organization from mailing unordered merchandise to you and then demanding payment. It is legal to send unordered merchandise if it is clearly marked as a free sample or is mailed by a charitable organization asking for donations...
It is a different matter if the mailing you received was due to a mistake by the company. In these circumstances, Georgia law regarding “unjust enrichment” obligates you to return the item paid for by another customer. The company, however, will have to pay postage and handling or make arrangements to pick it up.
The same thing is in the UCC, which has been adopted in every state. In the case of a shipment that you ordered but which contains non-conforming goods, the seller can notify you of the error and provide the proper goods. They have to pay for return shipment and any storage fees you incurred, but you don't simply get to keep it.
Consider, from a cynical Slashdotter point of view - these commercial laws and the UCC were written to protect merchants and large companies... Do you think they'd really write in a provision that allows a honest mistake by a minimum wage mook in shipping to turn into a windfall?
my understanding is that there used to be a pretty prevalent scam in which a firm would send something of value unsolicited and then bill the recipient. When the recipient did not pay, the firm would harrasss the recipient and do whatever nasty thing they could to get the money. If you were someone that sold stuff like that from Fingerhut, i.e. marking up just 10000%, one could get a pretty penny if even 10% of the recipients were extorted to pay.
To combat this, in the US there are laws, as cited below, that pretty much give huge right to the recipient of unsolicited merchandise. There are two exceptions. Merchandise that is sent for inspection is to be returned. For instance I used to get calls from firms that would offer to send me stuff for free and if I liked it they would then bill the company. The assumption was that the purchasing department in a moderately sized organization would pay for stuff management wanted without too much checking or hassle. The law still provides a level of protection as the merchandise can be returned and the time frame is not set in stone.
My feeling is that, at least in the US, the recipient should be protected. Look at it this way. I order a box of pens from office depot. Instead of pens, the send me a printer. It could be that someone in my office steals it. Am I then liable for the printer?
Yes, you're liable. The difference is that this isn't unsolicited merchandise, this is incorrectly shipped merchandise in response to a solicitation. Rather than meeting the unsolicited merchandise law, this would fall squarely under the Uniform Commercial Code, which has been adopted in some form in every state. Specifically, this is a shipment by the seller of non-conforming goods, which the seller promptly identified. Under UCC 2-508, the seller can notify the buyer of his intention to cure and make a conforming delivery or repudiate the contract. In such cases, the buyer may charge reasonable storage or disposal fees, but that's it.
Consider: the UCC, as well as contract law in general and dating back hundreds of years, was written to protect the ordinary dealings of merchants with each other and merchants with the public. Mistakes happen, everyone knows that... A business shouldn't be unreasonably punished because of a mistake, or else, out of fear of such mistakes, transactions grind to a snail's pace with everyone seeking reassurances in triplicate of every maneuver. This is actually one of the first things they drum into us in contract law that is different from the layman's expectation: normally, we think of breaching a contract as being a terrible thing that leaves you liable to all sorts of bad results; in reality, breaching a contract is merely an economic decision, and the courts will not bankrupt a company in punishment for making a sound business decision of terminating a losing contract, particularly if the other side knows that there's something inequitable. Essentially, tort or criminal law is all about "you wronged me"; contract law is all about "economic efficiency" - the concept of punitive damages only exist in very, very extreme cases.
Here, the merchant is entitled to their Vitas back and owes each buyer the game, any shipping costs, and potentially even reasonable storage fees - which, for a single Vita, are going to be negligible. And this is the way it should be, unless we want every purchase that's not an in-person exchange of goods to come with ten pages of contracts to sign.
From the USPTO PAIR database, "By this preliminary Amendment, claims 1-154 have been canceled..."
154 claims canceled?!? Typical patents have around 21 claims. USPTO charges per-claim over 21 total claims. JP Morgan's application had 170 claims — way beyond even a 3-sigma deviation for all patent applications. That is, it's amateurish. But, somehow they managed to avoid paying the $80/each for the excess claims.
It's actually pretty standard in many instances - i.e. there's nothing amateurish about it. Specifically, if someone comes up with a half dozen related-but-different inventions, it may be more efficient to write one giant application than a half dozen applications that repeat parts of each other. That one giant application may then have [drumroll] 170 claims. And when you file it, you actually file one and cancel claims 21-170 in a preliminary amendment on the filing date, "somehow managing to avoid paying the excess claims fees". And then later (or at the same time), you file a divisional application and cancel claims 1-20 and claims 41-170. And another canceling claims 1-40 and 61-170. Etc.
Let me guess... in spite of your description of this standard practice as "amateurish", you're not a professional in the field?
So, anyways, from the USPTO PAIR database — JP Morgan are claiming that their filing is under pre-AIA conditions. That is, that they are first to invent, and are not subject to the current first to file rules. Big difference. The inventor filed an "oath" regarding the invention date. Uh huh.
Well, yeah. This was first filed in 1999, long before the first to file rules. Of course it's subject to the first to invent rules. 1999 vs. 2013? Big difference. Uh huh.
USPTO also says, "Claims 155-175 are allowed over the prior art of record based on the earliest priority of the parent applications." I couldn't find the priority date that they are claiming, or whether it is before their filing date, but one might guess they are trying to get a pre-BitCoin patent priority date. Jerks.
You apparently couldn't find paragraph 1 of the application:
[0001] This application is a continuation of U.S. Ser. No. 09/497,307 filed Feb. 3, 2000 and is based on and claims priority to U.S. Provisional Patent Applications Nos. 60/132,305, filed May 3, 1999; 60/150,725, filed Aug. 25, 1999; 60/161,300, filed Oct. 26, 1999; 60/163,828, filed Nov. 5, 1999; and 60/173,044, filed Dec. 23, 1999, the entire disclosures of which are hereby incorporated by reference.
Gosh, being really clear about the priority dates? What a bunch of jerks.
If only someone knew of some actual prior art, and that this person also knew the name and contact information for the patent examiner. Hmmn...
Ah, here we are: From their non-final rejection, "Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAGDISH PATEL whose telephone number is (571) 272-6748." I'm sure he has an email address as well.
Yeah, go ahead and call the Examiner, in spite of the fact that it's explicitly illegal without a letter of authorization from the patent applicant:
[T]he Office prohibits third parties from submitting any protests under 37 CFR 1.291 or initiating any public use proceedings under 37 CFR 1.292 (without the express written consent of the applicant) after publication of an application... Office personnel (including the Patent Examining Corps) are instructed to: (1) not reply to any third-party inquiry or other submission in a published pending application; (2) not act upon any third-party inquiry or other submission in a published application, except for written submissions that are provided for in 37 CFR 1.99 and written submissions in applications in which the applicant has provided an expres
Slashdot Mirror
This particular judge disallowed Samsung from showing the jury its prior art (phones that it had in the design pipeline before the iPhone was announced) because the Samsung lawyers missed a filing deadline. She let the letter of the law (a filing deadline) override the intent of the law (to get to the truth of the matter).
A deadline that Samsung knew about 6 months in advance, with designs that, as you note, Samsung knew about for years. It's not like they suddenly found these designs - they sat on them in secret and did not put them in their evidence lists, so that Apple and it's expert witnesses couldn't prepare. Contrary to Hollywood's presentation of the legal system, you don't actually get to call in surprise witnesses or bring up new evidence on the eve of trial. And preventing wins through trickery and last-minute maneuvers is both the letter and the intent of the law.
Samsung's patents may be FRAND but that doesn't mean that people should be able to use them without paying a fair or reasonable amount. Apple used them and refused to negotiate. Just what the fuck are Samsung meant to do in that circumstance? Ignore the patent?
File a lawsuit, go to court, get a judgement, and collect phat loot in damages, same as every other FRAND patent owner? What they can't do is do an end-run around the courts and go to the ITC seeking an injunction only. The ITC can't award damages, only injunctions, and damages are the only possible award for violation of a FRAND patent, by definition. There is no corruption here, just logic.
At some point, we will be able to proudly declare that Earth has bounced its balls off Uranus.
Way to miss the point. Without having made the thing, I didn't have an 'invention' worthy of patent. Far from complaining that 'somebody else stole my glory', I'm saying there was no glory to steal. Everyday pipe dreams are not inventions - though I guess our patent system can be manipulated to treat them as if they were.
It's not that I missed the point, it's that you're moving the goalposts. Originally, you said you had an idea, but sat on it and did nothing. Now, you've changed that to say that you didn't even have the idea. Uh, okay, but now your entire post is irrelevant. See, we're talking about people who did invent things and either published or sat on it, and what society owes them in exchange, not people who didn't invent anything and are now angry and bitter about those who did. Thanks, though, and have a nice day.
If you don't make a product using your patent, you really shouldn't have the right to tell others not to. To have an idea is one thing, but to actually bring it to market is something else entirely. To have an idea that could enhance the lives of everyone but do nothing but sit on it is counterproductive to the advancement of society as a whole.
What about if you're not sitting on it, but actively trying to market to the people who can bring it to market? Say I, a home inventor, come up with a new way to drastically increase the efficiency and safety of nuclear energy plants - I'm sure as heck not going to get clearance from the government to start building nuclear generators in my garage. Should I not be allowed to try to license that idea to energy companies? And if I'm not allowed to do so, then why would I waste time writing it up in the first place? In fact, by preventing me from licensing it, aren't you taking away any incentive to do anything other than "sit on it", and isn't your proposal "counterproductive to the advancement of society as a whole"?
I thought of the 'dual flush' toilet years before they appeared on the scene - but never bothered to build one (nor did I know how). Does that mean I deserve royalties from the other people who also thought of it and actually built them.
No, because rather than publishing your idea, you sat on it and did nothing until someone else came up with the idea. Why should society give you anything, when you've been keeping secrets?
Patents are not an award - you don't "deserve" royalties simply because you thought of something. Patents are a payment made in exchange for destroying a trade secret - in exchange for publishing your idea and telling everyone how to do it, society pays you a grant of a temporary monopoly. But if you don't pay your share, then society owes you nothing, sir. Good day!
But my key argument is that the entire patent and copyright system is almost entirely structured to benefit a very few. It also seems that the damage is far worse than the good it provides. But eliminating the patent system would be bad in that there are many cases where long hard risky efforts need to be rewarded. But stuff that you can conjure up in a 15 minute brainstorming session should not.
But that's the point of the patent system - it's not a reward for hard work, it's a payment in exchange for public disclosure. Look at it this way - say you make a revolutionary new invention, which, absent your invention, no one might come up with for another hundred years. We're talking about a super rare idea. You're going to tell everyone about it, and you'll probably win a Nobel prize and some other awards. We don't need to give you a patent too, because the public gets nothing out of it.
But, on the other hand, say you come up with something that only takes you a day of hard work, and others might also come up with in a similar amount of work. If you keep it secret (which you might do, because it's such a "minor" idea), then everyone else has to re-invent it. So, if you've got an industry with a thousand competitors, that's 1000 engineers independently recreating the same invention, wasting 999 days of effort. But if you publish your invention, then the others can learn from it, and go on to spend their 999 days working on the next 999 inventions.
Patents give you an incentive to publish your idea, and take away the disincentive by replacing your trade secret rights with another exclusive right. The public benefits, because by having you publish your idea, we don't have to waste time and money reinventing it.
All you have to do is say in 1980, "I think these mobile phones might have a future" then run out and patent that use of the generator in mobile phones. This is not good because A parasitically gaining while not contributing to the greater good, and two you are actually harming the person who did by intercepting money that might have gone to the real inventor.
Considering that someone else invented the generator and another someone else invented the mobile phones, then you can't get that patent. If A is known and B is known, then A+B is obvious by definition, unless there's some reason why A and B can't be combined.
he then went about writing stories around robots that never failed to obey their programming, but as effectively sentient thinking beings, would interpret their programming in ways the society around them couldn't anticipate...
he NEVER said the laws... were insufficient.
Perhaps we have a different definition of "sufficient", then. If idea was to proscribe undesirable behavior, then the laws were insufficient, by definition.
But, as you note, that was the point - it's not that the laws are invalid, but that they don't even begin to address the various interpretations possible due to their ambiguity.
It's trademark, intellectual property, that allows you to tell the difference between Coke, Pepsi, and RC cola.
No, it is not. It is my nose and taste buds that tell me the difference. Lipstick(trademark) on a pig doesn' change the fact your still dealing with a pig.
Yes it is. Because you can't taste every bottle of Cola before you buy it.
So that's why the store manager keeps chasing me out.
I have 3 problems with today's IP. Most IP is completely obvious; the one click patent is 100% crap.
Obviousness is a legal conclusion, like "guilty", and must be supported by evidence. You wouldn't throw someone in jail for murder because you have a gut feeling, would you?
There was a $10,000 bounty for prior art that would invalidate the one click patent. Since you think it's total crap, why didn't you show your art and collect that bounty? Why didn't anyone? Why was there a reexamination conducted for that patent, with all of the art that the EFF and Slashdot and others could throw at it, that still confirmed it as patentable? Because, contrary to what some would have you believe, it's not a patent on clicking once. It's a patent on a specific implementation of a workaround for a shopping cart model.
Any web developer with 3 months training would stumble upon that as completely obvious if they were building a large online sales site.
And yet, large online sales sites existed for many more than 3 months before Amazon, and no one did it. Reality seems to contradict your gut feelings and hindsight.
Things like patents and trademarks should be reserved for something innovative. Monster suing people for using monster as a synonym of big or great should be punished with their losing the trademark. There is definitely room for some patents and trademarks such as Xerox (completely made up). And inventing the transistor. But if someone invents a new way to generate light, nobody should be able to patent putting that into a flashlight.
So transistors are patentable but light emitting diodes are not? Do you have a specific list of patentable electronics components and non-patentable ones, or is this just another gut reaction thing?
But even in music and books there should be much shorter limit on the copyright. It just seems bizarre that someone who came up with an innovative guitar riff 60 years ago should be able to go after some indy band who "re-invented" the same riff and worked it into their song.
They can't. The indie band must have actually copied the earlier guitar riff. It's right there in the name "copyright". For example, remember the Men at Work copyright suit over "Land Down Under" with that flute riff? The copyright owners of "Kookaburra Lives in the Gumdrop Tree" had to show not only that the riff was identical, but that Men at Work had previously heard it. If, by some random happenstance, you sat down and wrote Larry Snotter and the Wizard's Stone, a story about a boy wizard who was raised by non-magical foster parents and who gets brought to a magic school by a message from a flying owl, and you had been living in a shack in the woods and had never heard of Harry Potter, you would not be liable for copyright infringement.
But yes, copyright probably shouldn't have the same term for direct copying as for derivative works and sampling.
From TFA:
According to the NSF, the Business Research and Development and Innovation Survey (BRDIS) “is an annual, nationally representative sample survey of approximately 43,000 companies, including companies in manufacturing and nonmanufacturing industries. The target population for BRDIS consists of all for-profit companies that have five or more employees and that perform R&D in the United States.”
From TFA:
If you examine the details, the survey results begin to make more sense. Larger companies tend to report intellectual property as being more important; businesses designated as especially “R&D active” also place more importance on various kinds of intellectual property.
The survey is not confined just to the target population, as it includes non-R&D active companies.
The problem with this logic is that the survey specifically targets businesses performing R&D. From TFA:
"The target population for BRDIS consists of all for-profit companies that have five or more employees and that perform R&D in the United States.”
Continuing in TFA:
If you examine the details, the survey results begin to make more sense. Larger companies tend to report intellectual property as being more important; businesses designated as especially “R&D active” also place more importance on various kinds of intellectual property.
And if you follow the link to the actual data tables in the report, you'll see that the various numbers pulled into the article - 96% say patents are not important, 54% in the "information" fields say copyright is not important, etc. - are all including the non-R&D active sets. If you do look at the target population that performs R&D, those numbers change, respectively, to 34% and 69% saying that they are important.
More telling, go to the data chart for new or improved products or processes by businesses who performed or did not perform R&D. For companies that did not perform any R&D, 88% did not create or improve any products or processes. Accordingly, it's pretty reasonable to consider that they wouldn't see much value in IP over that time. For companies that did perform R&D, 65% created new products or processes, and that starts getting a lot closer to the percentage saying that IP is important.
So, sure, depending on what numbers you cherry pick, you can "support" almost any conclusion, but you're not telling the entire story.
Because $16K over 12 years is chump change for most of the companies filing patents. Also they seem to have this paranoid notion that it is much better to keep around something that they might need than not have it and want it later.
Most of the companies filing patents are filing dozens, if not hundreds, each year. Over 12 years, you could easily end up with a portfolio of patents numbering in the thousands. For example, everyone's favorite patent troll company, Intellectual Ventures, has upwards of 80,000 patents, so for them, you're talking about maintenance fees of over a billion dollars over those 12 years, if they maintain all of them for the full term.
Your numbers refute nothing.
Actually, they refute your logical conclusion by showing that its based on a false premise. Additionally, unlike your numbers, mine are based in reality. You have no real numbers period.
We know what the numbers are with the current incentives. We don't know how much they would differ if those incentives were neutralized.
Begging the question. I disagree that they're even "incentives", and my actual numbers show that they do not appear to be, since if anything, the USPTO has a greater incentive to reject applications and collect fees for RCEs and appeals.
Additionally:
It's not unreasonable to draw suspicion on this practice, because the actual costs of maintenance are basically nothing. $7,500 for rubber stamping a continuation? That's quite fishy, and seems like it would be difficult to justify.
You apparently have no idea what you're talking about. Maintenance fees have nothing to do with continuation applications. You are combining two things because you've heard the words in connection with patents and assume they must be related, even though you have no real clue what they mean.
And I realize that you're going to wave your hands and claim it was a typo, but you do the same thing here:
An initial rejection means that they get a little bit more for an amendment.
Amendments aren't charged a fee unless you add claims without canceling other claims. The USPTO doesn't simply get more money by virtue of initially rejecting an application. You really are just tossing out statements with no idea whether they're correct or not.
Not at all. They have to at least pretend to do their job. Let's say that absent economic incentives, the allowance rate would be 5%. In that case, 49.2% is almost ten times the rate and the USPTO is incredibly broken. They can be doing a horrible job due to perverse incentives without being 100% cronies. It's the same thing with police departments and their perverse incentives. They have incentives to write bullshit tickets and seize everything that they can, but cops do spent a lot of their time doing things other than that.
However, let's say that absent economic incentives, the allowance rate would be 95%. Then clearly, 49.2% represents an incredibly stingy allowance rate, and the USPTO is incredibly biased against patents.
See? Unsourced numbers can be pulled from your ass to support any conclusion with equal credibility, whether it's my 95% or your 5%... "equal" credibility still being "zero" credibility. On the other hand, actual numbers, specifically the 49.2% allowance rate and the 87.2% initial rejection rate, refute your unsupported conclusion.
Being obsolete doesn't mean that the patent isn't useful. If you manage to dupe the USPTO into granting you are patent on a necessary piece (or one that has become so commonplace to be necessary for interoperability reasons), you can ambush most anybody in the field.
Yes, but the conclusion that the USPTO makes the majority of their fees post-grant relies on the premise that the majority of these patents have maintenance fees paid. And, as you note, that relies on a premise that a majority are "commonplace" that are used to "ambush" people. However, the premise is false.
You also don't seem to be understanding the criticism. The USPTO gets paid as much or more for accepting a patent than they do for rejecting it.
No, I understand the criticism. I'm merely pointing out that it's based on a false conclusion from an erroneous premise. In reality, not only are the majority of patents abandoned during their lifetime, before many of those maintenance fees are paid, the original argument disregarded all of the other fees paid to the USPTO, including fees for Requests for Continued Examination (which increase drastically after the first one), appeal fees, petition fees, etc., and those are all fees that are only paid when the USPTO rejects an application.
Now, what is the actual average cost to obtain a patent in fees to the USPTO vs. what is the actual average cost paid for issuance and maintenance? I don't know, and it would take a lot of data mining to find out (albeit from publicly available information), but I can tell you that if you start by ignoring the majority of the fees, your conclusion is based on fluff and dreams.
Furthermore, the evidence points to your conclusion being wrong. From here, the allowance rate is 49.2% including RCEs, or 68.5% not including them, depending on whether you consider an RCE to be a new application or not (for our purposes, discussing fees, it's somewhat irrelevant). If the USPTO had such great incentives to allow these cases, wouldn't that be 90% or higher?
In fact, to maximize their fees, wouldn't the USPTO want to allow all cases immediately? But instead (from the same page, scroll down), you find that 87.2% of applications are initially rejected. It's almost the opposite of the rubber stamp that your argument would suggest.
Huh, I didn't realize that. Looks like, for large companies at least (there are some discounts for individual inventors), the fees break down roughly like this:
So basically the USPTO gets $1600 if the patent is rejected, or $15,980 if it's approved.
... the latter of which are over the course of 12 years. Plus, that's only if the patent is maintained for its full term, and not many are, particularly in the computing industry. Why pay $16k in maintenance fees on a patent on a technology that's obsolete?
The problem isn't women in the community (they have been here all along...) its feminists. As with other niche communities, feminists have invaded the programming community, and then demanded that the community change its character and become a 'safe space'.
Actually, I think they just wanted people to stop mocking women and discriminating against them.
There's a difference between an unsolicited shipment and a solicited, but erroneous, shipment
In the USPS recommended actions, there is. In federal law, there is not. The legal definition of unordered merchandise is "merchandise mailed without the prior expressed request or consent of the recipient" (See USC 39 3009(d)). The people ordered some merchandise but what they received was something else that was mailed without prior expressed request or consent of the recipient.
True, at federal law, there isn't, because contracts for sale of goods are state law under the UCC, not the federal government. Under state law in every state, it's a solicited, but erroneous, shipment, and the seller has the opportunity to recover the incorrect goods at their expense and either cure by shipping the correct product or repudiate the sale and suffer penalties for breach.
Is this true even for interstate shipments? That seems unlikely.
Of course it does. You're getting confused because you hear about interstate commerce being regulated by the Federal government, and think that anything that travels interstate must solely be under Federal law... It's not true - there is, for example, no such thing as federal contract law. All contracts are governed under state law, including contracts that relate to interstate shipments. State law applies here.
In addition, even for intrastate I think there's a good argument that such a state law contradicts federal law, if the shipment was sent via the postal service (though most such shipments are sent via UPS or FedEx, which may be different).
Not at all. As many people in this thread have said, the federal law deals with unsolicited purchases. This is not an unsolicited purchase, it's a solicited purchase where the wrong goods got shipped.
Come on, think logically - the Federal government is going to write a law that screws large corporations when some warehouse monkey ships the wrong thing? The same Federal government that, whenever copyright or SOPA or PIPA or anything else is mentioned, we claim is bought and sold by large corporations?
Also, do you have a citation (in any state) for the law you're claiming obligates the recipient (or buyer, whatever) to return the incorrect goods?
Yes, it's in the UCC article 2-508, which has been implemented in some form in every state's laws.
I spent some time looking through Utah State Code, and it appears to me that upon receipt the buyer is fully justified in accepting the erroneous shipment and calling the transaction complete, if you choose to look at it as an error in the transaction, or in accepting the erroneous shipment as unrequested goods, and demanding that the original transaction be completed.
Nope, 2-508 is also in the Utah code. And if the buyer attempted to accept the shipment and demand that the original transaction be completed, then the buyer is admitting that goods are solicited, and would be liable for conversion.
Again, logically, come on... Mistakes happen in warehouses all the time. You really think that the government has written in statutes that explicitly screw corporations and give windfalls to individuals because of mistakes?
There's a difference between an unsolicited shipment and a solicited, but erroneous, shipment
In the USPS recommended actions, there is. In federal law, there is not. The legal definition of unordered merchandise is "merchandise mailed without the prior expressed request or consent of the recipient" (See USC 39 3009(d)). The people ordered some merchandise but what they received was something else that was mailed without prior expressed request or consent of the recipient.
True, at federal law, there isn't, because contracts for sale of goods are state law under the UCC, not the federal government. Under state law in every state, it's a solicited, but erroneous, shipment, and the seller has the opportunity to recover the incorrect goods at their expense and either cure by shipping the correct product or repudiate the sale and suffer penalties for breach.
IMO, returning the Vita is the moral and mannerly thing to do, and the company should pay for shipping and perhaps even compensate the recipient for their time to return it (maybe a free game or something). But per US law, the recipient has no obligation to return it.
Under US law, if the seller seasonably notifies the buyer (because, yes, we're talking about a seller and a buyer here, despite your attempt to shift the definition to a mere "recipient") that the goods were shipped in error and they intend to cure and recover the incorrect goods, and the seller refuses, then the seller is liable for damages for conversion under state law. Theoretically, depending on the value of the goods, there could also be state criminal charges. It has been this way for literally more than 250 years, because this stuff dates back to pre-US old common law.
~~~~~~~~ http://about.usps.com/publications/pub300a/pub300a_tech_021.htm A company sends you a gift in the mail — a tie, a good luck charm, or a key chain. You didn’t order the gift. What do you do? Many people will feel guilty and pay for the gift. But you don’t have to. What you do with the merchandise is entirely up to you.
If you have not opened the package, mark it “Return to Sender.” The Postal Service will send it back at no charge to you. If you open the package and don’t like what you find, throw it away. If you open the package and like what you find, keep it — free. This is a rare instance where “finders, keepers” applies unconditionally. Whatever you do, don’t pay for it — and don’t get conned if the sender follows up with a phone call or visit. By law, unsolicited merchandise is yours to keep. ~~~~~~~~~ Gift - something bestowed or acquired without being sought or earned by the receiver.
There's a difference between an unsolicited shipment and a solicited, but erroneous, shipment:
Q. What should I do if the unordered merchandise I received was the result of an honest shipping error?
A. Write the seller and offer to return the merchandise, provided the seller pays for postage and handling. Give the seller a specific and reasonable amount of time (say 30 days) to pick up the merchandise or arrange to have it returned at no expense to you. Tell the seller that you reserve the right to keep the merchandise or dispose of it after the specified time has passed.
Also:
Gifts don't have to be intentional
This is entirely incorrect. By definition, a gift must be intentional:
In order for a gift to be legally effective, the donor must have intended to give the gift to the donee (donative intent), and the gift must actually be delivered to and accepted by the donee.
I don't give a flying crap because this isn't about the law. It's about common decency. You would be cursing said law instead of citing it if the same thing had happened to you.
Not to mention the fact that you're right and the AC is wrong about the law. This isn't an unsolicited shipment, it's a solicited shipment with non-conforming goods that was seasonably repudiated by the seller, who now seeks to reclaim the incorrectly shipped goods and correct the defect. The law is pretty clear that the buyer doesn't get a windfall.
Is this so clear-cut? The law says it is: "merchandise mailed without the prior expressed request or consent of the recipient." It does not seem to differentiate mistakes. That is, none of these people ordered a Vita bundle--they ordered something different. Therefore the merchandise of a Vita bundle was mailed without prior request or consent. What was requested was a particular game.
Unless there is prior case law, I don't think anyone can really say whether the particular order (or an identical one taking place in the US) would qualify as "mailed without prior expressed request."
I'm referencing http://www.gpo.gov/fdsys/pkg/USCODE-2011-title39/html/USCODE-2011-title39-partIV-chap30-sec3009.htm which doesn't have any obligation to the recipient--and expressly says so: "Any merchandise mailed in violation of subsection (a) of this section, or within the exceptions contained therein, may be treated as a gift by the recipient, who shall have the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender"
Nothing in this code indicates that you can charge for storage should you return the item, either.
Is there a different law I'm unfamiliar with that you're referring to?
It's actually clear cut the other way. See, for example, this page (I know it's state rather than federal, but it was the first hit on Google and it's late):
If you receive unordered merchandise such as clothing or books in the mail, you may be surprised about your rights. Federal law prohibits a company or organization from mailing unordered merchandise to you and then demanding payment. It is legal to send unordered merchandise if it is clearly marked as a free sample or is mailed by a charitable organization asking for donations...
It is a different matter if the mailing you received was due to a mistake by the company. In these circumstances, Georgia law regarding “unjust enrichment” obligates you to return the item paid for by another customer. The company, however, will have to pay postage and handling or make arrangements to pick it up.
The same thing is in the UCC, which has been adopted in every state. In the case of a shipment that you ordered but which contains non-conforming goods, the seller can notify you of the error and provide the proper goods. They have to pay for return shipment and any storage fees you incurred, but you don't simply get to keep it.
Consider, from a cynical Slashdotter point of view - these commercial laws and the UCC were written to protect merchants and large companies... Do you think they'd really write in a provision that allows a honest mistake by a minimum wage mook in shipping to turn into a windfall?
my understanding is that there used to be a pretty prevalent scam in which a firm would send something of value unsolicited and then bill the recipient. When the recipient did not pay, the firm would harrasss the recipient and do whatever nasty thing they could to get the money. If you were someone that sold stuff like that from Fingerhut, i.e. marking up just 10000%, one could get a pretty penny if even 10% of the recipients were extorted to pay.
To combat this, in the US there are laws, as cited below, that pretty much give huge right to the recipient of unsolicited merchandise. There are two exceptions. Merchandise that is sent for inspection is to be returned. For instance I used to get calls from firms that would offer to send me stuff for free and if I liked it they would then bill the company. The assumption was that the purchasing department in a moderately sized organization would pay for stuff management wanted without too much checking or hassle. The law still provides a level of protection as the merchandise can be returned and the time frame is not set in stone.
My feeling is that, at least in the US, the recipient should be protected. Look at it this way. I order a box of pens from office depot. Instead of pens, the send me a printer. It could be that someone in my office steals it. Am I then liable for the printer?
Yes, you're liable. The difference is that this isn't unsolicited merchandise, this is incorrectly shipped merchandise in response to a solicitation. Rather than meeting the unsolicited merchandise law, this would fall squarely under the Uniform Commercial Code, which has been adopted in some form in every state. Specifically, this is a shipment by the seller of non-conforming goods, which the seller promptly identified. Under UCC 2-508, the seller can notify the buyer of his intention to cure and make a conforming delivery or repudiate the contract. In such cases, the buyer may charge reasonable storage or disposal fees, but that's it.
Consider: the UCC, as well as contract law in general and dating back hundreds of years, was written to protect the ordinary dealings of merchants with each other and merchants with the public. Mistakes happen, everyone knows that... A business shouldn't be unreasonably punished because of a mistake, or else, out of fear of such mistakes, transactions grind to a snail's pace with everyone seeking reassurances in triplicate of every maneuver. This is actually one of the first things they drum into us in contract law that is different from the layman's expectation: normally, we think of breaching a contract as being a terrible thing that leaves you liable to all sorts of bad results; in reality, breaching a contract is merely an economic decision, and the courts will not bankrupt a company in punishment for making a sound business decision of terminating a losing contract, particularly if the other side knows that there's something inequitable. Essentially, tort or criminal law is all about "you wronged me"; contract law is all about "economic efficiency" - the concept of punitive damages only exist in very, very extreme cases.
Here, the merchant is entitled to their Vitas back and owes each buyer the game, any shipping costs, and potentially even reasonable storage fees - which, for a single Vita, are going to be negligible. And this is the way it should be, unless we want every purchase that's not an in-person exchange of goods to come with ten pages of contracts to sign.
From the USPTO PAIR database, "By this preliminary Amendment, claims 1-154 have been canceled..."
154 claims canceled?!? Typical patents have around 21 claims. USPTO charges per-claim over 21 total claims. JP Morgan's application had 170 claims — way beyond even a 3-sigma deviation for all patent applications. That is, it's amateurish. But, somehow they managed to avoid paying the $80/each for the excess claims.
It's actually pretty standard in many instances - i.e. there's nothing amateurish about it. Specifically, if someone comes up with a half dozen related-but-different inventions, it may be more efficient to write one giant application than a half dozen applications that repeat parts of each other. That one giant application may then have [drumroll] 170 claims. And when you file it, you actually file one and cancel claims 21-170 in a preliminary amendment on the filing date, "somehow managing to avoid paying the excess claims fees". And then later (or at the same time), you file a divisional application and cancel claims 1-20 and claims 41-170. And another canceling claims 1-40 and 61-170. Etc.
Let me guess... in spite of your description of this standard practice as "amateurish", you're not a professional in the field?
So, anyways, from the USPTO PAIR database — JP Morgan are claiming that their filing is under pre-AIA conditions. That is, that they are first to invent, and are not subject to the current first to file rules. Big difference. The inventor filed an "oath" regarding the invention date. Uh huh.
Well, yeah. This was first filed in 1999, long before the first to file rules. Of course it's subject to the first to invent rules. 1999 vs. 2013? Big difference. Uh huh.
USPTO also says, "Claims 155-175 are allowed over the prior art of record based on the earliest priority of the parent applications." I couldn't find the priority date that they are claiming, or whether it is before their filing date, but one might guess they are trying to get a pre-BitCoin patent priority date. Jerks.
You apparently couldn't find paragraph 1 of the application:
[0001] This application is a continuation of U.S. Ser. No. 09/497,307 filed Feb. 3, 2000 and is based on and claims priority to U.S. Provisional Patent Applications Nos. 60/132,305, filed May 3, 1999; 60/150,725, filed Aug. 25, 1999; 60/161,300, filed Oct. 26, 1999; 60/163,828, filed Nov. 5, 1999; and 60/173,044, filed Dec. 23, 1999, the entire disclosures of which are hereby incorporated by reference.
Gosh, being really clear about the priority dates? What a bunch of jerks.
If only someone knew of some actual prior art, and that this person also knew the name and contact information for the patent examiner. Hmmn...
Ah, here we are: From their non-final rejection, "Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAGDISH PATEL whose telephone number is (571) 272-6748." I'm sure he has an email address as well.
Yeah, go ahead and call the Examiner, in spite of the fact that it's explicitly illegal without a letter of authorization from the patent applicant:
[T]he Office prohibits third parties from submitting any protests under 37 CFR 1.291 or initiating any public use proceedings under 37 CFR 1.292 (without the express written consent of the applicant) after publication of an application... Office personnel (including the Patent Examining Corps) are instructed to: (1) not reply to any third-party inquiry or other submission in a published pending application; (2) not act upon any third-party inquiry or other submission in a published application, except for written submissions that are provided for in 37 CFR 1.99 and written submissions in applications in which the applicant has provided an expres