Also I've known lyrics to a song before but not the name. Being able to search the internet based on lyrics is what has allowed me to find a song I was after.
Reducing access to lyrics is reducing people's ability to find the name of a product they wish to buy.
Go read the article again. They're only going after unlicensed lyric sites - azlyrics.com will still exist.
Unlike many of the posters above who are saying that this will kill music sales because when they don't know the artist or song title, they search for lyrics, I actually read the article - they're targeting only unlicensed lyrics sites. The fully licensed azlyrics.com will still exist, as will lyricfind.com and musicmatch.com. In fact, it appears that the ones that are targeted are the ones that have tons of pop-ups, malware advertisements, redirecting scripts, etc. So, good.
A high-quality and detailed teardown of their own product? I think that's freaking awesome. And smart too - they know the success of the PS4 will depend on the early adopter, hard-core gamer, the type of person who has likely put together a home-grown PC gaming system and who would get excited about exactly this type of video. Well done Sony.
A detailed teardown was inevitable from someone - probably Ars Technica, for example. And that teardown comes with a review of Sony's architecture and decisions, and the review may not necessarily be entirely favorable. However, this way, the first teardown is accompanied by glowing descriptions of the hardware. Anything later is an also-ran, by definition, and will draw less eyeballs than it would have if it was first. The widest seen review now will be their own. More companies should do this.
Researchers at Cornell University are developing a co-active learning method, where humans can correct a robot's motions, showing it how to properly use objects such as knives. They use it for a robot performing grocery checkout tasks.
I believe using a knife at the grocery checkout is called armed robbery.
Any decent defence attorney will find little trouble pointing out that all pre-1997 search engines are prior art, since a search engine has always been an advertising machine. If I typed into Alta Vista, in 1996, a search for "books" and came up with any site related to books, Alta Vista has acted in the role of an advertising machine in directing me to that site.
You have to actually read the patent claims, not just the title. In particular, the claims require correlation of user profile data and search terms for determining the delivered data. In Alta Vista, searches were just based on your search terms, not your user profile - Bob didn't get different results from Alice. Accordingly, while Alta Vista is certainly relevant prior art that could be used in combination with other art to potentially invalidate the claims, alone, it doesn't do the job.
And this brings up an important distinction which can't be repeated often enough on Slashdot: "prior art" is defined as anything in the art which was known prior to the filing of the patent application. That's it. The Model T is prior art for the Tesla Roadster. The Wright Brothers plane is prior art for the Space Shuttle. The Antikythera mechanism is prior art for the Samsung Galaxy Gear watch.
What Slashdot users typically mean when they misuse the term is "anticipatory prior art", which is prior art that discloses everything in the claimed patent. If a patent claims A+B+C and a prior art document describes A+B+C, that's anticipatory prior art, and invalidates the patent by itself. On the other hand, if the prior art document describes only A+B, that's not anticipatory, even though it is prior art. The patent is still valid, at least over that one reference. If you then find another piece of prior art that describes B+C, and you could easily combine the two, then you've shown that the patent is obvious over the two references.
So, in short, saying "all pre-1997 search engines are prior art" is absolutely true, and absolutely meaningless. Of course they are. But do one or more of them, alone or in combination, teach or suggest each and every element of the claims? That's the real question.
OP here. I didn't say it was illegal (IANAL), I said it should be illegal. A consortium to develop new tech or something is reasonable. A consortium to play patent troll is not. As it is, patents are just government granted monopolies. Collusion (oops, I meant a consortium) to leverage those little monopolies into a big monopoly is grossly anti-competitive. Business laws should be about fostering competition, not hindering it.
Actually, it's the exact opposite - the DoJ's position is that patent pooling frequently has positive economic effects in avoiding litigation and enabling cross-licensing, and accordingly is usually not anti-competitive per se. It can be, but that mainly relies on other things - FRAND pools that include non-standard essential patents; different license pricing for competitors of pool participants; etc.
Abolish software and "business method" patents. They're not *things*, just ideas. They're not what patents were *created* to protect.
35 USC 101... states that whoever invents or discovers "any new and useful process [...] may obtain a patent therefor..." A process is not a *thing*, just an idea... but clearly, that is what patents were created to protect.
While I agree with you that patents ultimately monopolize the use of ideas rather than things, Cochrane v. Deener (94 US 780 - Supreme Court 1877) explained the term "process" as follows:
A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing.
Software and business methods obviously do not meet this standard. There are no "certain materials" to be transformed, and the goal is not to reduce them to a different state or thing. Only physical processes count as patentable subject matter.
Although you're correct about the 1877 case, it has since been expanded by both Congressional amendments to the statute in the 1952 act, and Supreme Court opinions - see Gottschalk v. Benson in 1972, noting in dicta: "It is said that the decision precludes a patent for any program servicing a computer. We do not so hold."; and of course, Bilski v. Kappos, which noted that Congress explicitly allowed patentability of business processes.
In particular, as the Supreme Court noted, the patent act includes no definition limiting "process" to "physical processes":
Section 100(b) provides that “[t]he term ‘process’ means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.” The Court is unaware of any “‘ordinary, contemporary, common meaning,’” Diehr, supra, at 182, of the definitional terms “process, art or method” that would require these terms to be tied to a machine or to transform an article... A categorical
rule denying patent protection for “inventions in areas not contemplated by Congress... would frustrate the purposes of the patent law." Chakrabarty, 447 U.S., at 315.
Regarding business processes, they stated:
Section 101 similarly precludes the broad contention that the term “process” categorically excludes business methods. Section 101 similarly precludes the broad contention that the term “process” categorically excludes business methods... The argument that business methods are categorically outside of 101’s scope is further undermined by the fact that federal law explicitly contemplates the existence of at least some business method patents... A conclusion that business methods are not patentable in any circumstances would render 273 meaningless. This would violate the canon against interpreting any statutory provision in a manner that would render another provision superfluous.
And of course, the AIA passed, post-Bilski, without modifying 100, 101, or 273 to correct any misinterpretation of the Supreme Court in Bilski. It's another canon of statutory construction that where Congress has amended an act following judicial interpretation, but have not modified or countermanded that interpretation, they have approved it. Hence, no matter how you look at it, software and business methods are patent eligible (providing they are also new and nonobvious, and the claims do not merely recite an abstract idea, of course).
Abolish software and "business method" patents. They're not *things*, just ideas. They're not what patents were *created* to protect.
35 USC 101 defines patent eligible subject matter, and states that whoever invents or discovers "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor..." A process is not a *thing*, just an idea... but clearly, that is what patents were created to protect.
That's a failing of Google. They're the kings of search, so everything should be searchable, right? So they extended that to everything should be searched - always. Want to know who batted third in the fourth game of the World Series? Search for it. Want to know who sent you that email? Search for them. Want to run a program? Search for it.
What they don't acknowledge is that people grow habits. Once we've learned a thing, we can repeat the thing pretty easily. I don't have to "search" for Excel on my PC, I know that if I click down here, then up and over here, I see the little [X~] icon. I don't open the search bar and type Excel. And I never open the search bar and type Excel.
You should try a Mac. I hit command-space and type "exc" and hit return and Excel launches. With Spotlight indexing the drive, why bother actually trying to click through folders if I know the name of what I'm looking for, or even a word in the file?
Probably, but because it was already imagined back in the days of VHS, but simply wasn't practical with that technology.
Great, now you're not using hindsight: simply find a reference from back in the days of VHS that describes everything in the TiVo patent claims, and you've invalidated them.
And if the patent was filed in, say, 2003, where do you find 20 programmers who have been locked in a closet for the past decade such that their knowledge of the art is limited to what existed at the time of filing? Because everything is obvious in hindsight, if you give it sufficient time. I bet almost any Slashdotter in here could draw a spec for a simple internal combustion engine or steam engine on a napkin... so therefore those shouldn't have been patentable in the 1800s?
There are things that are obvious in hindsight - they are obvious once you see the invention. There are other things that are obvious because of the progress of things around us. I'd say a TiVo would be pretty obvious today, even if we never had seen one.
So, should the patent office have rejected TiVo's patents back in the 1990s, because "at some point in the unforeseen future, this may become obvious"?
The bill will require patent holders who are filing a suit to identify the specific products and claims which are being infringed
I've never understood how you can file suit without explicitly listing this.
They currently do list the patents, but not necessarily the claims or products. For example, a complaint may say that the defendant is "infringing one or more claims of US Patent No. blahblahblah through manufacture of products related to blahblahblah, including at least product name, product name, and product name." The reason for such ambiguity is because this is all pre-discovery, and if you need to examine the source code to determine if something infringes claim 2 but not claim 3, you need access to the code.
By the time anything gets to trial, it's very much fixed to certain patents, certain claims, and certain product models.
Agreed. The solution is to use statute to redefine "obviousness". That standard should be redefined in statute to match the common understanding of that word instead of the absurd legal definition. You know that thing about a patent not being valid if a person of ordinary skill in the art could reproduce it? To prove that all they should have to do is put twenty programmers on the stand and if ten of them can come up with that solution, then it's invalid.
And if the patent was filed in, say, 2003, where do you find 20 programmers who have been locked in a closet for the past decade such that their knowledge of the art is limited to what existed at the time of filing? Because everything is obvious in hindsight, if you give it sufficient time. I bet almost any Slashdotter in here could draw a spec for a simple internal combustion engine or steam engine on a napkin... so therefore those shouldn't have been patentable in the 1800s?
It is 'free' if you own OSX. Therefore it is a free update. In terms of the number of changes it may be larger, but in actuality it is no different than windows 8.1 or a Service Pack.
It's more like an upgrade from Windows 7 or XP to Windows 8 - it's a complete OS installer, not a mere upgrade, and you can do a clean install.
4.Introduce a system where anyone (even if they aren't using/violating the patent) can submit prior art to the patent office for review. The patent office would then review that prior art. If the prior art is found to be genuine and the patent is invalidated, the holder of the patent must pay the patent office money to cover the review. If the prior art is not genuine, the entity that submitted the prior art has to pay.
I like this idea, but just to avoid confusion, I don't think the word you're looking for is "genuine", but rather "invalidating". The Model T Ford is certainly "genuine" prior art for the Tesla Model S - it's prior, it's in the art, and it's certainly real. But it wouldn't show that a patent on the electric drive train or charging system was anticipated or obvious. People frequently use the term "prior art" - as in "this patent is stupid, look, I found prior art" - but what they really mean is "anticipatory prior art" or prior art that discloses every limitation of the claims. That's just a subset of all prior art out there, which is literally everything in the relevant industry that was published or produced.
The patent office is doing their job. They are charged with recording and maintaining records of patents. When you file, you swear, under oath, that the patent you are filing does not already exist and is not already in prior practice. The people who file patents honestly do patent searches (that is why the lawyers get the big bucks) before they file the patent.
If you file a patent of something that already exists or has already been patented, you are expected to be taken to court to have your patent invalidated. The rules are setup in a way that the courts can deal with patent issues, not a government bureaucrat sitting in an office.
But, that is how the system was setup and how the office is charged in running.
I believe you may be confused, or may be referring to another country, such as Hong Kong. Basically, there are two systems for patents. The first is a registration-only system in which the patent office does nothing other than "record and maintain records". Hong Kong has this. Australia also has invention registrations that are separate from patents, and are merely recorded.
The second is an examination system in which the patent office does a full search and examination of the patent application, typically (around 90% of the time in the US) rejecting the patent application initially, and leaving it to the inventor to amend and narrow the claims in response before the patent is finally allowed. The "government bureaucrats sitting in an office" in these systems are scientists and engineers. Frequently in these systems, the patent attorney does not do prior art searches, because the patent examiner is going to do his or her own search anyway and why would he or she accept ours?
This is not to say that the examination systems are perfect, but just that the office is doing more than just recording and maintaining records.
require the loser in a suit to pay attorney's fees and costs
I'd argue, the loser should be on the hook for the winner's expenses by default. Currently the court may make them responsible, but the winner typically needs to specifically ask for it — and it should be the opposite. In all cases: civil and criminal (if the accused is acquitted, the prosecuting office needs to cough up).
At least, this should apply (whether the subject is patent or not), when the losing the side is the one, that initiated the proceedings in the first place.
force trolls to reveal anyone who has a 'financial interest' in the case, making them possibly liable for damages.
This bit also seems generic — if such a disclosure is a good idea (and I am not sure), then why limit it to just patent cases?
Of course, this also means that if a small inventor sues a giant company for patent infringement, all the company has to do is hire the most expensive legal team around and run up costs as much as possible, to make the possibility of a loss so terrifying for the inventor that they'll settle.
Since when did copying an existing work become innovation?
Ah, but it's not just a copy. It's a copy of something "on the Internet" and/or "in a browser", which according to the US Parent Office is almost certainly innovation.
Contrary to popular Slashdot belief, there aren't any patents with claims that recite prior art steps plus "on the Internet" with that being the point of novelty. There are two reasons for this myth, both based out of misunderstandings.
First, the doctrine of claim differentiation says that if you have a first claim that says "on a network" and a dependent claim that says "wherein the network is the Internet," then by definition, the networks in the first claim must include both the Internet and other networks. But this has nothing to do with patentability, just infringement, and no patent was ever granted because of a dependent claim like that.
Second, when you simplify or paraphrase a patent, you are inherently describing it in terms that you already know and understand: an automobile is just a horseless carriage. An electric car is a horseless carriage with a battery. An airplane is a horseless carriage with wings. Clearly those are just combinations of existing prior art, right? But that's irrelevant if your claims are actually to internal combustion engines, fuel cells, hybrid transmissions, ramjets, etc. So, while something may look like "[x] old thing, but on a computer," the question is whether that's just your paraphrased version, or whether that's what's actually claimed - and the answer is that no patent has ever been granted with the latter.
Do you have an citation for this alleged "bench rule multiplier"? In all my years of IP practice - and yes, IAAL - I have never encountered such a thing. Did you pull it from a news article, or a copy of some local district rules, or possibly your ass?
I was attempting to simplify shit that's so complex that even lawyers like yourself routinely get lost in it in a way that a layperson could understand. You'll forgive me if I don't vomit up a twenty page legal brief on the subject, given that the audience here does not consist entirely of people who have been through law school. I thought that would be plainly obvious to everyone, but I didn't consider that I might be dealing with a lawyer who makes a living off making things unnecessarily complex, and that attempting to explain these self-induced complexities in simpler terms might cause him to shit a massive brick of text on an internet forum.
In other words, "no, I pulled it from my ass." There is no arbitrary multiplier preestablished in any bench rule. The fact finder - typically the jury - is given a range of damages, either $750-$30k or $750-$150k depending on what has been determined for willfulness, and selects from within that range as they feel appropriate. No values are multiplied. You may have been confused because of the phrase "triple damages", which are punitive damages applied according to statutes in other areas of law. They don't exist within copyright law.
Friendly bit of free advice: in the future, when someone corrects a false statement you've made, try saying, "thank you, I didn't know that until now," rather than calling them a troll. It will increase your credibility rather than destroying it.
I'm not even going to dignify your wall of text troll with a response.
I'm sorry reading more than a paragraph is difficult for you. Allow me to jump to just the point that I wanted a response from you on:
Also not quoted was the bench rules, which vary by each court, and would include how this 'arbitrary' math should be done; California appeals court may say you multiply by a value of 10 to 50... Federal court, maybe 50 to 5 billion. Without a copy of the bench rules, it's difficult to say how strongly the judge felt about your culpability.
This is all incorrect... There's also no "arbitrary figure" in bench rules that a jury or judge determined damage award is multiplied by. Frankly, I have no idea what you're talking about here. Do you have any sort of source for this alleged "bench rule multiplier"? It's certainly not in either the Thomas or Tenenbaum trials.
Do you have an citation for this alleged "bench rule multiplier"? In all my years of IP practice - and yes, IAAL - I have never encountered such a thing. Did you pull it from a news article, or a copy of some local district rules, or possibly your ass?
While there is court discretion, there is a statutory minimum. The problem is that the law doesn't state what the unit of measure for a single infringement is. So when the unit of measure is one download of one song, a $200 minimum is unreasonable. That would be $3000 for a single download of a single audio CD. If the file was torrented, the dollar amount increases exponentially as the file is shared.
That's not true - or, technically, not true any more (and hasn't been true since the 1970s). From the statute quoted above:
[T]he copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just...
The unit of measure is "one work", and applies to any and all acts of infringement with respect to that work. For example, if you download a copy of the song once, that's one infringement. If you make a copy for your friend, that's another. If you upload it to thousands of people, that's thousands of infringements... but all of these are "with respect to any one work", and you are only liable for $750-$30k (or up to $150k if the infringement was willful).
It was not always thus - before the 1976 Copyright Act, statutory damages were per act of infringement. Make one copy, one damage award. Make ten copies, ten damage awards. In 1976, this changed to the "per work" version above.
That is how Jamie Thomas wound-up with a settlement of over $2000 per song.
$9,250 per song, in fact, which happens to be very close to the geometric mean of $750-$150000.
Actually, this isn't just the judge. In Capitol v. Thomas, a jury repeatedly awarded more than the judge(s) did in every trial along the way. Because it's not just about how much damage you caused, but how much deterrent value a higher award brings. There were several juries, and they also awarded wildly different amounts; Each time the judge reduced it post-trial.
It can be inferred from this that when ordinary people review these cases, they judge them much more harshly than the judge does. This whole 'discretion' thing you're on about is not only very likely in play here, it's probably more generous than the average person would be given the facts of the case.
The judge, however, was reversed repeatedly by the appeals court, because the statute doesn't allowed the judge to overrule the jury in that manner. The statute says that it's the discretion of the court, not a unilateral reversal by one member of the court over the others.
Statutory damages are in a range of, as you so nicely quoted, go from $750 to $30,000 -- the judge can't pick a number outside of those ranges. And in the case of 17 USC 504(c), you only quoted part of it.
I didn't think it was relevant to discuss libraries or broadcasters. If you find fault with how I edited the quote, I did provide the link, too.
$750-30,000 is the figure quoted for infringement period. In other words, knowledge or no knowledge, that's how much you're getting slapped with.
Not so - see "innocent infringement", with has a penalty of $200 per work. Specifically: "in a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright." If you have no knowledge that it was infringement and you can prove that, then you are not getting hit with the base range of damages.
For this portion, the judge doesn't consider motive -- only and solely the actual value of the work. Should the court find you did so wilfully, they can then go above that previously-calculated amount. Which is why sharing mixes of the boy band in your neighbor's garage is going to get you less of a fine than sharing Michael Jackson's collected works (there's no accounting for taste either in law, unfortunately!).
The court does not have to "previously-calculate" the value of the work if they find willful infringement. It's not a two part question with the first being "what's the damage value, between $750-$30k?" and then "oh, and you can increase that by any amount up to $150k". Rather, once willfulness is shown, then the question is simply "what's the damage value, between $750-$150k?" Check out the jury instruction forms for Thomas or Tenenbaum. There is simply a single question of damages per work.
You've completely misread how the law is actually interpreted. The judge bases the award on the value of the work, not the person's culpability.
I'm really confused as to why you say this, considering you're replying to a post that merely includes two words, a link to a statute, and a quotation from the statute. The word "culpability" never appears in my post.
The culpability is what drives the award upwards. So for example, if the work has a calculated value of $5,000 and the court doesn't feel the infringement was intentional, it stays at $5,000 per work. But if it was deliberate, then they will multiply that by an arbitrary figure, based on how deliberate the judge feels the action was. This new figure caps at $150,000 per infringement. Also not quoted was the bench rules, which vary by each court, and would include how this 'arbitrary' math should be done; California appeals court may say you multiply by a value of 10 to 50... Federal court, maybe 50 to 5 billion. Without a copy of the bench rules, it's difficult to say how strongly the
Unfortunately, the law says that every time you share an MP3, god kills $150,000 worth of kittens. Statutory damages don't allow for any discretion on the part of the judge. Thank Congress for that.
Statutory Damages.—
(1)... [T]he copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just...
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200....
On what grounds would a "reasonable patent system" exclude it? It hasn't been shown to be anticipated or obvious in view of prior art, in spite of all of the efforts that have been thrown at it, so those wouldn't be reasonable grounds...
Because we were using the functionality for years before that. Just because there is no prior patent, does not mean that there is no prior art.
You may be under a misconception that only a prior patent counts as prior art to invalidate a patent - that's not true. Any publication (patent, thesis, advertisement, white paper, functional spec, internet post, etc.) or any product counts as prior art and can be used to show the patent is not new or is obvious. And despite thousands of dollars in reward money for finding proof, none was found - no publications, no piece of software using the functionality, nothing.
Slashdot Mirror
Also I've known lyrics to a song before but not the name. Being able to search the internet based on lyrics is what has allowed me to find a song I was after.
Reducing access to lyrics is reducing people's ability to find the name of a product they wish to buy.
Go read the article again. They're only going after unlicensed lyric sites - azlyrics.com will still exist.
Unlike many of the posters above who are saying that this will kill music sales because when they don't know the artist or song title, they search for lyrics, I actually read the article - they're targeting only unlicensed lyrics sites. The fully licensed azlyrics.com will still exist, as will lyricfind.com and musicmatch.com. In fact, it appears that the ones that are targeted are the ones that have tons of pop-ups, malware advertisements, redirecting scripts, etc. So, good.
A high-quality and detailed teardown of their own product? I think that's freaking awesome. And smart too - they know the success of the PS4 will depend on the early adopter, hard-core gamer, the type of person who has likely put together a home-grown PC gaming system and who would get excited about exactly this type of video. Well done Sony.
A detailed teardown was inevitable from someone - probably Ars Technica, for example. And that teardown comes with a review of Sony's architecture and decisions, and the review may not necessarily be entirely favorable. However, this way, the first teardown is accompanied by glowing descriptions of the hardware. Anything later is an also-ran, by definition, and will draw less eyeballs than it would have if it was first. The widest seen review now will be their own. More companies should do this.
Researchers at Cornell University are developing a co-active learning method, where humans can correct a robot's motions, showing it how to properly use objects such as knives. They use it for a robot performing grocery checkout tasks.
I believe using a knife at the grocery checkout is called armed robbery.
Any decent defence attorney will find little trouble pointing out that all pre-1997 search engines are prior art, since a search engine has always been an advertising machine. If I typed into Alta Vista, in 1996, a search for "books" and came up with any site related to books, Alta Vista has acted in the role of an advertising machine in directing me to that site.
You have to actually read the patent claims, not just the title. In particular, the claims require correlation of user profile data and search terms for determining the delivered data. In Alta Vista, searches were just based on your search terms, not your user profile - Bob didn't get different results from Alice. Accordingly, while Alta Vista is certainly relevant prior art that could be used in combination with other art to potentially invalidate the claims, alone, it doesn't do the job.
And this brings up an important distinction which can't be repeated often enough on Slashdot: "prior art" is defined as anything in the art which was known prior to the filing of the patent application. That's it. The Model T is prior art for the Tesla Roadster. The Wright Brothers plane is prior art for the Space Shuttle. The Antikythera mechanism is prior art for the Samsung Galaxy Gear watch.
What Slashdot users typically mean when they misuse the term is "anticipatory prior art", which is prior art that discloses everything in the claimed patent. If a patent claims A+B+C and a prior art document describes A+B+C, that's anticipatory prior art, and invalidates the patent by itself. On the other hand, if the prior art document describes only A+B, that's not anticipatory, even though it is prior art. The patent is still valid, at least over that one reference. If you then find another piece of prior art that describes B+C, and you could easily combine the two, then you've shown that the patent is obvious over the two references.
So, in short, saying "all pre-1997 search engines are prior art" is absolutely true, and absolutely meaningless. Of course they are. But do one or more of them, alone or in combination, teach or suggest each and every element of the claims? That's the real question.
OP here. I didn't say it was illegal (IANAL), I said it should be illegal. A consortium to develop new tech or something is reasonable. A consortium to play patent troll is not. As it is, patents are just government granted monopolies. Collusion (oops, I meant a consortium) to leverage those little monopolies into a big monopoly is grossly anti-competitive. Business laws should be about fostering competition, not hindering it.
Actually, it's the exact opposite - the DoJ's position is that patent pooling frequently has positive economic effects in avoiding litigation and enabling cross-licensing, and accordingly is usually not anti-competitive per se. It can be, but that mainly relies on other things - FRAND pools that include non-standard essential patents; different license pricing for competitors of pool participants; etc.
Abolish software and "business method" patents. They're not *things*, just ideas. They're not what patents were *created* to protect.
35 USC 101 ... states that whoever invents or discovers "any new and useful process [...] may obtain a patent therefor..." A process is not a *thing*, just an idea... but clearly, that is what patents were created to protect.
While I agree with you that patents ultimately monopolize the use of ideas rather than things, Cochrane v. Deener (94 US 780 - Supreme Court 1877) explained the term "process" as follows:
A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing.
Software and business methods obviously do not meet this standard. There are no "certain materials" to be transformed, and the goal is not to reduce them to a different state or thing. Only physical processes count as patentable subject matter.
Although you're correct about the 1877 case, it has since been expanded by both Congressional amendments to the statute in the 1952 act, and Supreme Court opinions - see Gottschalk v. Benson in 1972, noting in dicta: "It is said that the decision precludes a patent for any program servicing a computer. We do not so hold."; and of course, Bilski v. Kappos, which noted that Congress explicitly allowed patentability of business processes.
In particular, as the Supreme Court noted, the patent act includes no definition limiting "process" to "physical processes":
Section 100(b) provides that “[t]he term ‘process’ means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.” The Court is unaware of any “‘ordinary, contemporary, common meaning,’” Diehr, supra, at 182, of the definitional terms “process, art or method” that would require these terms to be tied to a machine or to transform an article... A categorical rule denying patent protection for “inventions in areas not contemplated by Congress... would frustrate the purposes of the patent law." Chakrabarty, 447 U.S., at 315.
Regarding business processes, they stated:
Section 101 similarly precludes the broad contention that the term “process” categorically excludes business methods. Section 101 similarly precludes the broad contention that the term “process” categorically excludes business methods... The argument that business methods are categorically outside of 101’s scope is further undermined by the fact that federal law explicitly contemplates the existence of at least some business method patents... A conclusion that business methods are not patentable in any circumstances would render 273 meaningless. This would violate the canon against interpreting any statutory provision in a manner that would render another provision superfluous.
And of course, the AIA passed, post-Bilski, without modifying 100, 101, or 273 to correct any misinterpretation of the Supreme Court in Bilski. It's another canon of statutory construction that where Congress has amended an act following judicial interpretation, but have not modified or countermanded that interpretation, they have approved it. Hence, no matter how you look at it, software and business methods are patent eligible (providing they are also new and nonobvious, and the claims do not merely recite an abstract idea, of course).
Abolish software and "business method" patents. They're not *things*, just ideas. They're not what patents were *created* to protect.
35 USC 101 defines patent eligible subject matter, and states that whoever invents or discovers "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor..." A process is not a *thing*, just an idea... but clearly, that is what patents were created to protect.
That's a failing of Google. They're the kings of search, so everything should be searchable, right? So they extended that to everything should be searched - always. Want to know who batted third in the fourth game of the World Series? Search for it. Want to know who sent you that email? Search for them. Want to run a program? Search for it.
What they don't acknowledge is that people grow habits. Once we've learned a thing, we can repeat the thing pretty easily. I don't have to "search" for Excel on my PC, I know that if I click down here, then up and over here, I see the little [X~] icon. I don't open the search bar and type Excel. And I never open the search bar and type Excel.
You should try a Mac. I hit command-space and type "exc" and hit return and Excel launches. With Spotlight indexing the drive, why bother actually trying to click through folders if I know the name of what I'm looking for, or even a word in the file?
Probably, but because it was already imagined back in the days of VHS, but simply wasn't practical with that technology.
Great, now you're not using hindsight: simply find a reference from back in the days of VHS that describes everything in the TiVo patent claims, and you've invalidated them.
And if the patent was filed in, say, 2003, where do you find 20 programmers who have been locked in a closet for the past decade such that their knowledge of the art is limited to what existed at the time of filing? Because everything is obvious in hindsight, if you give it sufficient time. I bet almost any Slashdotter in here could draw a spec for a simple internal combustion engine or steam engine on a napkin... so therefore those shouldn't have been patentable in the 1800s?
There are things that are obvious in hindsight - they are obvious once you see the invention. There are other things that are obvious because of the progress of things around us. I'd say a TiVo would be pretty obvious today, even if we never had seen one.
So, should the patent office have rejected TiVo's patents back in the 1990s, because "at some point in the unforeseen future, this may become obvious"?
I've never understood how you can file suit without explicitly listing this.
They currently do list the patents, but not necessarily the claims or products. For example, a complaint may say that the defendant is "infringing one or more claims of US Patent No. blahblahblah through manufacture of products related to blahblahblah, including at least product name, product name, and product name." The reason for such ambiguity is because this is all pre-discovery, and if you need to examine the source code to determine if something infringes claim 2 but not claim 3, you need access to the code.
By the time anything gets to trial, it's very much fixed to certain patents, certain claims, and certain product models.
Agreed. The solution is to use statute to redefine "obviousness". That standard should be redefined in statute to match the common understanding of that word instead of the absurd legal definition. You know that thing about a patent not being valid if a person of ordinary skill in the art could reproduce it? To prove that all they should have to do is put twenty programmers on the stand and if ten of them can come up with that solution, then it's invalid.
And if the patent was filed in, say, 2003, where do you find 20 programmers who have been locked in a closet for the past decade such that their knowledge of the art is limited to what existed at the time of filing? Because everything is obvious in hindsight, if you give it sufficient time. I bet almost any Slashdotter in here could draw a spec for a simple internal combustion engine or steam engine on a napkin... so therefore those shouldn't have been patentable in the 1800s?
It is 'free' if you own OSX. Therefore it is a free update. In terms of the number of changes it may be larger, but in actuality it is no different than windows 8.1 or a Service Pack.
It's more like an upgrade from Windows 7 or XP to Windows 8 - it's a complete OS installer, not a mere upgrade, and you can do a clean install.
4.Introduce a system where anyone (even if they aren't using/violating the patent) can submit prior art to the patent office for review. The patent office would then review that prior art. If the prior art is found to be genuine and the patent is invalidated, the holder of the patent must pay the patent office money to cover the review. If the prior art is not genuine, the entity that submitted the prior art has to pay.
I like this idea, but just to avoid confusion, I don't think the word you're looking for is "genuine", but rather "invalidating". The Model T Ford is certainly "genuine" prior art for the Tesla Model S - it's prior, it's in the art, and it's certainly real. But it wouldn't show that a patent on the electric drive train or charging system was anticipated or obvious. People frequently use the term "prior art" - as in "this patent is stupid, look, I found prior art" - but what they really mean is "anticipatory prior art" or prior art that discloses every limitation of the claims. That's just a subset of all prior art out there, which is literally everything in the relevant industry that was published or produced.
The patent office is doing their job. They are charged with recording and maintaining records of patents. When you file, you swear, under oath, that the patent you are filing does not already exist and is not already in prior practice. The people who file patents honestly do patent searches (that is why the lawyers get the big bucks) before they file the patent.
If you file a patent of something that already exists or has already been patented, you are expected to be taken to court to have your patent invalidated. The rules are setup in a way that the courts can deal with patent issues, not a government bureaucrat sitting in an office.
But, that is how the system was setup and how the office is charged in running.
I believe you may be confused, or may be referring to another country, such as Hong Kong. Basically, there are two systems for patents. The first is a registration-only system in which the patent office does nothing other than "record and maintain records". Hong Kong has this. Australia also has invention registrations that are separate from patents, and are merely recorded.
The second is an examination system in which the patent office does a full search and examination of the patent application, typically (around 90% of the time in the US) rejecting the patent application initially, and leaving it to the inventor to amend and narrow the claims in response before the patent is finally allowed. The "government bureaucrats sitting in an office" in these systems are scientists and engineers. Frequently in these systems, the patent attorney does not do prior art searches, because the patent examiner is going to do his or her own search anyway and why would he or she accept ours?
This is not to say that the examination systems are perfect, but just that the office is doing more than just recording and maintaining records.
I'd argue, the loser should be on the hook for the winner's expenses by default. Currently the court may make them responsible, but the winner typically needs to specifically ask for it — and it should be the opposite. In all cases: civil and criminal (if the accused is acquitted, the prosecuting office needs to cough up).
At least, this should apply (whether the subject is patent or not), when the losing the side is the one, that initiated the proceedings in the first place.
This bit also seems generic — if such a disclosure is a good idea (and I am not sure), then why limit it to just patent cases?
Of course, this also means that if a small inventor sues a giant company for patent infringement, all the company has to do is hire the most expensive legal team around and run up costs as much as possible, to make the possibility of a loss so terrifying for the inventor that they'll settle.
If a flight attendant sees you using a Knee Defender, you will be required to remove it and it will be confiscated.
They can't see it, considering my knees block the view.
Ah, but it's not just a copy. It's a copy of something "on the Internet" and/or "in a browser", which according to the US Parent Office is almost certainly innovation.
Contrary to popular Slashdot belief, there aren't any patents with claims that recite prior art steps plus "on the Internet" with that being the point of novelty. There are two reasons for this myth, both based out of misunderstandings.
First, the doctrine of claim differentiation says that if you have a first claim that says "on a network" and a dependent claim that says "wherein the network is the Internet," then by definition, the networks in the first claim must include both the Internet and other networks. But this has nothing to do with patentability, just infringement, and no patent was ever granted because of a dependent claim like that.
Second, when you simplify or paraphrase a patent, you are inherently describing it in terms that you already know and understand: an automobile is just a horseless carriage. An electric car is a horseless carriage with a battery. An airplane is a horseless carriage with wings. Clearly those are just combinations of existing prior art, right? But that's irrelevant if your claims are actually to internal combustion engines, fuel cells, hybrid transmissions, ramjets, etc. So, while something may look like "[x] old thing, but on a computer," the question is whether that's just your paraphrased version, or whether that's what's actually claimed - and the answer is that no patent has ever been granted with the latter.
Do you have an citation for this alleged "bench rule multiplier"? In all my years of IP practice - and yes, IAAL - I have never encountered such a thing. Did you pull it from a news article, or a copy of some local district rules, or possibly your ass?
I was attempting to simplify shit that's so complex that even lawyers like yourself routinely get lost in it in a way that a layperson could understand. You'll forgive me if I don't vomit up a twenty page legal brief on the subject, given that the audience here does not consist entirely of people who have been through law school. I thought that would be plainly obvious to everyone, but I didn't consider that I might be dealing with a lawyer who makes a living off making things unnecessarily complex, and that attempting to explain these self-induced complexities in simpler terms might cause him to shit a massive brick of text on an internet forum.
In other words, "no, I pulled it from my ass." There is no arbitrary multiplier preestablished in any bench rule. The fact finder - typically the jury - is given a range of damages, either $750-$30k or $750-$150k depending on what has been determined for willfulness, and selects from within that range as they feel appropriate. No values are multiplied. You may have been confused because of the phrase "triple damages", which are punitive damages applied according to statutes in other areas of law. They don't exist within copyright law.
Friendly bit of free advice: in the future, when someone corrects a false statement you've made, try saying, "thank you, I didn't know that until now," rather than calling them a troll. It will increase your credibility rather than destroying it.
I'm not even going to dignify your wall of text troll with a response.
I'm sorry reading more than a paragraph is difficult for you. Allow me to jump to just the point that I wanted a response from you on:
Also not quoted was the bench rules, which vary by each court, and would include how this 'arbitrary' math should be done; California appeals court may say you multiply by a value of 10 to 50... Federal court, maybe 50 to 5 billion. Without a copy of the bench rules, it's difficult to say how strongly the judge felt about your culpability.
This is all incorrect... There's also no "arbitrary figure" in bench rules that a jury or judge determined damage award is multiplied by. Frankly, I have no idea what you're talking about here. Do you have any sort of source for this alleged "bench rule multiplier"? It's certainly not in either the Thomas or Tenenbaum trials.
Do you have an citation for this alleged "bench rule multiplier"? In all my years of IP practice - and yes, IAAL - I have never encountered such a thing. Did you pull it from a news article, or a copy of some local district rules, or possibly your ass?
Your statement is technically correct
The best kind of correct!
... but it misses the intended meaning:
While there is court discretion, there is a statutory minimum. The problem is that the law doesn't state what the unit of measure for a single infringement is. So when the unit of measure is one download of one song, a $200 minimum is unreasonable. That would be $3000 for a single download of a single audio CD. If the file was torrented, the dollar amount increases exponentially as the file is shared.
That's not true - or, technically, not true any more (and hasn't been true since the 1970s). From the statute quoted above:
[T]he copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just...
The unit of measure is "one work", and applies to any and all acts of infringement with respect to that work. For example, if you download a copy of the song once, that's one infringement. If you make a copy for your friend, that's another. If you upload it to thousands of people, that's thousands of infringements... but all of these are "with respect to any one work", and you are only liable for $750-$30k (or up to $150k if the infringement was willful).
It was not always thus - before the 1976 Copyright Act, statutory damages were per act of infringement. Make one copy, one damage award. Make ten copies, ten damage awards. In 1976, this changed to the "per work" version above.
That is how Jamie Thomas wound-up with a settlement of over $2000 per song.
$9,250 per song, in fact, which happens to be very close to the geometric mean of $750-$150000.
Actually, this isn't just the judge. In Capitol v. Thomas, a jury repeatedly awarded more than the judge(s) did in every trial along the way. Because it's not just about how much damage you caused, but how much deterrent value a higher award brings. There were several juries, and they also awarded wildly different amounts; Each time the judge reduced it post-trial.
It can be inferred from this that when ordinary people review these cases, they judge them much more harshly than the judge does. This whole 'discretion' thing you're on about is not only very likely in play here, it's probably more generous than the average person would be given the facts of the case.
The judge, however, was reversed repeatedly by the appeals court, because the statute doesn't allowed the judge to overrule the jury in that manner. The statute says that it's the discretion of the court, not a unilateral reversal by one member of the court over the others.
Statutory damages are in a range of, as you so nicely quoted, go from $750 to $30,000 -- the judge can't pick a number outside of those ranges. And in the case of 17 USC 504(c), you only quoted part of it.
I didn't think it was relevant to discuss libraries or broadcasters. If you find fault with how I edited the quote, I did provide the link, too.
$750-30,000 is the figure quoted for infringement period. In other words, knowledge or no knowledge, that's how much you're getting slapped with.
Not so - see "innocent infringement", with has a penalty of $200 per work. Specifically: "in a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright." If you have no knowledge that it was infringement and you can prove that, then you are not getting hit with the base range of damages.
For this portion, the judge doesn't consider motive -- only and solely the actual value of the work. Should the court find you did so wilfully, they can then go above that previously-calculated amount. Which is why sharing mixes of the boy band in your neighbor's garage is going to get you less of a fine than sharing Michael Jackson's collected works (there's no accounting for taste either in law, unfortunately!).
The court does not have to "previously-calculate" the value of the work if they find willful infringement. It's not a two part question with the first being "what's the damage value, between $750-$30k?" and then "oh, and you can increase that by any amount up to $150k". Rather, once willfulness is shown, then the question is simply "what's the damage value, between $750-$150k?" Check out the jury instruction forms for Thomas or Tenenbaum. There is simply a single question of damages per work.
You've completely misread how the law is actually interpreted. The judge bases the award on the value of the work, not the person's culpability.
I'm really confused as to why you say this, considering you're replying to a post that merely includes two words, a link to a statute, and a quotation from the statute. The word "culpability" never appears in my post.
The culpability is what drives the award upwards. So for example, if the work has a calculated value of $5,000 and the court doesn't feel the infringement was intentional, it stays at $5,000 per work. But if it was deliberate, then they will multiply that by an arbitrary figure, based on how deliberate the judge feels the action was. This new figure caps at $150,000 per infringement. Also not quoted was the bench rules, which vary by each court, and would include how this 'arbitrary' math should be done; California appeals court may say you multiply by a value of 10 to 50... Federal court, maybe 50 to 5 billion. Without a copy of the bench rules, it's difficult to say how strongly the
Unfortunately, the law says that every time you share an MP3, god kills $150,000 worth of kittens. Statutory damages don't allow for any discretion on the part of the judge. Thank Congress for that.
Not true. 17 USC 504(c):
Statutory Damages.— ... [T]he copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just...
(1)
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200....
On what grounds would a "reasonable patent system" exclude it? It hasn't been shown to be anticipated or obvious in view of prior art, in spite of all of the efforts that have been thrown at it, so those wouldn't be reasonable grounds...
Because we were using the functionality for years before that. Just because there is no prior patent, does not mean that there is no prior art.
You may be under a misconception that only a prior patent counts as prior art to invalidate a patent - that's not true. Any publication (patent, thesis, advertisement, white paper, functional spec, internet post, etc.) or any product counts as prior art and can be used to show the patent is not new or is obvious. And despite thousands of dollars in reward money for finding proof, none was found - no publications, no piece of software using the functionality, nothing.