Simple ownership of the patent is not enough. If you sue everyone and his goat using an unreasonably broad interpretation of the patent and carefully tailor the amount to be under the cost to successfully defend, you may well run afoul of a number of laws.
Not sure why both you and another poster misread my post, but with 2 vs. 1, I have to assume the misstatement was on my part. Allow me to attempt it again:
They own the patents in question, and if there's any reasonable argument that the defendant infringes, even if you have to make a bunch of factual assumptions in favor of the plaintiff (those factual assumptions would be resolved at trial by the jury), then the suit isn't groundless.
My reference to ownership is because, with regard to the recent Righthaven copyright infringement, it did appear that the defendants infringed the copyrights... but Righthaven didn't own them, so when they brought suit, it was per se frivolous. You have to own the IP rights and have a reasonable argument for infringement... but if you do, then it's not a groundless suit.
And if your suit is not groundless, then "carefully tailoring the amount [of an offered settlement] to be under the cost to successfully defend" is not illegal at all. If you believe the defendant infringes, and you're going to offer them a settlement, why wouldn't you ask for the most you reasonably could? If you ask for more than it would cost to defend the suit, they won't take the settlement, and if you ask for significantly less, then you're leaving money on the table.
I think many people were confused by the Prenda Law sanctions, where the judge mentioned that the amount of settlements were calculated to be under the cost of defending them... That wasn't a factor in whether they deserved sanctions, period; it was a factor in what the amount of the sanctions would be. The sanctions were due to their fraud on the court, not the settlement amounts.
Maybe you resort to ad hominems in the subject line, but I'll stick to objective analysis. We'll let others decide which one of us has more credibility.
Someone who purchases a patent solely for the purpose of extracting legal settlements IS engaging in a form of racketeering. The legal system merely has not caught up to what is actually occuring.
Translation: "I acknowledge that the legal definition of racketeering isn't what's going on here, but I'm still going to say it's a form of racketeering and the laws just aren't right."
And while that may be a fine policy argument to change the legal definition of rackeetering, when someone points out as I did that, no, it's not rackeetering, calling them a troll is a childish response. Particularly when you then admit they're entirely correct.
In many cases there is no reasonable argument that the "defendant" infringes because the patent should never have been granted in the first place.
I don't think you understand the concept of the burden of proof. The burden is on the defendant to show that a patent should never have been granted, as patents are presumed valid. As a result, the plaintiff can't possibly fail to make a prima facie case of infringement in the complaint "because the patent should never have been granted".
The mere fact that they own a particular patent is insufficient. There has to be a reasonable argument that somehow the defendant might possibly infringe on said patent.
Yes, and that's separate from invalidity. You can tell because the words "infringement" and "invalid" are spelled and pronounced differently. I never said that "owning a particular patent is sufficient", I said that "they own the patents in question, and if there's any reasonable argument that the defendant infringes, then the suit isn't groundless." The point of the former clause is that if you don't own the patents, then you can't bring suit, even if the defendant gleefully infringes while flipping off your mom. Remember Righthaven and the copyright suits? But that's merely one predicate, rather than this goalpost-shifting you're engaging in.
Additionally you do not get to make endless assumptions in favor of the plaintiff otherwise no suit could ever be considered groundless.
At summary judgement to dismiss a complaint, all factual disputes must be presumed in favor of the non-moving party. And suits can still be considered groundless if, even with those presumptions, the plaintiff still can't establish a prima facie case. For example, if it's undisputed that I don't own a patent, then even if we presume that the patent is valid and that you infringe, any suit by me would be groundless. Am I going too fast for you?
And yes, you get to make endless assumptions of any disputed facts at summary judgement, because that's how summary judgement works: "Even if my opponent is correct about every thing we disagree on, they still lose." If you didn't do that, then there's a possibility that the outcome could change if the fact turns a different way, and so you have to go to a full trial.
In some cases the patent trolls have legitimate cases. Often they do not and you can be damn sure they know (or should know) the difference. The legal system is not supposed to be a source of profit. It is supposed to resolve genuine disputes over material issues.
Licenses are a source of profit. If someone refuses to pay for a license that they're required to purchase, then it's a genuine dispute over material issues. That may result in profit, but it's the license that is the source of profit, not the legal system.
And many of these suits ARE groundless.
But if it isn't, then it's not extortion, and if it's not extortion, then there's no pattern of racketeering activity. But, oh, wait, following the statute is "speaking like a patent
Suing for hate speech makes about as much sense as trying to apply RICO to completely legal activities.
Extortion is not a "completely legal activity". Furthermore neither is barratry and racketeering, both of which arguably apply in the case of patent trolls.
No, none of the above apply. They own the patents in question, and if there's any reasonable argument that the defendant infringes, even if you have to make a bunch of factual assumptions in favor of the plaintiff (those factual assumptions would be resolved at trial by the jury), then the suit isn't groundless. If the suit is not groundless, then it's not barratry. Offering to settle a suit that's not groundless is not extortion. And finally, with no underlying extortion, it's not racketeering.
There are a variety of copyright troll cases that are in the works now where the plaintiffs have either had to pay legal fees for the defense or post bond in case they lose. In the former case, $20-50k in defense fees have been awarded before the case even went to trial. Other cases bonds of $250k were asked for. And these are for "simple" copyright infringement cases, not a patent fight.
Yes, but I'd take those with a grain of salt - specifically, the Prenda copyright cases had bonds and sanctions with payment to the defense attorneys because of some truly outrageous behavior, including fraud on the court, forged signatures, etc. The Righthaven cases had an issue where Righthaven didn't actually own the copyrights they claimed to be asserting. There are tons of other copyright cases that haven't required anything of the sort - see, for example, the Jammie Thomas and Joel Tenenbaum RIAA cases.
Here, they certainly own the patents - the assignment is in the public records at the USPTO - and there's no indication that they've committed any fraud... yet. There's no reason to hold your breath waiting for news that they'll have to post a bond for defense fees.
A recent study by the Richmond School of Law found that the USPTO's actual grant rate is currently running at about 89%. In 2001, it was as high as 99%. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2225781 page 9. In 2001, it didn't matter if an application was overbroad, obvious, trivial, a duplicate, or unreasonable, they ALL got granted.
On the contrary, 80-90% of patents are initially rejected.. Yes, the rate at which patents are eventually granted is 90%, but that's after they've been substantially amended and narrowed. Pointing at the eventual grant rate and claiming "it didn't matter if an application was overbroad, obvious, trivial, a duplicate, or unreasonable" while hiding the rejection rate is disingenuous.
Furthermore, the fact that you mention "duplicate" indicates you may not actually know what you're talking about. There are no duplicate patents, as double patenting is a rejection under 35 USC 101. There are continuation applications, in which one application gets filed and then later, another application with the same specification, title, and figures gets filed, claiming priority to the first one. So, to someone who doesn't understand what's going on, they may look like duplicates... however, (i) the claims are different, and (ii) the second application, even though filed later, expires on the same day the first one expires. They're really just offshoots of the same application, and not "duplicates" at all. My guess is that you heard that terrible episode of This American Life where they mentioned that several applications (all continuations of a first application) had the same name, and were as equally confused as their "journalists".
This also explains your later complaint:
6) Finally, I suggest that it is a mistake to allow patent applicants to modify or extend their patents after submission. This complicates the patent pipeline. It facilitates ‘submarine’ patents. It enables capturing Standards. It also enables gaming the patent system. Reform must simplify and reduce the patent process. Patents should be quickly evaluated. Most should be denied. If an applicant wishes to modify a denied patent, they should alter it, resubmit, and pay a new filing fee.
None of this is true - patent applications cannot be extended after submission, and any entry of additional material is "new matter" and rejected immediately. Applications can currently be altered, resubmitted, and filed with a new filing fee, and then they have the same title, as mentioned above when you were complaining about duplicates. Submarine patents are an entirely different thing, where a patent is granted and first published years after filing. Patents are now published after 18 months, and so submarine patents are mostly a thing of the past.
Most of your complaints are based on misunderstandings of the process and half-truths or outright falsehoods spread by poor journalists. A few minutes of research before you post would clarify them.
You're missing the point. A lot of this was unintentional. They made the USPTO run on fees that were charged for patents which gave the USPTO and incentive to rubber stamp patents while not receiving sufficient funding to cover the cost of having patent examiners that could do the investigation that they used to do.
If it was true that the USPTO was just rubber stamping patents, then you'd expect to see close to a 100% allowance rate, no? Instead, you get about an 80-90% rejection rate, depending on art group.
In reality, it's a bit more complicated than you think: the USPTO runs on fees, but those fees are for application filing, searching, examination, continued examination after final rejection, issuance, and maintenance fees. Only the last two give an incentive to rubber stamp patents - the others give an incentive to reject patents.
Furthermore, the USPTO is full of humans, with their own personal interests. Specifically, the Examiners are graded for promotion/bonuses on a point system in which they earn points for examining an application, points for rejecting it, and points for issuing it - they have an incentive to initially reject patents, even just to allow them after getting a request for continued examination, because they get an extra couple points. That also means extra fees for the PTO, incidentally. The Examiners, however, get no points for maintenance fees, so their interests are in drawing out prosecution to a certain point, rather than immediately rubber stamping everything allowed.
What needs to happen is that the USPTO needs to go back to being a government service the user fees need to be based upon the amount of time and energy it takes to deal with the application.
They are - see the bit about continued examination fees. More time spent = more money.
And while we're at it, the duration of the patent period should go from the point where the first application is received to a reasonable period after that. For technology 7 years is likely more than adequate as a lot of that IP is no longer of value several years later.
The problem here is that now you need Congress passing different laws for patent terms for every single industry. And when there's a new industry - like online retail - is that really a "new" industry that should deserve a short 5 year patent term; just an offshoot of an older internet industry that deserves a 10 year patent term; an offshoot of computers in general, deserving a 15 year term; or an offshoot of electrical engineering, deserving a full 20 year term? And how do you determine this on day one so that you can put it in the statutes, rather than waiting 5 years to determine how quickly the new industry advances?
Similarly, say you invent a new computer control sequence for car engines that significantly improves mpg efficiency: is that an automotive advancement with a 20 year term, or a software advancement with a 5 year term? And while maybe you can pick an answer and justify it, what's the general, objective rule that you can apply to any new invention to determine what its term should be?
This bit, gleaned from the linked slashdot interview, sums it up:
Can you explain?
by trcooper
Can you explain, in terms I could tell the average person, how your patent is novel enough that anyone who wants to distribute audio over the internet should license it from you? I'd appreciate it if you could address how the distributions of podcasts today widely differs from downloading audio files in 1995 and how your patent help change this.
Logan: Trcooper, this is one of those of questions that could get me in a boatload of troubleâ"with my lawyer, that is. Any comments I make regarding the claims and how they are different from previous systems, can and will be used against me in court. So Iâ(TM)ll have to take a pass on this one.
This bit, gleaned from the recent television interview, sums it up:
Can you explain why you claim you're innocent of the murder you've been accused of?
Defendant: My lawyer has told me not to answer any questions, because anything I say may be twisted or used against me in court. So I'll have to take a pass on this one.
Ah ha! Clearly he did it and there's no need for trials!
The process of vulcanization of rubber is approximately "raw rubber plus sulfur plus heat equals material with new properties". You have created something new by this process. The new physical material has different properties.
Sure, but just so that you're not moving the goalposts, realize that we're talking about a patent on the process of vulcanization, not the physical rubber. And that process is simply a mathematical algorithm, right?
Gear ratios are properties of physical objects that have a mathematical relationship. You don't patent a ratio, you patent a mechanism that may use those ratios to some effect.
You can also patent the method of transferring power via those gears (if it's a new and nonobvious process, of course). It's not just the machine that's patentable, but also the process... even though the process is merely a mathematical algorithm.
If the mechanism you have invented is a universal gearing system, then should someone who picks a particular gearing ratio because it is useful for some purpose that nobody noticed before deserve a patent on that ratio? I don't think that they should.
Why not? If they invented a brand new use for the ratio that no one ever noticed before, why shouldn't they receive a patent? They say build a better mousetrap, and the world will beat a path to your door... you're saying "pfff, it's just wood and metal and springy bits. Nothing new about that."
...Good thing no one writes a patent claim that says "A method, comprising controlling computer hardware, period, the end" then, eh?...
It's extremely frustrating to me that people *do* write those claims...
[Citation needed].
... and don't have anyone pointing out that general purpose computers are designed to be able to carry out *any* calculation.
Sure, a Universal Turing Machine can carry out any calculation, by definition. So why didn't we have GTA V thirty years ago? Was it because people hadn't figured out to make those calculations yet? And it's not mere hardware limitations, or there'd have been no advances in game technology from the very first PS3 games to the newest ones, for example. No, people have figured out new and better ways to use the hardware that were never conceived of when the hardware was first built.
The processors, memory controllers, caches, etc that make up the computer are all patentable. They do stuff. Software is just math that controls how they turn a given input into an output.
A furnace does stuff. The timing algorithm for vulcanizing your rubber is just math that controls how that furnace will turn a given input into an output. But you agree that that's patentable.
I write software every day.
That was obvious. I'll never understand why programmers are so disparaging of their own inventions, but it's definitely common.
It's not magic, and absent a computer, you could still generate the output of a program, just not nearly as fast (which is why the general purpose computer is such a great invention).
Sure, but it's like that old joke about going to the doctor with an injury, he hits you with a hammer
and cures it, and gives you a bill for $500. $5 is for the hammer, the other $495 are knowing where to hit. Without the novel and innovative algorithm, that computer - or you with your pen and paper - just sit there doing nothing. So, while the computer, or your pen and paper, can be used to calculate the most amazing things ever, the mere existence of those tools doesn't mean that the resulting calculations are obvious.
...Here's a simple question - imagine the most novel, non-obvious bit of software ever. Like, some brand new algorithm that can lossles
...The law is quite clear - if you come up with a new and nonobvious use for a known machine, such as a computer, then you have invented a patent eligible process.
Right. Except that computers have a single purpose...they do math.
This is not a new use of a known process.
You mention vulcanizing rubber. Furnaces have a single purpose - they heat things. Therefore, vulcanizing rubber isn't a new use of a known process?
Also, "doing math" isn't what's claimed, but rather specific operations that haven't been done before. They are, by definition, new uses of the older technologies.
This is saying "you're not allowed to write a computer program that does something in a certain instance". The courts are (again) failing to grasp the way that computers function. Vulcanization (of rubber) is a process. A computer program is an algorithm...math.
You're apparently not a physicist. Vulcanization of rubber is an algorithm... math. Gear ratios are algorithms... math. Every process or machine in the physical universe can be described mathematically. But that doesn't mean that a patent on an engine is attempting to claim all math, any more than a patent on a software method is attempting to claim all math.
The fact that you can control computer hardware (like a network connection) with software is about as far from non-obvious and new as you can get.
Good thing no one writes a patent claim that says "A method, comprising controlling computer hardware, period, the end" then, eh?
But really, this shows that your understanding of the issues is confused. Patent eligibility under 35 USC 101 is different from novelty under 35 USC 102 or obviousness under 35 USC 103. They're three different, independent requirements. You're trying to claim that all software should be exempt from patent eligibility under 35 USC 101... because it's all obvious under 35 USC 103? That simply mixes up two different statutes, two different bodies of case law, two different logical tests, etc.
Here's a simple question - imagine the most novel, non-obvious bit of software ever. Like, some brand new algorithm that can losslessly compress even random data by 99%. Go nuts with imagining the details - point is, it's a revolutionary bit of code that no one has ever thought of, and it wins billions of awards and the keys to the city. Should it still be unpatentable, merely because it's software? That's the issue about patent eligibility under 35 USC 101: should software, as an industry, be ineligible for patentability, regardless of how innovative or inventive something is.
> while most legal people are not conversant in technology, all patent attorneys are - the proper scientific or engineering background is a requirement to sit for the patent bar exam.
You're effectively trying to claim that ANY engineer is qualified to be an expert witness on ANY engineering discipline.
Except for the fact that I never said that and it's impossible to read my words to say that, and the fact that my post was specifically arguing that most PEs would not be qualified to discuss networking, yes. You sure caught me.
And that says "The first spanning tree protocol was invented in 1985" which predates the earliest patent, therefore is prior art and invalidates the entire lawsuit. Why is this still in court?
Does the spanning tree protocol include each and every element in the patent claims? If you can literally make a table with each line of the claim on one side and a corresponding quote from the spanning tree protocol documentation on the other side, then it does invalidate the patent. However, if there's anything missing, then while it's relevant prior art, it's not anticipatory prior art.
Am I going to look at those patent numbers? No ! I don't want to get get a migraine headache since many modern IT patents are written in "legalese" such that someone with a Professional Engineering (yes a real one) background who is actually conversant with the field has a hard time understanding the words. Of course the opposite applies since most legal people can understand the words but not the context.
Considering that most PEs are civil engineers and that while EE is a valid discipline for the PE, they tend to be electrical system designers, I'm not sure why you think that that's a helpful background here. For example, very few IT people are PEs, simply because (a) it doesn't apply; and (b) they can't hack the necessary math and physics. Additionally, while most legal people are not conversant in technology, all patent attorneys are - the proper scientific or engineering background is a requirement to sit for the patent bar exam.
I particularly like fig 1c which basically a stylised drawing of the USA (well worth the LOL look) - see here and click on fig "1c" of Images which is the second image from the left.
Not sure why you think that's lol-worthy. The patent describes a system for self-healing networks such as the nationwide telecommunications backbones that go from major city to major city... Accordingly, any geographical network diagram of an example network will inevitably look like the country it's using for the example. Are you suuuure you're a PE?
Trying not to have an aneurysm...*why* in the world do courts continue to view software as patentable subject matter. The communications nodes are general-purpose computers with networking hardware attached. They have an operating system that allows for the switching of communications lines. Now there's a rash of lawsuits because the courts are too dimwitted to understand that software plus computer != invention/new machine.
No, the courts are following the law. A new and nonobvious use of a known machine is a patentable invention. Specifically, 35 USC 101 says "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, subject to the conditions and requirements of this title." and 35 USC 100 defines a process as "The term “process” means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material."
The law is quite clear - if you come up with a new and nonobvious use for a known machine, such as a computer, then you have invented a patent eligible process.
(IIRC at this point Motorola countersued in Germany and won a temporary injunction on sales, that was overruled by an US judge. Apparently the US justice system overrules the european courts, but that's nothing new, I guess.)
It's not that the US court overrules the European courts, but rather that the order of suits means that the first one gets resolved first. If I sue you for breach of contract in Massachusetts, you can't run to California and quickly file suit against me for the same transaction (well, you can, but it will be immediately dismissed and/or transferred to the Massachusetts trial). That sort of forum-shopping by a defendant simply isn't allowed, in the interest of having trials come to actual conclusions.
So, in this case, MS sued Motorola in the US. Motorola ran to Germany and filed a suit asking for a temporary injunction. That filing was improper, because a suit on the issue was already underway. Accordingly, the US judge ordered Motorola not to follow through with any efforts to enforce the German injunction (can't post a bond, can't file suit asking for damages for breach of the injunction, etc.)
I'd expect to see the exact same situation if it were a German court where the suit was first filed, and someone ran to the US to get a temporary injunction: the German court would properly order that someone to not enforce their injunction. It's not about US vs. Europe, but about the first lawsuit being superior to any later forum shopping attempts.
As is the case with increasing frequency, one is left to wonder about the implications intellectual property claims have for free speech when they can be applied to so public a figure as Dr. King.
Sorry, Subby, but no, "free speech" doesn't mean you can freely appropriate someone's work just because they're a "public figure". See, the "free" part is about their freedom from persecution, not your cost of royalties when you put their speech on t-shirts.
Anyway... a patent was recently awarded because someone figured out how to use the speaker/mic combo on a mobile phone to transmit data acoustically. You know, like... through the air and stuff. For credit card transactions. You might well guess... they got a patent.
Nevermind that this technology debuted in the 1960s, pretty much right after the second computer was built and someone got the idea that they should be able to exchange data... and look, here's this phone thingie...
I'm pretty sure they weren't using mobile phones in the 1960s for communicating credit card transactions, and the acoustic couplers they used were really sensitive to environmental noise, hence the data rates measured in baud. Maybe - and I'm going out on a limb here - just maybe, this is a different implementation than they had in the 1960s?
"But the basic idea is the same!" you cry... to which I point out that in every Slashdot story when someone talks about patenting an idea, people rush to correct them and exclaim that you can't patent an idea, just an implementation. Well, if the implementation is new and nonobvious and you're not trying to claim the idea, then who cares if the idea came before. Shiat, we've had "ideas" for teleportation, warp drives, and time travel for decades. Are you trying to claim that any successful implementation of those would be obvious?
Both sides in the litigation admit that if Apple routes its FaceTime calls through relay servers, it will avoid infringing the VirnetX patents. Once Apple was found to be infringing—and realized it could end up paying an ongoing royalty for using FaceTime—the company redesigned the system so that all FaceTime calls would rely on relay servers. Lease believes the switch happened in April.
So, from that, it appears that Apple infringed up until April, but no longer does.
Meanwhile, Apple has handed over its customer service logs from April through mid-August to VirnetX's attorneys. At the August 15 hearing, a VirnetX lawyer stated that Apple had logged "over half a million calls" complaining about the quality of FaceTime, according to Lease.
If that's accurate, the data will bolster VirnetX's arguments that its patents are technologically significant, hard to work around, and deserve a high royalty rate.
And if the customers are complaining because it currently uses the sucky work-around, then that also indicates that Apple stopped infringing in April.
The judge and lawyers present at the hearing didn't discuss numbers regarding what a reasonable ongoing royalty might be, but VirnetX is asking for royalty payments of more than $700 million for the ongoing use of FaceTime, according to Lease.
... so why would there be ongoing royalties? If you stop using someone's patented improvement and return to using the previous, public domain system, you shouldn't have to keep paying them royalties. This would be like if someone patented a better mousetrap, and then when you stopped using it, they also wanted you to pay a royalty for owning a cat.
On Tuesday, however, Microsoft confirmed that although Windows 8.1 has reached RTM, subscribers to MSDN will not get the final code until the public does on Oct. 17, saying it was not finished.
What the fuck. No. Words mean things, and "release to manufacturing" means that the software is ready for Releasing To Manufacturing. It doesn't mean "beta 15", or "we think this might be ready", or "release candidate". It means that it's ready to ship and that this is what will be going out the door on launch day.
Google's infinite betas are a bit of mild industry humor, but "beta" doesn't have an inherent definition. You can stretch it to justify almost anything. But "RTM", "release candidate", and others have very specific, unambiguous meanings. If it's not finished, it's not RTM no matter who the hell says it is.
... and yet, at the same time, if you pick up a brand new PS3 or XBox game on the release date and shove it in your console, the first thing it does is download an update. People have come to not only understand day-1 patches, but almost expect them. And yes, that sucks for developers, because while you and your customers may be fine with a day-1 patch of your software as the price of install, you still need to write that patch on a stable code base.
Meanwhile, another judge ruled that Xio, although using none of Tetris's code, still violates copyright because it infringes on the core concept or rules of the games. Copyright strengthened.
That's not what the judge ruled at all. It wasn't the "core concept" or "rules", since those are not covered by copyright; rather, the judge ruled that Xio infringed because of the creative, aesthetic and design features. From your link:
Judge Wolfson took a detailed look at both the Tetris and Mino games in an effort to identify those items that were protected under the law, and there were a number of things that stood out in the Judge’s view. First of all, when placed side by side, various screenshots of the two games were just about impossible to differentiate. The Court stated (and I love this quote, by the way) that “if one has to squint to find distinctions only at a granular level, then the works are likely to be substantially similar.” Moreover, Judge Wolfson spoke to the many elements of both games that were hard to distinguish, some of which included the look, color and shape of the game bricks; the movement/rotation of the pieces; the way the game pieces could be put together to form a complete line; the exact size of the playing area; and other specific design decisions that Xio had copied.
(emphasis added)
It's also on page 15 of the opinion:
The game mechanics and the rules are not entitled to protection, but courts have found expressive elements copyrightable, including game labels, design of game boards, playing cards and graphical works.
Copyright is strengthened by the decision, only in that decades-old precedent continues to be upheld.
Yes, but this probably got argued in Thomas and got nowhere, and the Thomas judgement has also been through appeals, and because the Supreme Court declined to hear it, means that it is on fairly rock solid legal foundations. The judges have already been persuaded.
You'd think that, but you'd be wrong - neither Thomas nor Tenenbaum ever raised this argument, instead focusing on "actual damages are $.99, so anything over that is unconstitutionally punitive". That argument failed every time, because the actual damages were certainly greater than $.99 for the loss of distribution exclusivity, and with no legitimate refutation of Congress' determination of statutory damage amounts, the judges had to accept them as reasonable. No one has yet raised the issue of whether "willful" is "intentional" or "malicious".
Bear in mind, of course, that because (i) for single-mother Thomas and broke-ass college kid Tenenbaum, any level of damages over $30 were unacceptable; (ii) they weren't paying their lawyers for the trials or appeals since they were pro-bono; and (iii) the lawyers (Harvard Prof. Charles Neeson and his former student Kiwi Camera) were making a political argument regarding whether copyright should exist at all rather than a pragmatic one as advocates for their clients, they had no interest in arguing for an interpretation that would still result in a reasonable award in the thousands of dollars range.
4) Commercial Piracy should attract large fines, however small personal acts of piracy should be penalized in the region of a few thousand dollars TOTAL, not several tens of thousands for each work. As an example, Jammie Thomas was definitely guilty, but a maximum fine of about $5,000 would be seen as far more reasonable especially as she made no significant financial gain from the act.
Interestingly, this is already in copyright law. It's just being misapplied.
First, as a premise, when given a range, juries (or anyone) tends to default to approximately the geometric mean of the range. For example, if a crime carries a sentence of 1 to 20 years, you might expect that people would default to around 10 years, but they don't. After all, if 1 year is a possible sentence, then 10 is an order of magnitude larger! And the top of the range at 20 is only just double that. Clearly 10 is too high. Instead, juries will default to around 4-6 years.
Well, it's the same thing in monetary damages: given a range (say, $750-$150,000, as in the "willful infringement" tier of copyright statutory damages), the geometric mean is $10,606. Tenenbaum was dinged for $22k per song. Thomas got hit for $9,250 per song. So, pretty close to the geometric mean.
But wait, is that the right range? The statute says up to $150k for willful infringement, which the RIAA has defined as any infringement that's intentional (as opposed to accidental copying?). Their argument is that, if you've ever seen a copyright notice, and you then distribute a copyrighted work, that's willful, 'cause you knew it was wrong.
But that's not what Congress intended. If you go back to the original House comments, it appears that they intended "Willful" to mean "malicious, or for commercial purposes" as in the trademark and patent acts. Like, if you sneak into your author neighbor's house and steal his manuscript and publish it to destroy his career, even if you didn't do it to make money, that's pretty evil, and you should be responsible for enhanced damages.
So, the non-enhanced range is $750-$30,000. The geometric mean of this is $4700. Your suggestion - "about $5000". QED.
Hence, we need to fix that interpretation of "willful", not go try to rewrite the copyright act, which can be done by arguing this issue in court and persuading judges, rather than fighting with well-monied RIAA lobbyists for Senators' favor.
A comparison I've been thinking about is comparing with pharmaceutical patents. The pharmaceutical industry is super-high risk as the average pharmaceutical costs around $1b to bring to the market and yet 9/10 candidate drugs fails to get there. Even getting a drug out on the market is no guarantee for success. The patent right is only twenty years because pharmaceuticals are seen as essential to the general well-being of society, but it works. So why the hell should an artist (and then a corporation after the death of the artist) should have 70 years to collect profit when the risk is nowhere near as high? Not to mention that the artist is unlikely to be alive for that entire period of time, or as in the States be dead for 70 years.
Part of the difference here is the two parties involved. In copyright, on the one hand, you've got the distributors like Disney, Sony, BMG, Warner Bros., etc., with billions of dollars to spend to protect their exclusivity. And on the other hand, you've got the public - and really, just the subset of the public with an interest in distributing and remaking old movies, resampling works, etc. And they have little to no money. So who do you think some Senator is going to listen to? Hence lifetime+70 years copyright duration.
Then consider patents... on the one hand, you've got big, wealthy companies who want their patents to last forever. On the other hand, you've got... big, wealthy companies who want their competitors' patents to expire immediately. That creates a nice balance of competing interests, hence why the patent term has never been significantly extended (other than to comply with the GATT treaties).
Mind you, some of the copyright duration issue is a red herring. Let me stipulate that I believe the current term is far too long. But, the majority of stuff being pirated is new. Joel Tenenbaum wasn't found liable for copyright infringement of Steamboat Willie. Thomas-Rasset wasn't sharing The Jazz Singer. 20 year copyright terms wouldn't have helped either of them a whit. There, we need to look at statutory damages and, in particular, the distinction between "willful" infringement (as the statute says) and "intentional" infringement (as the RIAA reads it).
Where copyright duration really matters is (a) DJs and remixers, who could really use a shorter term for derivative works; and (b) authors, who would be harmed by a shorter term when Hollywood starts doing immediate screen adaptations of novels without paying royalties.
Snowden at least stands accused of treason. Assange faces rape-after-the-fact charges in one of the most misandrous countries on the planet. Where the fuck does a drone strike against the latter even become a topic open for discussion?
Defend Assange for his efforts for freedom of information all you want, but don't lie about the sexual assault charges. He's not charged with "rape-after-the-fact" or any such biased bullshiat. He's charged with sexual assault, period. Hell, even if you disagree with the charges, disagree with the actual charges, but don't spread a bunch of lies that are set up to discredit rape victims.
This patent is almost entirely composed of statements such as "The context analysis module 316 is configured to interpret the received text," which means nothing. It's just a statement of a wish for such a module, with no disclosure of how such a module might, in fact, work.
Here's the full quote:
The context analysis module 316 is configured to receive text in a machine-readable format from the image to text module 314. The context analysis module 316 is configured to interpret the received text. In one embodiment, the interpretation of the text includes analyzing the text for contextual cues. The contextual cues may relate to a setting, a character, a pose or action, and other defined objects as identified by the text. For example, individual words may be identified by the context analysis module 316 that relate to a specific location or setting (e.g., 16.sup.th Century England, Wisconsin, a house, Main Street, etc.), a specific person (e.g., Shakespeare, Einstein, mother, father, etc.), a specific action (e.g., running, talking, exercising, etc.), a pose (e.g., standing, sitting, etc.) or otherwise. As another example, a series of words may be identified that relate to a specific action and specific object (e.g., a person running, a car driving down a road, a phone ringing, etc.). In other words, the context analysis module 316 is configured to provide context to the literal interpretation of actions described by the text.
[0062] In addition to providing context to the literal interpretation of the text, the context analysis module 316 may determine an origin of the text. The origin of the text may be determined by identifying any slang or dialect in the words, by determining if the text has appeared in any books, plays, or other forms of media, or otherwise. For example, upon analysis of the text, it may be determined that the origin of the text is from a Shakespearean play. A setting or location of 16.sup.th Century England may then be determined by the context analysis module 316. As another example, if the text includes names of historical figures from an era and location, the era and location may be set as the setting or location (e.g., the name Julius Caesar may lead to an identification of ancient Rome as a setting or location, the name Abraham Lincoln may indicate a setting of the United States Civil War Era, etc.).
That's pretty clear on how the module works - it parses the text looking for one or more predefined words, such as a dictionary-based search. Some of those words are used to determine the origin of the text.
You are mistaken about the purpose of a patent, which is disclose how an invention functions, not to reserve types of functionality regardless of implementation.
I didn't say anything about the purpose of a patent, so why exactly do you think I'm mistaken? What I said, in its entirety, was "Yes, it does - see figures 4-8 and the accompanying description" in response to your inaccurate statement that the application didn't include an algorithm. Don't try to put words in peoples' mouths in a public forum where anyone can simply scroll up to see that you're lying.
Slashdot Mirror
Simple ownership of the patent is not enough. If you sue everyone and his goat using an unreasonably broad interpretation of the patent and carefully tailor the amount to be under the cost to successfully defend, you may well run afoul of a number of laws.
Not sure why both you and another poster misread my post, but with 2 vs. 1, I have to assume the misstatement was on my part. Allow me to attempt it again:
They own the patents in question, and if there's any reasonable argument that the defendant infringes, even if you have to make a bunch of factual assumptions in favor of the plaintiff (those factual assumptions would be resolved at trial by the jury), then the suit isn't groundless.
My reference to ownership is because, with regard to the recent Righthaven copyright infringement, it did appear that the defendants infringed the copyrights... but Righthaven didn't own them, so when they brought suit, it was per se frivolous. You have to own the IP rights and have a reasonable argument for infringement... but if you do, then it's not a groundless suit.
And if your suit is not groundless, then "carefully tailoring the amount [of an offered settlement] to be under the cost to successfully defend" is not illegal at all. If you believe the defendant infringes, and you're going to offer them a settlement, why wouldn't you ask for the most you reasonably could? If you ask for more than it would cost to defend the suit, they won't take the settlement, and if you ask for significantly less, then you're leaving money on the table.
I think many people were confused by the Prenda Law sanctions, where the judge mentioned that the amount of settlements were calculated to be under the cost of defending them... That wasn't a factor in whether they deserved sanctions, period; it was a factor in what the amount of the sanctions would be. The sanctions were due to their fraud on the court, not the settlement amounts.
Someone who purchases a patent solely for the purpose of extracting legal settlements IS engaging in a form of racketeering. The legal system merely has not caught up to what is actually occuring.
Translation: "I acknowledge that the legal definition of racketeering isn't what's going on here, but I'm still going to say it's a form of racketeering and the laws just aren't right."
And while that may be a fine policy argument to change the legal definition of rackeetering, when someone points out as I did that, no, it's not rackeetering, calling them a troll is a childish response.
Particularly when you then admit they're entirely correct.
In many cases there is no reasonable argument that the "defendant" infringes because the patent should never have been granted in the first place.
I don't think you understand the concept of the burden of proof. The burden is on the defendant to show that a patent should never have been granted, as patents are presumed valid. As a result, the plaintiff can't possibly fail to make a prima facie case of infringement in the complaint "because the patent should never have been granted".
The mere fact that they own a particular patent is insufficient. There has to be a reasonable argument that somehow the defendant might possibly infringe on said patent.
Yes, and that's separate from invalidity. You can tell because the words "infringement" and "invalid" are spelled and pronounced differently. I never said that "owning a particular patent is sufficient", I said that "they own the patents in question, and if there's any reasonable argument that the defendant infringes, then the suit isn't groundless." The point of the former clause is that if you don't own the patents, then you can't bring suit, even if the defendant gleefully infringes while flipping off your mom. Remember Righthaven and the copyright suits? But that's merely one predicate, rather than this goalpost-shifting you're engaging in.
Additionally you do not get to make endless assumptions in favor of the plaintiff otherwise no suit could ever be considered groundless.
At summary judgement to dismiss a complaint, all factual disputes must be presumed in favor of the non-moving party. And suits can still be considered groundless if, even with those presumptions, the plaintiff still can't establish a prima facie case. For example, if it's undisputed that I don't own a patent, then even if we presume that the patent is valid and that you infringe, any suit by me would be groundless. Am I going too fast for you?
And yes, you get to make endless assumptions of any disputed facts at summary judgement, because that's how summary judgement works: "Even if my opponent is correct about every thing we disagree on, they still lose." If you didn't do that, then there's a possibility that the outcome could change if the fact turns a different way, and so you have to go to a full trial.
In some cases the patent trolls have legitimate cases. Often they do not and you can be damn sure they know (or should know) the difference. The legal system is not supposed to be a source of profit. It is supposed to resolve genuine disputes over material issues.
Licenses are a source of profit. If someone refuses to pay for a license that they're required to purchase, then it's a genuine dispute over material issues. That may result in profit, but it's the license that is the source of profit, not the legal system.
And many of these suits ARE groundless.
But if it isn't, then it's not extortion, and if it's not extortion, then there's no pattern of racketeering activity. But, oh, wait, following the statute is "speaking like a patent
My understanding is that patent cases are not tried by jury.
Did you miss the whole Apple-Samsung jury foreman interview fight?
Suing for hate speech makes about as much sense as trying to apply RICO to completely legal activities.
Extortion is not a "completely legal activity". Furthermore neither is barratry and racketeering, both of which arguably apply in the case of patent trolls.
No, none of the above apply. They own the patents in question, and if there's any reasonable argument that the defendant infringes, even if you have to make a bunch of factual assumptions in favor of the plaintiff (those factual assumptions would be resolved at trial by the jury), then the suit isn't groundless. If the suit is not groundless, then it's not barratry. Offering to settle a suit that's not groundless is not extortion. And finally, with no underlying extortion, it's not racketeering.
There are a variety of copyright troll cases that are in the works now where the plaintiffs have either had to pay legal fees for the defense or post bond in case they lose. In the former case, $20-50k in defense fees have been awarded before the case even went to trial. Other cases bonds of $250k were asked for. And these are for "simple" copyright infringement cases, not a patent fight.
Yes, but I'd take those with a grain of salt - specifically, the Prenda copyright cases had bonds and sanctions with payment to the defense attorneys because of some truly outrageous behavior, including fraud on the court, forged signatures, etc. The Righthaven cases had an issue where Righthaven didn't actually own the copyrights they claimed to be asserting. There are tons of other copyright cases that haven't required anything of the sort - see, for example, the Jammie Thomas and Joel Tenenbaum RIAA cases.
Here, they certainly own the patents - the assignment is in the public records at the USPTO - and there's no indication that they've committed any fraud... yet. There's no reason to hold your breath waiting for news that they'll have to post a bond for defense fees.
A recent study by the Richmond School of Law found that the USPTO's actual grant rate is currently running at about 89%. In 2001, it was as high as 99%. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2225781 page 9. In 2001, it didn't matter if an application was overbroad, obvious, trivial, a duplicate, or unreasonable, they ALL got granted.
On the contrary, 80-90% of patents are initially rejected.. Yes, the rate at which patents are eventually granted is 90%, but that's after they've been substantially amended and narrowed. Pointing at the eventual grant rate and claiming "it didn't matter if an application was overbroad, obvious, trivial, a duplicate, or unreasonable" while hiding the rejection rate is disingenuous.
Furthermore, the fact that you mention "duplicate" indicates you may not actually know what you're talking about. There are no duplicate patents, as double patenting is a rejection under 35 USC 101. There are continuation applications, in which one application gets filed and then later, another application with the same specification, title, and figures gets filed, claiming priority to the first one. So, to someone who doesn't understand what's going on, they may look like duplicates... however, (i) the claims are different, and (ii) the second application, even though filed later, expires on the same day the first one expires. They're really just offshoots of the same application, and not "duplicates" at all. My guess is that you heard that terrible episode of This American Life where they mentioned that several applications (all continuations of a first application) had the same name, and were as equally confused as their "journalists".
This also explains your later complaint:
6) Finally, I suggest that it is a mistake to allow patent applicants to modify or extend their patents after submission. This complicates the patent pipeline. It facilitates ‘submarine’ patents. It enables capturing Standards. It also enables gaming the patent system. Reform must simplify and reduce the patent process. Patents should be quickly evaluated. Most should be denied. If an applicant wishes to modify a denied patent, they should alter it, resubmit, and pay a new filing fee.
None of this is true - patent applications cannot be extended after submission, and any entry of additional material is "new matter" and rejected immediately. Applications can currently be altered, resubmitted, and filed with a new filing fee, and then they have the same title, as mentioned above when you were complaining about duplicates. Submarine patents are an entirely different thing, where a patent is granted and first published years after filing. Patents are now published after 18 months, and so submarine patents are mostly a thing of the past.
Most of your complaints are based on misunderstandings of the process and half-truths or outright falsehoods spread by poor journalists. A few minutes of research before you post would clarify them.
You're missing the point. A lot of this was unintentional. They made the USPTO run on fees that were charged for patents which gave the USPTO and incentive to rubber stamp patents while not receiving sufficient funding to cover the cost of having patent examiners that could do the investigation that they used to do.
If it was true that the USPTO was just rubber stamping patents, then you'd expect to see close to a 100% allowance rate, no? Instead, you get about an 80-90% rejection rate, depending on art group.
In reality, it's a bit more complicated than you think: the USPTO runs on fees, but those fees are for application filing, searching, examination, continued examination after final rejection, issuance, and maintenance fees. Only the last two give an incentive to rubber stamp patents - the others give an incentive to reject patents.
Furthermore, the USPTO is full of humans, with their own personal interests. Specifically, the Examiners are graded for promotion/bonuses on a point system in which they earn points for examining an application, points for rejecting it, and points for issuing it - they have an incentive to initially reject patents, even just to allow them after getting a request for continued examination, because they get an extra couple points. That also means extra fees for the PTO, incidentally. The Examiners, however, get no points for maintenance fees, so their interests are in drawing out prosecution to a certain point, rather than immediately rubber stamping everything allowed.
What needs to happen is that the USPTO needs to go back to being a government service the user fees need to be based upon the amount of time and energy it takes to deal with the application.
They are - see the bit about continued examination fees. More time spent = more money.
And while we're at it, the duration of the patent period should go from the point where the first application is received to a reasonable period after that. For technology 7 years is likely more than adequate as a lot of that IP is no longer of value several years later.
The problem here is that now you need Congress passing different laws for patent terms for every single industry. And when there's a new industry - like online retail - is that really a "new" industry that should deserve a short 5 year patent term; just an offshoot of an older internet industry that deserves a 10 year patent term; an offshoot of computers in general, deserving a 15 year term; or an offshoot of electrical engineering, deserving a full 20 year term? And how do you determine this on day one so that you can put it in the statutes, rather than waiting 5 years to determine how quickly the new industry advances?
Similarly, say you invent a new computer control sequence for car engines that significantly improves mpg efficiency: is that an automotive advancement with a 20 year term, or a software advancement with a 5 year term? And while maybe you can pick an answer and justify it, what's the general, objective rule that you can apply to any new invention to determine what its term should be?
This bit, gleaned from the linked slashdot interview, sums it up:
This bit, gleaned from the recent television interview, sums it up:
Can you explain why you claim you're innocent of the murder you've been accused of?
Defendant: My lawyer has told me not to answer any questions, because anything I say may be twisted or used against me in court. So I'll have to take a pass on this one.
Ah ha! Clearly he did it and there's no need for trials!
The process of vulcanization of rubber is approximately "raw rubber plus sulfur plus heat equals material with new properties". You have created something new by this process. The new physical material has different properties.
Sure, but just so that you're not moving the goalposts, realize that we're talking about a patent on the process of vulcanization, not the physical rubber. And that process is simply a mathematical algorithm, right?
Gear ratios are properties of physical objects that have a mathematical relationship. You don't patent a ratio, you patent a mechanism that may use those ratios to some effect.
You can also patent the method of transferring power via those gears (if it's a new and nonobvious process, of course). It's not just the machine that's patentable, but also the process... even though the process is merely a mathematical algorithm.
If the mechanism you have invented is a universal gearing system, then should someone who picks a particular gearing ratio because it is useful for some purpose that nobody noticed before deserve a patent on that ratio? I don't think that they should.
Why not? If they invented a brand new use for the ratio that no one ever noticed before, why shouldn't they receive a patent? They say build a better mousetrap, and the world will beat a path to your door... you're saying "pfff, it's just wood and metal and springy bits. Nothing new about that."
It's extremely frustrating to me that people *do* write those claims...
[Citation needed].
... and don't have anyone pointing out that general purpose computers are designed to be able to carry out *any* calculation.
Sure, a Universal Turing Machine can carry out any calculation, by definition. So why didn't we have GTA V thirty years ago? Was it because people hadn't figured out to make those calculations yet? And it's not mere hardware limitations, or there'd have been no advances in game technology from the very first PS3 games to the newest ones, for example. No, people have figured out new and better ways to use the hardware that were never conceived of when the hardware was first built.
The processors, memory controllers, caches, etc that make up the computer are all patentable. They do stuff. Software is just math that controls how they turn a given input into an output.
A furnace does stuff. The timing algorithm for vulcanizing your rubber is just math that controls how that furnace will turn a given input into an output. But you agree that that's patentable.
I write software every day.
That was obvious. I'll never understand why programmers are so disparaging of their own inventions, but it's definitely common.
It's not magic, and absent a computer, you could still generate the output of a program, just not nearly as fast (which is why the general purpose computer is such a great invention).
Sure, but it's like that old joke about going to the doctor with an injury, he hits you with a hammer and cures it, and gives you a bill for $500. $5 is for the hammer, the other $495 are knowing where to hit. Without the novel and innovative algorithm, that computer - or you with your pen and paper - just sit there doing nothing. So, while the computer, or your pen and paper, can be used to calculate the most amazing things ever, the mere existence of those tools doesn't mean that the resulting calculations are obvious.
Right. Except that computers have a single purpose...they do math.
This is not a new use of a known process.
You mention vulcanizing rubber. Furnaces have a single purpose - they heat things. Therefore, vulcanizing rubber isn't a new use of a known process?
Also, "doing math" isn't what's claimed, but rather specific operations that haven't been done before. They are, by definition, new uses of the older technologies.
This is saying "you're not allowed to write a computer program that does something in a certain instance". The courts are (again) failing to grasp the way that computers function. Vulcanization (of rubber) is a process. A computer program is an algorithm...math.
You're apparently not a physicist. Vulcanization of rubber is an algorithm... math. Gear ratios are algorithms... math. Every process or machine in the physical universe can be described mathematically. But that doesn't mean that a patent on an engine is attempting to claim all math, any more than a patent on a software method is attempting to claim all math.
The fact that you can control computer hardware (like a network connection) with software is about as far from non-obvious and new as you can get.
Good thing no one writes a patent claim that says "A method, comprising controlling computer hardware, period, the end" then, eh?
But really, this shows that your understanding of the issues is confused. Patent eligibility under 35 USC 101 is different from novelty under 35 USC 102 or obviousness under 35 USC 103. They're three different, independent requirements. You're trying to claim that all software should be exempt from patent eligibility under 35 USC 101... because it's all obvious under 35 USC 103? That simply mixes up two different statutes, two different bodies of case law, two different logical tests, etc.
Here's a simple question - imagine the most novel, non-obvious bit of software ever. Like, some brand new algorithm that can losslessly compress even random data by 99%. Go nuts with imagining the details - point is, it's a revolutionary bit of code that no one has ever thought of, and it wins billions of awards and the keys to the city. Should it still be unpatentable, merely because it's software? That's the issue about patent eligibility under 35 USC 101: should software, as an industry, be ineligible for patentability, regardless of how innovative or inventive something is.
> while most legal people are not conversant in technology, all patent attorneys are - the proper scientific or engineering background is a requirement to sit for the patent bar exam.
You're effectively trying to claim that ANY engineer is qualified to be an expert witness on ANY engineering discipline.
Except for the fact that I never said that and it's impossible to read my words to say that, and the fact that my post was specifically arguing that most PEs would not be qualified to discuss networking, yes. You sure caught me.
And that says "The first spanning tree protocol was invented in 1985" which predates the earliest patent, therefore is prior art and invalidates the entire lawsuit. Why is this still in court?
Does the spanning tree protocol include each and every element in the patent claims? If you can literally make a table with each line of the claim on one side and a corresponding quote from the spanning tree protocol documentation on the other side, then it does invalidate the patent. However, if there's anything missing, then while it's relevant prior art, it's not anticipatory prior art.
Am I going to look at those patent numbers? No ! I don't want to get get a migraine headache since many modern IT patents are written in "legalese" such that someone with a Professional Engineering (yes a real one) background who is actually conversant with the field has a hard time understanding the words. Of course the opposite applies since most legal people can understand the words but not the context.
Considering that most PEs are civil engineers and that while EE is a valid discipline for the PE, they tend to be electrical system designers, I'm not sure why you think that that's a helpful background here. For example, very few IT people are PEs, simply because (a) it doesn't apply; and (b) they can't hack the necessary math and physics. Additionally, while most legal people are not conversant in technology, all patent attorneys are - the proper scientific or engineering background is a requirement to sit for the patent bar exam.
I particularly like fig 1c which basically a stylised drawing of the USA (well worth the LOL look) - see here and click on fig "1c" of Images which is the second image from the left.
Not sure why you think that's lol-worthy. The patent describes a system for self-healing networks such as the nationwide telecommunications backbones that go from major city to major city... Accordingly, any geographical network diagram of an example network will inevitably look like the country it's using for the example. Are you suuuure you're a PE?
Trying not to have an aneurysm...*why* in the world do courts continue to view software as patentable subject matter. The communications nodes are general-purpose computers with networking hardware attached. They have an operating system that allows for the switching of communications lines. Now there's a rash of lawsuits because the courts are too dimwitted to understand that software plus computer != invention/new machine.
No, the courts are following the law. A new and nonobvious use of a known machine is a patentable invention. Specifically, 35 USC 101 says "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, subject to the conditions and requirements of this title." and 35 USC 100 defines a process as "The term “process” means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material."
The law is quite clear - if you come up with a new and nonobvious use for a known machine, such as a computer, then you have invented a patent eligible process.
(IIRC at this point Motorola countersued in Germany and won a temporary injunction on sales, that was overruled by an US judge. Apparently the US justice system overrules the european courts, but that's nothing new, I guess.)
It's not that the US court overrules the European courts, but rather that the order of suits means that the first one gets resolved first. If I sue you for breach of contract in Massachusetts, you can't run to California and quickly file suit against me for the same transaction (well, you can, but it will be immediately dismissed and/or transferred to the Massachusetts trial). That sort of forum-shopping by a defendant simply isn't allowed, in the interest of having trials come to actual conclusions.
So, in this case, MS sued Motorola in the US. Motorola ran to Germany and filed a suit asking for a temporary injunction. That filing was improper, because a suit on the issue was already underway. Accordingly, the US judge ordered Motorola not to follow through with any efforts to enforce the German injunction (can't post a bond, can't file suit asking for damages for breach of the injunction, etc.)
I'd expect to see the exact same situation if it were a German court where the suit was first filed, and someone ran to the US to get a temporary injunction: the German court would properly order that someone to not enforce their injunction. It's not about US vs. Europe, but about the first lawsuit being superior to any later forum shopping attempts.
As is the case with increasing frequency, one is left to wonder about the implications intellectual property claims have for free speech when they can be applied to so public a figure as Dr. King.
Sorry, Subby, but no, "free speech" doesn't mean you can freely appropriate someone's work just because they're a "public figure". See, the "free" part is about their freedom from persecution, not your cost of royalties when you put their speech on t-shirts.
Anyway... a patent was recently awarded because someone figured out how to use the speaker/mic combo on a mobile phone to transmit data acoustically. You know, like... through the air and stuff. For credit card transactions. You might well guess... they got a patent.
Nevermind that this technology debuted in the 1960s, pretty much right after the second computer was built and someone got the idea that they should be able to exchange data... and look, here's this phone thingie...
I'm pretty sure they weren't using mobile phones in the 1960s for communicating credit card transactions, and the acoustic couplers they used were really sensitive to environmental noise, hence the data rates measured in baud. Maybe - and I'm going out on a limb here - just maybe, this is a different implementation than they had in the 1960s?
"But the basic idea is the same!" you cry... to which I point out that in every Slashdot story when someone talks about patenting an idea, people rush to correct them and exclaim that you can't patent an idea, just an implementation. Well, if the implementation is new and nonobvious and you're not trying to claim the idea, then who cares if the idea came before. Shiat, we've had "ideas" for teleportation, warp drives, and time travel for decades. Are you trying to claim that any successful implementation of those would be obvious?
Both sides in the litigation admit that if Apple routes its FaceTime calls through relay servers, it will avoid infringing the VirnetX patents. Once Apple was found to be infringing—and realized it could end up paying an ongoing royalty for using FaceTime—the company redesigned the system so that all FaceTime calls would rely on relay servers. Lease believes the switch happened in April.
So, from that, it appears that Apple infringed up until April, but no longer does.
Meanwhile, Apple has handed over its customer service logs from April through mid-August to VirnetX's attorneys. At the August 15 hearing, a VirnetX lawyer stated that Apple had logged "over half a million calls" complaining about the quality of FaceTime, according to Lease.
If that's accurate, the data will bolster VirnetX's arguments that its patents are technologically significant, hard to work around, and deserve a high royalty rate.
And if the customers are complaining because it currently uses the sucky work-around, then that also indicates that Apple stopped infringing in April.
The judge and lawyers present at the hearing didn't discuss numbers regarding what a reasonable ongoing royalty might be, but VirnetX is asking for royalty payments of more than $700 million for the ongoing use of FaceTime, according to Lease.
... so why would there be ongoing royalties? If you stop using someone's patented improvement and return to using the previous, public domain system, you shouldn't have to keep paying them royalties. This would be like if someone patented a better mousetrap, and then when you stopped using it, they also wanted you to pay a royalty for owning a cat.
On Tuesday, however, Microsoft confirmed that although Windows 8.1 has reached RTM, subscribers to MSDN will not get the final code until the public does on Oct. 17, saying it was not finished.
What the fuck. No. Words mean things, and "release to manufacturing" means that the software is ready for Releasing To Manufacturing. It doesn't mean "beta 15", or "we think this might be ready", or "release candidate". It means that it's ready to ship and that this is what will be going out the door on launch day.
Google's infinite betas are a bit of mild industry humor, but "beta" doesn't have an inherent definition. You can stretch it to justify almost anything. But "RTM", "release candidate", and others have very specific, unambiguous meanings. If it's not finished, it's not RTM no matter who the hell says it is.
... and yet, at the same time, if you pick up a brand new PS3 or XBox game on the release date and shove it in your console, the first thing it does is download an update. People have come to not only understand day-1 patches, but almost expect them. And yes, that sucks for developers, because while you and your customers may be fine with a day-1 patch of your software as the price of install, you still need to write that patch on a stable code base.
Meanwhile, another judge ruled that Xio, although using none of Tetris's code, still violates copyright because it infringes on the core concept or rules of the games. Copyright strengthened.
That's not what the judge ruled at all. It wasn't the "core concept" or "rules", since those are not covered by copyright; rather, the judge ruled that Xio infringed because of the creative, aesthetic and design features. From your link:
Judge Wolfson took a detailed look at both the Tetris and Mino games in an effort to identify those items that were protected under the law, and there were a number of things that stood out in the Judge’s view. First of all, when placed side by side, various screenshots of the two games were just about impossible to differentiate. The Court stated (and I love this quote, by the way) that “if one has to squint to find distinctions only at a granular level, then the works are likely to be substantially similar.” Moreover, Judge Wolfson spoke to the many elements of both games that were hard to distinguish, some of which included the look, color and shape of the game bricks; the movement/rotation of the pieces; the way the game pieces could be put together to form a complete line; the exact size of the playing area; and other specific design decisions that Xio had copied.
(emphasis added)
It's also on page 15 of the opinion:
The game mechanics and the rules are not entitled to protection, but courts have found expressive elements copyrightable, including game labels, design of game boards, playing cards and graphical works.
Copyright is strengthened by the decision, only in that decades-old precedent continues to be upheld.
Yes, but this probably got argued in Thomas and got nowhere, and the Thomas judgement has also been through appeals, and because the Supreme Court declined to hear it, means that it is on fairly rock solid legal foundations. The judges have already been persuaded.
You'd think that, but you'd be wrong - neither Thomas nor Tenenbaum ever raised this argument, instead focusing on "actual damages are $.99, so anything over that is unconstitutionally punitive". That argument failed every time, because the actual damages were certainly greater than $.99 for the loss of distribution exclusivity, and with no legitimate refutation of Congress' determination of statutory damage amounts, the judges had to accept them as reasonable. No one has yet raised the issue of whether "willful" is "intentional" or "malicious".
Bear in mind, of course, that because (i) for single-mother Thomas and broke-ass college kid Tenenbaum, any level of damages over $30 were unacceptable; (ii) they weren't paying their lawyers for the trials or appeals since they were pro-bono; and (iii) the lawyers (Harvard Prof. Charles Neeson and his former student Kiwi Camera) were making a political argument regarding whether copyright should exist at all rather than a pragmatic one as advocates for their clients, they had no interest in arguing for an interpretation that would still result in a reasonable award in the thousands of dollars range.
4) Commercial Piracy should attract large fines, however small personal acts of piracy should be penalized in the region of a few thousand dollars TOTAL, not several tens of thousands for each work. As an example, Jammie Thomas was definitely guilty, but a maximum fine of about $5,000 would be seen as far more reasonable especially as she made no significant financial gain from the act.
Interestingly, this is already in copyright law. It's just being misapplied.
First, as a premise, when given a range, juries (or anyone) tends to default to approximately the geometric mean of the range. For example, if a crime carries a sentence of 1 to 20 years, you might expect that people would default to around 10 years, but they don't. After all, if 1 year is a possible sentence, then 10 is an order of magnitude larger! And the top of the range at 20 is only just double that. Clearly 10 is too high. Instead, juries will default to around 4-6 years.
Well, it's the same thing in monetary damages: given a range (say, $750-$150,000, as in the "willful infringement" tier of copyright statutory damages), the geometric mean is $10,606. Tenenbaum was dinged for $22k per song. Thomas got hit for $9,250 per song. So, pretty close to the geometric mean.
But wait, is that the right range? The statute says up to $150k for willful infringement, which the RIAA has defined as any infringement that's intentional (as opposed to accidental copying?). Their argument is that, if you've ever seen a copyright notice, and you then distribute a copyrighted work, that's willful, 'cause you knew it was wrong.
But that's not what Congress intended. If you go back to the original House comments, it appears that they intended "Willful" to mean "malicious, or for commercial purposes" as in the trademark and patent acts. Like, if you sneak into your author neighbor's house and steal his manuscript and publish it to destroy his career, even if you didn't do it to make money, that's pretty evil, and you should be responsible for enhanced damages.
So, the non-enhanced range is $750-$30,000. The geometric mean of this is $4700. Your suggestion - "about $5000". QED.
Hence, we need to fix that interpretation of "willful", not go try to rewrite the copyright act, which can be done by arguing this issue in court and persuading judges, rather than fighting with well-monied RIAA lobbyists for Senators' favor.
A comparison I've been thinking about is comparing with pharmaceutical patents. The pharmaceutical industry is super-high risk as the average pharmaceutical costs around $1b to bring to the market and yet 9/10 candidate drugs fails to get there. Even getting a drug out on the market is no guarantee for success. The patent right is only twenty years because pharmaceuticals are seen as essential to the general well-being of society, but it works. So why the hell should an artist (and then a corporation after the death of the artist) should have 70 years to collect profit when the risk is nowhere near as high? Not to mention that the artist is unlikely to be alive for that entire period of time, or as in the States be dead for 70 years.
Part of the difference here is the two parties involved. In copyright, on the one hand, you've got the distributors like Disney, Sony, BMG, Warner Bros., etc., with billions of dollars to spend to protect their exclusivity. And on the other hand, you've got the public - and really, just the subset of the public with an interest in distributing and remaking old movies, resampling works, etc. And they have little to no money. So who do you think some Senator is going to listen to? Hence lifetime+70 years copyright duration.
Then consider patents... on the one hand, you've got big, wealthy companies who want their patents to last forever. On the other hand, you've got... big, wealthy companies who want their competitors' patents to expire immediately. That creates a nice balance of competing interests, hence why the patent term has never been significantly extended (other than to comply with the GATT treaties).
Mind you, some of the copyright duration issue is a red herring. Let me stipulate that I believe the current term is far too long. But, the majority of stuff being pirated is new. Joel Tenenbaum wasn't found liable for copyright infringement of Steamboat Willie. Thomas-Rasset wasn't sharing The Jazz Singer. 20 year copyright terms wouldn't have helped either of them a whit. There, we need to look at statutory damages and, in particular, the distinction between "willful" infringement (as the statute says) and "intentional" infringement (as the RIAA reads it).
Where copyright duration really matters is (a) DJs and remixers, who could really use a shorter term for derivative works; and (b) authors, who would be harmed by a shorter term when Hollywood starts doing immediate screen adaptations of novels without paying royalties.
Snowden at least stands accused of treason. Assange faces rape-after-the-fact charges in one of the most misandrous countries on the planet. Where the fuck does a drone strike against the latter even become a topic open for discussion?
Defend Assange for his efforts for freedom of information all you want, but don't lie about the sexual assault charges. He's not charged with "rape-after-the-fact" or any such biased bullshiat. He's charged with sexual assault, period. Hell, even if you disagree with the charges, disagree with the actual charges, but don't spread a bunch of lies that are set up to discredit rape victims.
This patent is almost entirely composed of statements such as "The context analysis module 316 is configured to interpret the received text," which means nothing. It's just a statement of a wish for such a module, with no disclosure of how such a module might, in fact, work.
Here's the full quote:
The context analysis module 316 is configured to receive text in a machine-readable format from the image to text module 314. The context analysis module 316 is configured to interpret the received text. In one embodiment, the interpretation of the text includes analyzing the text for contextual cues. The contextual cues may relate to a setting, a character, a pose or action, and other defined objects as identified by the text. For example, individual words may be identified by the context analysis module 316 that relate to a specific location or setting (e.g., 16.sup.th Century England, Wisconsin, a house, Main Street, etc.), a specific person (e.g., Shakespeare, Einstein, mother, father, etc.), a specific action (e.g., running, talking, exercising, etc.), a pose (e.g., standing, sitting, etc.) or otherwise. As another example, a series of words may be identified that relate to a specific action and specific object (e.g., a person running, a car driving down a road, a phone ringing, etc.). In other words, the context analysis module 316 is configured to provide context to the literal interpretation of actions described by the text.
[0062] In addition to providing context to the literal interpretation of the text, the context analysis module 316 may determine an origin of the text. The origin of the text may be determined by identifying any slang or dialect in the words, by determining if the text has appeared in any books, plays, or other forms of media, or otherwise. For example, upon analysis of the text, it may be determined that the origin of the text is from a Shakespearean play. A setting or location of 16.sup.th Century England may then be determined by the context analysis module 316. As another example, if the text includes names of historical figures from an era and location, the era and location may be set as the setting or location (e.g., the name Julius Caesar may lead to an identification of ancient Rome as a setting or location, the name Abraham Lincoln may indicate a setting of the United States Civil War Era, etc.).
That's pretty clear on how the module works - it parses the text looking for one or more predefined words, such as a dictionary-based search. Some of those words are used to determine the origin of the text.
You are mistaken about the purpose of a patent, which is disclose how an invention functions, not to reserve types of functionality regardless of implementation.
I didn't say anything about the purpose of a patent, so why exactly do you think I'm mistaken? What I said, in its entirety, was "Yes, it does - see figures 4-8 and the accompanying description" in response to your inaccurate statement that the application didn't include an algorithm. Don't try to put words in peoples' mouths in a public forum where anyone can simply scroll up to see that you're lying.