That the term is too long overall is not a separate argument.
If you're concerned that older writers are unfairly disadvantaged because younger writers could sell the authority to use their creations for decades, then the solution seems obvious: Reduce the younger writers' ability to sell the authority to use their creations.
I am going to die at some point. I have no intention of leaving an heir. When I die, the idea that authority over the things I have created would somehow be held by some private individual instead of being available for the common good is not only not desirable to me, but I see it as really detrimental, and despicable that someone might hope to gain from my work by denying it to others.
Ah, but fortunately, we live in a representative democracy, and not in a "my situation is different than everybody else's, but nonetheless, the laws should be written specifically for me" dictatorship. I have no plans for kids either, but am not so selfish that I believe that people who do want kids should be impaired in their ability to pass on an inheritance. After all, I realize that I too had parents and inherited from them. Perhaps this does not apply in your case?
A movie studio can make a billion dollars off of a movie in five years. Your objection would seem to point to copyright terms being too long in general rather than them being too short.
No, his objection points to the term needing to exist after the inventor or author's death, to protect older inventors and authors. That the term is too long overall is a different argument. You could have a 5 year term, but that doesn't help the author who dies the day after publishing if it doesn't extend past his or her death.
"The way the patent laws work, and have worked for 200 years, is that when someone else uses it—whether intentionally or unintentionally—they owe a reasonable royalty," said Melsheimer. "It's not necessarily a function of bad intent or malicious planning. The notion that the original inventor didn't succeed in commercializing the invention is, legally speaking, not relevant.""
Patents are absolute monopolies which allow any and all royalty rates... reason doesn't enter into it.
Not so. Patents are absolute monopolies that can be used either for injunctive relief, which allows no royalties by definition because the infringer is no longer allowed to continue infringing; or for monetary damages, which allows a "reasonable royalty". In other words, you can either get 0 royalties and have an absolute monopoly, or you can get a reasonable royalty and no monopoly. You simply cannot have "any and all royalty rates," like 100% of revenue or infinite dollars per unit or whatnot. Check out 35 USC 284.
This is essentially true. If a software patent was required to have sample code implementing (thus making more precise) the patent claims, it would be exposed as a mathematical operation and one that is completely independent of the hardware. It becomes a method patent which, guess what, has been practically negated by Bilski.
Method patents haven't been "practically negated by Bilski." In fact, the Supreme Court explicitly said in Bilski that software and business methods were patentable, provided they were not merely abstract ideas. For example, a claim that recites software executed by hardware is not "a mathematical operation" any more than a machine with a mathematical gear ratio is "a mathematical operation" - or rather, both are executing mathematical operations, but are not merely mathematical operations.
Yes, all software is math and alone, without being tied to machine or otherwise non-abstract, is unpatentable. However, math executed by a machine is patentable because, no matter how much you hate software patents, you can't simply ignore half of the patent claim in order to declare it invalid.
Since when did patents ever legitimately cover algorithms in the first place?
The idea that 'doing it on a computer' is enough to get a patent is ridiculous. The computer is a general purpose calculating device that applies to any known practical algorithm. IT IS OBVIOUS to put your algorithm on a computer.
Agreed, but that's not what we're talking about here. You specified "known" algorithms. H.264 encoding wasn't a "known" algorithm prior to 2001, even without a computer.
Yeah, that's what I'm reading from this, though as said elsewhere, this is some claims in the patents were invalidated, but I'm wondering then can Moto re-apply with more detail? But yeah, does this mean anyone without a full listing of the algorithm (which is most 'with a computer/on the internet' patent these days) has a chance to have parts made invalid?
(i) Yes, but only those claims that invoke means-plus-function limitations under 35 U.S.C. 112(6). System claims, method claims, and Beauregard claims would still be valid;
(ii) And no, most "with a computer/on the internet" patents* do include a "full listing of the algorithm". They aren't required to include source code, or even pseudocode, but rather, as the judge notes:
The specification can express the algorithm “in any understandable terms including as a mathematical formula, in prose, or as a flow chart, or in any other manner that provides sufficient structure.” Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008) (internal citation omitted).
And honestly, it's pretty rare that a software related patent doesn't include a flow chart these days. Consider the beloved Amazon one-click patent - it has 5 flow charts, starting at figure 3. The fact that these three patents (really one patent and two continuations with the same specification and figures) didn't include a flow chart is an anomaly, not the norm.
*there are no "with a computer/on the internet" patents. People on Slashdot may characterize them that way, but there are no patents that include a claim of "A method, comprising: [known process], on the internet." The mere addition of the limitation "on the internet" can't be the key to patentability, because the internet is known. As a combination of two known pieces of prior art, it would be invalid under KSR. Instead, you'll always find that there's some additional element in the claim that is not involved in the off-line operation.
I believe this FUD got started because someone saw a dependent claim that said, "The method of claim 1, wherein the network is the internet," and suddenly thought that that was the key to patentability of the entire patent. Not true. It's really just a doctrine called claim differentiation. Patent claims are like Venn Diagrams, where dependent claims are bubbles within the large bubble of the independent claim from which they depend. So, if claim 1 says a network, and claim 2 says the network is the internet, then claim 1 must include other networks including LANs and VPNs as well as the internet. But that's it - claim 1, which never explicitly mentions the internet, must still be patentable on its own.
If a Judge (not a Jury) can invalidate Patent claims (are they THAT skilled in the science of these things?) then what the heck's the Patent Office for?
The Patent Office doesn't make law or decide legal issues - they decide factual ones. The patents in this case were not invalidated as obvious or anticipated by some prior art, which would be a matter of fact. Instead, the judge determined that 35 U.S.C. 112(2) requires disclosure of an algorithm when claims utilize the means-plus-function format of 35 U.S.C. 112(6). That's a matter of law. In other words, the "science of these things" is the science of jurisprudence, not the science of video encoding.
Or, short version: the Patent Office applied the law as it was properly understood at the time. The judge has now said, "no, that's not the proper law, it's this instead."
We were used to plentiful of uninformed/. 'news' over the last decade on patents and stuff; when 'filing' and 'granted' was considered the same, effectively, and lots of nonsense, like the contents of the abstract being considered as the underlying idea, or even as the legally binded grant, and much more.
In a nutshell, I expected the same, yet again, and was almost reluctant to even go into the details and actually read the document.
OMG!
It is a patent
It does grant what the summary said
Incredible.!!
There is a comment from AC further up ("Bad summary of patent") stating correctly that it does contain a last minute change as necessity for potential infringement. True. But I can't believe that there is no anticipating document before 2009, where a recurring delivery system of any sorts had a 'last check' of possible modifications by the customer before the actual delivery.
Much too often, I had to come to the defense of my former colleagues in patent examination. In this case, however, I need to agree when someone questioned if there are signs of life left in the office.
Actually, I doubt it.
Uh, no, it doesn't grant what the summary said, and the fact that you ignored half of the limitations in the claims makes me wonder if those people in be examination corps were ever actually your colleagues.
Apparently, you can take any patent in the database, copy-pasta in a word processing document, go to the end of the document and add these characters:
....ON A COMPUTER!
And you have a new patent, ready for filing.
In a 2007 ruling the Supreme Court said these sorts of "combination patents" are not valid. So I can't see how the USPTO can justify continuing to issue them.
Because, contrary to what the above posters have ranted about, this patent does not claim an entirely known process "... ON A COMPUTER!" In fact, as you note, the Supreme Court said they weren't patentable in KSR (and they weren't patentable before it either) and there are NO totally known process "... ON A COMPUTER!" patents. Not one. People might try to paraphrase a patent that way, but their description is not the patent - the patent is the claims, and there are no issued patents with a claim like that.
I'm sure if the drive was useful in any meaningful way it would have been utilized.
Kind of like if Robertson screws were better than Phillips screws, they would have been utilized by Henry Ford? That stuff often doesn't work out the way sane people think it ought to.
Ah, but no one ever said that Robertson screws wouldn't work or violated fundamental laws of physics without explanation. Robertson screws are easily measurable... microwave drives, not so much. Bad analogy on you.
This is dangerously false, at least in the United States (where Amazon lives). Google the Lanham Act.
Okay, I just googled it, and I don't see anything false about my statement. From the wiki: These provisions can be used to restrict, through the use of injunctions and damages, the importation of goods that infringe or counterfeit registered trademarks.
Since "common law" == "not registered", I stand by original my statement.
GP is right. Actions for infringement of a registered mark are unde sec. 32 of the Lanham Act. Actions for infringement of an *un*registered mark - I,e., a "common law" mark - are under sec. 43(a) of the Lanham Act. There's a reason why wiki is useful as a guide to find primary sources, like the statute, but is not a replacement for those sources,
Nonsense. Even if you have all the evidence in plain view there can still be vast networks of shady dealings and huge cover-ups at work. Just look at the Kennedy Assassination!
That's a huge presumption that your argument relies on that you haven't shown to be true.
Many (but not all) conspiracy theories are actually rational lines of logic, stemming from different presumptions - such as whether "all the evidence" is actually available or not. To dismiss them out of hand simply because you have a different, unproven assumption is to make the same logic error you're accusing them of.
... by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Sounds like they're doing exactly what the Goddamn Constitution says.
What, by creating artificial scarcity to jack up consumer prices? The Constitution was designed to support price-gouging?
Uh, yeah? It says it right there. What do you think "exclusive rights" are used for except excluding others and/or selling licenses?
I have no problem with protecting the work of people, and if you invent something new you should be able to benefit from it without someone just ripping it off.
But a patent to manipulate the economy to make sure that prices stay high solely to protect corporate profits? How does society benefit from that.
Ah, so you want the USPTO to qualitatively classify each patent as being "good for society"? So, for example, if a teetotaler is in charge of the office, no patents on new distillery technology. Or if a luddite is in charge, no patents on anything related to computers. Or if it's one of those anti-gun, anti-video game folks, then no patents on anything related to firearms or gaming? What about a Ralph Nader "Unsafe at any speed" person who bans patents on automobiles? What if it's a hardcore Christian who believes that patents should only be granted for things that lead one away from sin?
How does society benefit by having each inventor's protection be allowed or not allowed based on the capricious whim of some political appointee?
That's a business model, not a "writing" or "discovery", and it's definitely not "science and useful arts".
It's certainly one of the useful arts. The terms in the Constitution are archaic uses - "science" refers actually to things like literature, art, paintings, etc. that are covered by copyright, and "useful arts" is in contradistinction to aesthetic arts and refers to things that do something, like machines, industrial processes, or useful articles manufactured by industrial processes. In this case, the patent claims a machine and an article of manufacture that are both useful to industry. Why shouldn't that be patentable? Simply because you think it's unfair that a corporation makes money? If that's a legitimate complaint, then shouldn't your solution have something to do with taxing corporations or limiting profits, rather than creating a blanket rule that will harm sole inventors?
... by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Sounds like they're doing exactly what the Goddamn Constitution says.
Those were creative works; you're confusing copyright with patents. Patents do not apply to Zynga's exploitation of indies.
Not at all - I'm addressing the false claim that "first mover advantage is tremendous" and therefore patents aren't necessary. It's not always true, as shown by those examples. The fact that they didn't have patents to protect them means that their sole protection was the first mover advantage, and that didn't help them one whit.
No, you're misreading it. To willfully infringe a patent, you must know about the patent, believe its valid, and go ahead and infringe anyway. What she's saying is that Samsung got expert opinions that said that Apple's patents weren't valid. Those experts were apparently wrong, according to the jury, but that belief takes out the second prong of willfulness, so Samsung didn't willfully infringe, and damages are not tripled.
But why wern't the 'damages' reduced? At least two of the patents from the trial were invalidated since.
That's an issue for appeal, not this stage of trial.
One very important sentence in the groklaw article:
The reason she found Samsung was not willful is because of all the prior art that their experts testified showed that the Apple patents were invalid.
Am I reading this correctly? Apple has invalid patents but still got damages out of them? Does this mean they are a one-shot deal and that other manufacturers can infringe now? In this case 1 billion dollars to render Apple's portfolio irrelevant was effectively very cheap, given the size of the relevant market.
No, you're misreading it. To willfully infringe a patent, you must know about the patent, believe its valid, and go ahead and infringe anyway. What she's saying is that Samsung got expert opinions that said that Apple's patents weren't valid. Those experts were apparently wrong, according to the jury, but that belief takes out the second prong of willfulness, so Samsung didn't willfully infringe, and damages are not tripled.
If anyone could copy them without any way to sue, why would anyone bother spending money on the invention? Much cheaper to wait for someone else to invent it, and then copy it.
I don't know why this stupid meme just won't die. TO MAKE MONEY of course. Sitting on your ass selling nothing doesn't make money. Sitting on your ass and trying to sell a 10 year old product also doesn't make money when someone else is selling something newer and better. First mover advantage is tremendous. New shit sells
Tell that to TinyTower or Crush the Castle or any of the indie developers who saw Zynga or another company come out with a nigh-identical product a few weeks later, and then bury them via their better advertising networks.
"this person infringed a patent willingly" requires that they haven't just harmed the patent owner, but they've harmed society because they're diminishing the exclusive incentive behind granting that patent
Is this only me who can't get the subtle meaning in this statement. Can this be put in more realistic terms?
Sure. Simply read the next two sentences:
If willful infringement causes inventors to decide to keep trade secrets, then we're all farked and those infringers should be harshly punished. But until then and particularly where infringers aren't willful, tripling damages seems incredibly out of proportion to the wrong.
General feelings from the Apple side is that this is unfortunate but would rather Apple stop wasting time on it. General opinion from the Samsung/Android side is, **** Apple, waste as much money as possible.
This had *nothing* to do with feelings. Apple is unable to maintain its massive mark-ups of rebadged foxconn phones through innovation; its massive market share gone; the days of the iPhone killer long behind us; its marketing machine pushing it as the *one* phone turning on Apple.
No. Because she doesn't find her jury foreman to be a disturbing failure of vor dire. It's a patent case and he's a wannabe patent troll. If she doesn't find that problematic, one wonders what it would take.
A "disturbing failure of voir dire" means "Samsung's lawyers failed to ask relevant questions of the jury, failed to investigate the jurors, and failed to look through their own records of who they've sued in the past"... or really, it means Samsung absolutely knew who Hogan was and held the past conflict in check in case the jury decided against them. Who are we kidding - if the jury had decided for Samsung on every count, would they be demanding a new trial because of Hogan's past? Of course not. Since they had every opportunity to investigate that past and likely knew of it, they can't play "ace up our sleeve" and spring it on the court post-judgement. Trials only work like that in the movies.
I give you exclusive rights to an invention, in exchange for you publishing your technical specifications, white papers, etc.
But current patents don't actually require you to publish your technical specifications, white papers, etc. You just have to publish the patent application.
And I agree, that's a failing in current patent law that should be addressed by Congress. The current test is whether one of ordinary skill in the art could recreate the invention from the specification, not whether any n00b could do so, but maybe the latter would be preferable.
That said, the specification is not required to be the sole disclosure, and companies can publish technical specifications and white papers without losing their patent rights, unlike with trade secrets. Maybe a better solution is that a compulsory royalty of x% can be increased for each additional piece of documentation that a company publishes. Just the spec? You get n%. Functional descriptions? n+m%. White papers? n+o%. Etc. More disclosure = more money, which is what society really wants, in the end.
Said values of n, m, o, etc. would of course be dependent on market analysis and the value of the invention.
Judge Koh knew that she has seriously fcuked up in the original trial.
I'm sure you have some precedent or legal doctrine to cite in support of this beyond "I hate people who disagree with me"?
This second round ruling - that Samsung does not "willfully" infringe on Apple's patents - is nothing less than a face saving move.
No, it's pretty reasonable. Willful infringement, under the current law, requires almost malicious behavior in which the infringer acknowledges that they infringe the patent, but then go ahead anyway. Basically, they have to be evildoers: "I think the patent is invalid" or "I think our system is different" isn't enough - they have to actually say "the patent is valid, and our system is an identical copy, and fark those bastards because muwahahaha!" And that results in potentially tripled damages.
But patents aren't about who's good and moral and who's evil and malicious... they're about who stepped up and publicized an innovation to share it with everyone else, and who hid documents as trade secrets in an attempt to capitalize on them forever. As Jefferson said, an exclusive monopoly is an embarrassment to society that is only conscionable if society benefits from granting it. It's a flat economic decision: I give you exclusive rights to an invention, in exchange for you publishing your technical specifications, white papers, etc., because society takes the long view and giving exclusive rights for 20 years isn't so bad if you're thinking in terms of centuries or milleniums.
So to get to a level of "this person infringed a patent willingly" requires that they haven't just harmed the patent owner, but they've harmed society because they're diminishing the exclusive incentive behind granting that patent. If willful infringement causes inventors to decide to keep trade secrets, then we're all farked and those infringers should be harshly punished. But until then and particularly where infringers aren't willful, tripling damages seems incredibly out of proportion to the wrong.
Disclaimer: I'm a very pro-patent patent attorney, though I am on the drafting and prosecution side, and not litigation. We tend to be pro-inventor, and less pro-cut everyone's throat and get as much blood as possible.
how did Samsung unwillingly infringe? By copying the complete design of the original iPhone, they were just doing what a lot of Koreans do: make copies of original American products. My ex-gf was involved in a sportswear company and it was part of her job to create infringing designs so people would believe they were buying original clothes from the famous labels she stole the look from.
... like we're supposed to believe a Slashdotter even has an ex-gf?
Slashdot Mirror
That the term is too long overall is not a separate argument.
If you're concerned that older writers are unfairly disadvantaged because younger writers could sell the authority to use their creations for decades, then the solution seems obvious: Reduce the younger writers' ability to sell the authority to use their creations.
I am going to die at some point. I have no intention of leaving an heir. When I die, the idea that authority over the things I have created would somehow be held by some private individual instead of being available for the common good is not only not desirable to me, but I see it as really detrimental, and despicable that someone might hope to gain from my work by denying it to others.
Ah, but fortunately, we live in a representative democracy, and not in a "my situation is different than everybody else's, but nonetheless, the laws should be written specifically for me" dictatorship. I have no plans for kids either, but am not so selfish that I believe that people who do want kids should be impaired in their ability to pass on an inheritance. After all, I realize that I too had parents and inherited from them. Perhaps this does not apply in your case?
A movie studio can make a billion dollars off of a movie in five years. Your objection would seem to point to copyright terms being too long in general rather than them being too short.
No, his objection points to the term needing to exist after the inventor or author's death, to protect older inventors and authors. That the term is too long overall is a different argument. You could have a 5 year term, but that doesn't help the author who dies the day after publishing if it doesn't extend past his or her death.
"The way the patent laws work, and have worked for 200 years, is that when someone else uses it—whether intentionally or unintentionally—they owe a reasonable royalty," said Melsheimer. "It's not necessarily a function of bad intent or malicious planning. The notion that the original inventor didn't succeed in commercializing the invention is, legally speaking, not relevant.""
Patents are absolute monopolies which allow any and all royalty rates ... reason doesn't enter into it.
Not so. Patents are absolute monopolies that can be used either for injunctive relief, which allows no royalties by definition because the infringer is no longer allowed to continue infringing; or for monetary damages, which allows a "reasonable royalty". In other words, you can either get 0 royalties and have an absolute monopoly, or you can get a reasonable royalty and no monopoly. You simply cannot have "any and all royalty rates," like 100% of revenue or infinite dollars per unit or whatnot. Check out 35 USC 284.
This is essentially true. If a software patent was required to have sample code implementing (thus making more precise) the patent claims, it would be exposed as a mathematical operation and one that is completely independent of the hardware. It becomes a method patent which, guess what, has been practically negated by Bilski.
Method patents haven't been "practically negated by Bilski." In fact, the Supreme Court explicitly said in Bilski that software and business methods were patentable, provided they were not merely abstract ideas. For example, a claim that recites software executed by hardware is not "a mathematical operation" any more than a machine with a mathematical gear ratio is "a mathematical operation" - or rather, both are executing mathematical operations, but are not merely mathematical operations.
Yes, all software is math and alone, without being tied to machine or otherwise non-abstract, is unpatentable. However, math executed by a machine is patentable because, no matter how much you hate software patents, you can't simply ignore half of the patent claim in order to declare it invalid.
Since when did patents ever legitimately cover algorithms in the first place?
The idea that 'doing it on a computer' is enough to get a patent is ridiculous. The computer is a general purpose calculating device that applies to any known practical algorithm. IT IS OBVIOUS to put your algorithm on a computer.
Agreed, but that's not what we're talking about here. You specified "known" algorithms. H.264 encoding wasn't a "known" algorithm prior to 2001, even without a computer.
Yeah, that's what I'm reading from this, though as said elsewhere, this is some claims in the patents were invalidated, but I'm wondering then can Moto re-apply with more detail? But yeah, does this mean anyone without a full listing of the algorithm (which is most 'with a computer/on the internet' patent these days) has a chance to have parts made invalid?
(i) Yes, but only those claims that invoke means-plus-function limitations under 35 U.S.C. 112(6). System claims, method claims, and Beauregard claims would still be valid;
(ii) And no, most "with a computer/on the internet" patents* do include a "full listing of the algorithm". They aren't required to include source code, or even pseudocode, but rather, as the judge notes:
The specification can express the algorithm “in any understandable terms including as a mathematical formula, in prose, or as a flow chart, or in any other manner that provides sufficient structure.” Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008) (internal citation omitted).
And honestly, it's pretty rare that a software related patent doesn't include a flow chart these days. Consider the beloved Amazon one-click patent - it has 5 flow charts, starting at figure 3. The fact that these three patents (really one patent and two continuations with the same specification and figures) didn't include a flow chart is an anomaly, not the norm.
*there are no "with a computer/on the internet" patents. People on Slashdot may characterize them that way, but there are no patents that include a claim of "A method, comprising: [known process], on the internet." The mere addition of the limitation "on the internet" can't be the key to patentability, because the internet is known. As a combination of two known pieces of prior art, it would be invalid under KSR. Instead, you'll always find that there's some additional element in the claim that is not involved in the off-line operation.
I believe this FUD got started because someone saw a dependent claim that said, "The method of claim 1, wherein the network is the internet," and suddenly thought that that was the key to patentability of the entire patent. Not true. It's really just a doctrine called claim differentiation. Patent claims are like Venn Diagrams, where dependent claims are bubbles within the large bubble of the independent claim from which they depend. So, if claim 1 says a network, and claim 2 says the network is the internet, then claim 1 must include other networks including LANs and VPNs as well as the internet. But that's it - claim 1, which never explicitly mentions the internet, must still be patentable on its own.
If a Judge (not a Jury) can invalidate Patent claims (are they THAT skilled in the science of these things?) then what the heck's the Patent Office for?
The Patent Office doesn't make law or decide legal issues - they decide factual ones. The patents in this case were not invalidated as obvious or anticipated by some prior art, which would be a matter of fact. Instead, the judge determined that 35 U.S.C. 112(2) requires disclosure of an algorithm when claims utilize the means-plus-function format of 35 U.S.C. 112(6). That's a matter of law. In other words, the "science of these things" is the science of jurisprudence, not the science of video encoding.
Or, short version: the Patent Office applied the law as it was properly understood at the time. The judge has now said, "no, that's not the proper law, it's this instead."
We were used to plentiful of uninformed /. 'news' over the last decade on patents and stuff; when 'filing' and 'granted' was considered the same, effectively, and lots of nonsense, like the contents of the abstract being considered as the underlying idea, or even as the legally binded grant, and much more.
In a nutshell, I expected the same, yet again, and was almost reluctant to even go into the details and actually read the document. OMG! It is a patent It does grant what the summary said Incredible.!!
There is a comment from AC further up ("Bad summary of patent") stating correctly that it does contain a last minute change as necessity for potential infringement. True. But I can't believe that there is no anticipating document before 2009, where a recurring delivery system of any sorts had a 'last check' of possible modifications by the customer before the actual delivery.
Much too often, I had to come to the defense of my former colleagues in patent examination. In this case, however, I need to agree when someone questioned if there are signs of life left in the office. Actually, I doubt it.
Uh, no, it doesn't grant what the summary said, and the fact that you ignored half of the limitations in the claims makes me wonder if those people in be examination corps were ever actually your colleagues.
Apparently, you can take any patent in the database, copy-pasta in a word processing document, go to the end of the document and add these characters:
And you have a new patent, ready for filing.
In a 2007 ruling the Supreme Court said these sorts of "combination patents" are not valid. So I can't see how the USPTO can justify continuing to issue them.
Because, contrary to what the above posters have ranted about, this patent does not claim an entirely known process "... ON A COMPUTER!" In fact, as you note, the Supreme Court said they weren't patentable in KSR (and they weren't patentable before it either) and there are NO totally known process "... ON A COMPUTER!" patents. Not one. People might try to paraphrase a patent that way, but their description is not the patent - the patent is the claims, and there are no issued patents with a claim like that.
I'm sure if the drive was useful in any meaningful way it would have been utilized.
Kind of like if Robertson screws were better than Phillips screws, they would have been utilized by Henry Ford? That stuff often doesn't work out the way sane people think it ought to.
Ah, but no one ever said that Robertson screws wouldn't work or violated fundamental laws of physics without explanation. Robertson screws are easily measurable... microwave drives, not so much. Bad analogy on you.
and there is no penalty for violating them.
This is dangerously false, at least in the United States (where Amazon lives). Google the Lanham Act.
Okay, I just googled it, and I don't see anything false about my statement. From the wiki: These provisions can be used to restrict, through the use of injunctions and damages, the importation of goods that infringe or counterfeit registered trademarks.
Since "common law" == "not registered", I stand by original my statement.
GP is right. Actions for infringement of a registered mark are unde sec. 32 of the Lanham Act. Actions for infringement of an *un*registered mark - I,e., a "common law" mark - are under sec. 43(a) of the Lanham Act. There's a reason why wiki is useful as a guide to find primary sources, like the statute, but is not a replacement for those sources,
And yes, I am an IP lawyer.
Nonsense. Even if you have all the evidence in plain view there can still be vast networks of shady dealings and huge cover-ups at work. Just look at the Kennedy Assassination!
That's a huge presumption that your argument relies on that you haven't shown to be true.
Many (but not all) conspiracy theories are actually rational lines of logic, stemming from different presumptions - such as whether "all the evidence" is actually available or not. To dismiss them out of hand simply because you have a different, unproven assumption is to make the same logic error you're accusing them of.
What, by creating artificial scarcity to jack up consumer prices? The Constitution was designed to support price-gouging?
Uh, yeah? It says it right there. What do you think "exclusive rights" are used for except excluding others and/or selling licenses?
I have no problem with protecting the work of people, and if you invent something new you should be able to benefit from it without someone just ripping it off.
But a patent to manipulate the economy to make sure that prices stay high solely to protect corporate profits? How does society benefit from that.
Ah, so you want the USPTO to qualitatively classify each patent as being "good for society"? So, for example, if a teetotaler is in charge of the office, no patents on new distillery technology. Or if a luddite is in charge, no patents on anything related to computers. Or if it's one of those anti-gun, anti-video game folks, then no patents on anything related to firearms or gaming? What about a Ralph Nader "Unsafe at any speed" person who bans patents on automobiles? What if it's a hardcore Christian who believes that patents should only be granted for things that lead one away from sin?
How does society benefit by having each inventor's protection be allowed or not allowed based on the capricious whim of some political appointee?
That's a business model, not a "writing" or "discovery", and it's definitely not "science and useful arts".
It's certainly one of the useful arts. The terms in the Constitution are archaic uses - "science" refers actually to things like literature, art, paintings, etc. that are covered by copyright, and "useful arts" is in contradistinction to aesthetic arts and refers to things that do something, like machines, industrial processes, or useful articles manufactured by industrial processes. In this case, the patent claims a machine and an article of manufacture that are both useful to industry. Why shouldn't that be patentable? Simply because you think it's unfair that a corporation makes money? If that's a legitimate complaint, then shouldn't your solution have something to do with taxing corporations or limiting profits, rather than creating a blanket rule that will harm sole inventors?
science and useful arts.
USPTO, please read the Goddamn Constitution.
... by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Sounds like they're doing exactly what the Goddamn Constitution says.
Those were creative works; you're confusing copyright with patents. Patents do not apply to Zynga's exploitation of indies.
Not at all - I'm addressing the false claim that "first mover advantage is tremendous" and therefore patents aren't necessary. It's not always true, as shown by those examples. The fact that they didn't have patents to protect them means that their sole protection was the first mover advantage, and that didn't help them one whit.
No, you're misreading it. To willfully infringe a patent, you must know about the patent, believe its valid, and go ahead and infringe anyway. What she's saying is that Samsung got expert opinions that said that Apple's patents weren't valid. Those experts were apparently wrong, according to the jury, but that belief takes out the second prong of willfulness, so Samsung didn't willfully infringe, and damages are not tripled.
But why wern't the 'damages' reduced? At least two of the patents from the trial were invalidated since.
That's an issue for appeal, not this stage of trial.
One very important sentence in the groklaw article:
Am I reading this correctly? Apple has invalid patents but still got damages out of them? Does this mean they are a one-shot deal and that other manufacturers can infringe now? In this case 1 billion dollars to render Apple's portfolio irrelevant was effectively very cheap, given the size of the relevant market.
No, you're misreading it. To willfully infringe a patent, you must know about the patent, believe its valid, and go ahead and infringe anyway. What she's saying is that Samsung got expert opinions that said that Apple's patents weren't valid. Those experts were apparently wrong, according to the jury, but that belief takes out the second prong of willfulness, so Samsung didn't willfully infringe, and damages are not tripled.
If anyone could copy them without any way to sue, why would anyone bother spending money on the invention? Much cheaper to wait for someone else to invent it, and then copy it.
I don't know why this stupid meme just won't die. TO MAKE MONEY of course. Sitting on your ass selling nothing doesn't make money. Sitting on your ass and trying to sell a 10 year old product also doesn't make money when someone else is selling something newer and better. First mover advantage is tremendous. New shit sells
Tell that to TinyTower or Crush the Castle or any of the indie developers who saw Zynga or another company come out with a nigh-identical product a few weeks later, and then bury them via their better advertising networks.
"this person infringed a patent willingly" requires that they haven't just harmed the patent owner, but they've harmed society because they're diminishing the exclusive incentive behind granting that patent
Is this only me who can't get the subtle meaning in this statement. Can this be put in more realistic terms?
Sure. Simply read the next two sentences:
If willful infringement causes inventors to decide to keep trade secrets, then we're all farked and those infringers should be harshly punished. But until then and particularly where infringers aren't willful, tripling damages seems incredibly out of proportion to the wrong.
General feelings from the Apple side is that this is unfortunate but would rather Apple stop wasting time on it. General opinion from the Samsung/Android side is, **** Apple, waste as much money as possible.
This had *nothing* to do with feelings. Apple is unable to maintain its massive mark-ups of rebadged foxconn phones through innovation; its massive market share gone; the days of the iPhone killer long behind us; its marketing machine pushing it as the *one* phone turning on Apple.
[cough]iPhone snags its highest U.S. market share ever[/cough]
No. Because she doesn't find her jury foreman to be a disturbing failure of vor dire. It's a patent case and he's a wannabe patent troll. If she doesn't find that problematic, one wonders what it would take.
A "disturbing failure of voir dire" means "Samsung's lawyers failed to ask relevant questions of the jury, failed to investigate the jurors, and failed to look through their own records of who they've sued in the past"... or really, it means Samsung absolutely knew who Hogan was and held the past conflict in check in case the jury decided against them. Who are we kidding - if the jury had decided for Samsung on every count, would they be demanding a new trial because of Hogan's past? Of course not. Since they had every opportunity to investigate that past and likely knew of it, they can't play "ace up our sleeve" and spring it on the court post-judgement. Trials only work like that in the movies.
I give you exclusive rights to an invention, in exchange for you publishing your technical specifications, white papers, etc.
But current patents don't actually require you to publish your technical specifications, white papers, etc. You just have to publish the patent application.
And I agree, that's a failing in current patent law that should be addressed by Congress. The current test is whether one of ordinary skill in the art could recreate the invention from the specification, not whether any n00b could do so, but maybe the latter would be preferable.
That said, the specification is not required to be the sole disclosure, and companies can publish technical specifications and white papers without losing their patent rights, unlike with trade secrets. Maybe a better solution is that a compulsory royalty of x% can be increased for each additional piece of documentation that a company publishes. Just the spec? You get n%. Functional descriptions? n+m%. White papers? n+o%. Etc. More disclosure = more money, which is what society really wants, in the end.
Said values of n, m, o, etc. would of course be dependent on market analysis and the value of the invention.
Judge Koh knew that she has seriously fcuked up in the original trial.
I'm sure you have some precedent or legal doctrine to cite in support of this beyond "I hate people who disagree with me"?
This second round ruling - that Samsung does not "willfully" infringe on Apple's patents - is nothing less than a face saving move.
No, it's pretty reasonable. Willful infringement, under the current law, requires almost malicious behavior in which the infringer acknowledges that they infringe the patent, but then go ahead anyway. Basically, they have to be evildoers: "I think the patent is invalid" or "I think our system is different" isn't enough - they have to actually say "the patent is valid, and our system is an identical copy, and fark those bastards because muwahahaha!" And that results in potentially tripled damages.
But patents aren't about who's good and moral and who's evil and malicious... they're about who stepped up and publicized an innovation to share it with everyone else, and who hid documents as trade secrets in an attempt to capitalize on them forever. As Jefferson said, an exclusive monopoly is an embarrassment to society that is only conscionable if society benefits from granting it. It's a flat economic decision: I give you exclusive rights to an invention, in exchange for you publishing your technical specifications, white papers, etc., because society takes the long view and giving exclusive rights for 20 years isn't so bad if you're thinking in terms of centuries or milleniums.
So to get to a level of "this person infringed a patent willingly" requires that they haven't just harmed the patent owner, but they've harmed society because they're diminishing the exclusive incentive behind granting that patent. If willful infringement causes inventors to decide to keep trade secrets, then we're all farked and those infringers should be harshly punished. But until then and particularly where infringers aren't willful, tripling damages seems incredibly out of proportion to the wrong.
Disclaimer: I'm a very pro-patent patent attorney, though I am on the drafting and prosecution side, and not litigation. We tend to be pro-inventor, and less pro-cut everyone's throat and get as much blood as possible.
how did Samsung unwillingly infringe? By copying the complete design of the original iPhone, they were just doing what a lot of Koreans do: make copies of original American products. My ex-gf was involved in a sportswear company and it was part of her job to create infringing designs so people would believe they were buying original clothes from the famous labels she stole the look from.
... like we're supposed to believe a Slashdotter even has an ex-gf?
From the summary:
She also ruled that there won't be any more money for Apple
From the article:
So, Samsung owes Apple US $1 billion for a non will ful infringement.
"More" in this case would be $3B as da,ages may be tripled for willful infringement.