There's nothing non-obvious with just about any software.
That's an odd statement. If there's nothing non-obvious in software, then why are there still developers? Why haven't we had 3D UIs with head tracking for decades? Why are people looking for new encryption systems, and why are there any that haven't already been cracked?
Basically, I think you're using a different definition of "non-obvious" than the legal one.
They also exist in every other patent system, including Europe's, despite what some people would have you believe. They actually have the same rule as in the US - software per se is unpatentable, but a software method performed by a machine, or a machine executing software, or a DVD including software instructions are all patentable.
Anyone got a citation for this, that Congress does not have the power to limit patents which already have been granted? AFAIK patent exist completely at the pleasure of Congress.
Patents have been held to be property, and are therefore subject to due process rights against seizure by the government (there are also arguments about them being a legal entitlement). While Congress could abolish the patent act tomorrow, they probably couldn't make it retroactive or take away existing patents.
Who says they're unreasonable? Maybe Moto's demands are...
Realizing that apple is offering quite a bit less then even half a pecent, and while recognizing that the patents are valid they refuse to be responsible for the past, it doesn't take much sanity to see Apple is trying to leverage the threat of a long drawn out lawsuit to avoid paying for their past infringement.
But they're not recognizing that the patents are valid... I'm sure they're even saying "we believe the patents are invalid but will pay you $1 per device to go away." In fact, under the Federal Rules of Evidence, settlement offers can't be used as evidence of liability, precisely because they want to encourage this sort of non-liability admitting settlements that make suits go away.
They were ordered to make a statement that Samsung had not copied the iPad and on reading their statement, which ends with a summary that clearly says that Samsung had copied the iPad. That statement clearly does not comply with the order.
No, they were ordered to make a very specific statement, which appears in the very first paragraph of their statement:
On 9th July 2012 the High Court of Justice of England and Wales ruled that Samsung Electronic (UK) Limited's Galaxy Tablet Computer, namely the Galaxy Tab 10.1, Tab 8.9 and Tab 7.7 do not infringe Apple's registered design No. 0000181607-0001. A copy of the full judgment of the High court is available on the following link www.bailii.org/ew/cases/EWHC/Patents/2012/1882.html.
They complied with the order to the letter, but certainly not to the spirit of it. Thus, it's wrong to say they didn't comply with the previous order. Rather, the court has now ordered additional, more specific requirements for them to comply with.
Have you looked at the design patent? I've already mentioned all of the identifying features that I've been able to get from it. If there's something you think that I'm missing, feel free to say so.
Corner radius, front aspect ratio, depth to width ratio, curvature of the back, bezel size, bezel orientation, screen placement, etc., etc. Honestly, it would be tough to verbally describe all of the features of a design, just like it would be tough to verbally describe a painting in full and complete detail. The proper comparison is a visual one - hold up the design patent, hold up that rounded rectangular prism I sent you, and see if you can tell them apart. I bet you can.
Okay, fine, a rectangular prism with rounded corners.
Does the center figure here look like an iPad? Would a reasonable observer, looking at that figure and the figures in the design patent say, "gosh, I can't tell them apart." No. You're still ignoring features in the design patent.
Look, as long as you keep saying "well, it's essentially this" rather than "the design patent shows this, and this, and this," you're going to be disregarding features, by definition.
The 'under this title' part of the reasoning for debate is moot anyway since the law is meant to be applied equally - and equal application would mean 'lawfully made under this title' when the law agrees in both governing states (which is not even being argued.)
First, I think you're confusing "equal protection" with this "equal application" thing, which is not actually a requirement.
Second, the law here includes importation rights, which clearly must be differently applied to products inside the country vs. products outside the country, by definition.
While I am in favor of a number of unenumerated rights and liberal reforms that have come over the centuries, I would prefer that the important ones were actually enshrined explicitly in Constitutional amendments or explicit statutes, rather than "interpreted" to magically appear somewhere in the Constitution one day.
So, you want to specifically disregard the 9th amendment?
I firmly believe that the founding fathers intended for the constitution to be "as is". Black and White. It means what it says and trying to conjure up a ruling because times change a little bit doesn't give any court the right or power to use a personal interpretation to make a ruling. Why do I believe this? Well they also gave the power to add, remove, amend the constitution through a very lengthy process. This tells me that changing the constitution in any way was very important and it was not meant to be arbitrarily changed at a whim or misinterpreted by someones prejudice. Think about it - technically any judge on any court can say , "well i interpret this to mean that so I am ruling X". That gives too much power to judges and I think most of us here understand that the founders didn't want this..
First, of course judges are meant to have that power, otherwise the three branches of the government would not be co-equal checks and balances.
Second, of course the Founding Fathers intended that, because they didn't immediately amend the Constitution to remove that power after Marbury v. Madison... a case that was an argument between Jefferson and John Adams, presided over by John Marshall. Y'know... the Founding Fathers. It's not like they wrote the Constitution and then immediately disappeared, never to be heard from again.
Third, look at the document. It's 19 pages. That's it. You know what's even longer? The original act regulating procedures in the federal court, passed in 1789, at 20 pages. Clearly, the Constitution is not meant to be comprehensive and exhaustive. It's supposed to be rough guidelines, to be interpreted as necessary, and anyone who thinks it's supposed to be strictly interpreted must also assume that the Founders were unimaginative idiots who wrote 19 pages and said, "okay, done, that covers everything." It also requires them to explicitly disregard the 9th and 10th amendments.
The judge specifically spelled out what Apple was suppose to post.
And Apple posted exactly that.
Apple didn't follow these instruction by attaching all the other cruft to the ad therefore they haven't fulfilled the court order.
On the contrary, nothing in the order said "Apple, you have to post this and only this," or "Apple, you may not post anything other than this." You may argue that they haven't followed the spirit of the instructions, but they certainly complied with the explicit instructions.
Apple didn't even follow the letter of what the judge told them to do (and it was not a request, it was a court order) The judge told them to acknowledge that Samsung did not infringe. Rather than do that, all they did was acknowledge that *court* had determined that Samsung did not infringe. This is a mere recitation of historically verifiable facts, and not an acknowledgement that Samsung did not infringe, which is what the judge told Apple to do.
Actually, the court specifically required them to post the statement:
On 9th July 2012 the High Court of Justice of England and Wales ruled that Samsung Electronic (UK) Limited’s Galaxy Tablet Computer, namely the Galaxy Tab 10.1, Tab 8.9 and Tab 7.7 do not infringe Apple’s registered design No. 0000181607-0001. A copy of the full judgment of the High court is available on the following link www.bailii.org/ew/cases/EWHC/Patents/2012/1882.html.
... which appears as the first paragraph in the statement.
Come on, do you think a judge would have issued an order that says "you have to 'say Samsung doesn't infringe' and make an apology, but I'm not going to specify how or what apology would qualify, and if you don't apologize sufficiently in my opinion, I'll hold you in contempt"?
Which is not, one might note, actually on the homepage of their UK website (which is one of its EU websites), which homepage contains neither the notice required by the order to be placed "on the home pages of its EU websites", nor the link to the judgement required to be placed as part of that notice, but does contain a link which says it is to a "Samsung/Apple UK Judgement" which links instead to the page linked in TFS, which contains the notice text, link to the judgement, and then a bunch of other Apple commentary.
It seems to me that the bigger deal than them adding the additional language after the notice text is the fact that they haven't done what the order required, which is placing the notice on the homepage of their EU websites. And since the order specifically references the use of hyperlinks within the notice, it seems that the order is quite clear in distinguishing where content is placed vs. where hyperlinks to content are placed, so placing a hyperlink to a page containing the notice where they are required by the order to place the notice itself is nonresponsive.
You would be right, going by the original decision, but the UK appeals court modified it to say that Apple could put a link on their home page, acknowledging that requiring the statement itself on their home page would adversely affect the design of the page.
Not to mention their libelous assertions that the US case found the Galaxy Tab had infringed when it was specifically specified by the jury that it didn't.
Not sure how this got a +5 insightful, considering the statement doesn't say that at all:
A U.S. jury also found Samsung guilty of infringing on Apple's design and utility patents, awarding over one billion U.S. dollars in damages to Apple Inc.
That statement is entirely true, and doesn't mention the Tab.
I'm not arguing that design patents shouldn't be allowed. All I meant is that the design patent that was asserted against Samsung really is just a rectangle with rounded corners. The only other elements that one could possibly argue are required by the design are what appear to be an LED and a connector of some kind, but it isn't all that clear what they are supposed to be.
Rectangles are two-dimensional, yes? The design patent showed a three-dimensional design. Therefore, by definition, it wasn't "really just a rectangle with rounded corners". The law doesn't disregard the features you're ignoring.
Samsung: That's our standard rate for those that don't want to cross-license.
DOJ: "[Citation needed]. As noted, you've never charged anyone the standard rate before. We'll do our own investigation and determine that the fair non cross-license rate should be... $3. That okay with you? The alternative is that it's still $3, but we also fine you $3 billion for antitrust violations."
Samsung however did agree to license certain patents at a fair price, and they are trying to charge some vendors (who compete more aggressively and charge them a lot for patents, e.g. Apple) significantly different terms than others
I was under the impression that the vendors that got lower prices did so because of cross-licensing agreements.
Samsung: "Oh, you want this FRAND patent but don't want to pay $6? Okay, well how about you license us the technology for your patent xxxxx, and we'll lower the rate to $1"
Normal Vendor: "That sounds reasonable. Patent xxxxx is trivial compared to your standards essential patents. Deal."
Apple: "NO WAY! We don't want to pay a dime!"
DOJ: "Hey, Samsung, how did you come up with that $6 figure, six times what you charge others for a license? We notice that you never have actually charged anyone $6 for a license. Do you have substantive evidence that all of those cross-licenses were worth $5, or are you pulling this $6 number out of your ass?"
Samsung: "... Uh... Rounded corners! Slide to unlock! Rectangles! Court of public opinion! Help?"
Or, from another perspective, Bob is seeking immediate personal returns by pushing back society's returns, while I am accepting lesser or no immediate personal returns by bringing forward society's returns - of which I shall hopefully partake as a member. Bob's a short-term investor while I'm a long-term investor. Regarding the "unpredictable" tag, how so? You know Bob is selfish, he will go for the quick reward, you know I am altruistic, I will go for the long reward. Or are you using it in the sense that, since you can't as easily predict what I will do with a given discovery because I will attempt to consider its societal ramifications, you can't as easily take financial advantage of my actions? I don't immediately see how that's bad for society (you, perhaps, but not society)?
1) There's the rub... I hope you're altruistic (just as I hope Bob would be), but I don't know you are. What if you change your mind? The benefit of the Bob-exchange is that I can offer something in exchange that I believe has value, and thus try to play to his economic interests. With you, I have no leverage to entice your interests - it's just the goodness of your heart that I'm relying on.
2) Technically, you're not actually going for the long reward in contradistinction to Bob... While Bob gets his quick reward of a monopoly, being part of society, he also gets the benefit of an enlarged public domain. You forgo the quick reward and get the same long term reward. So, Bob objectively gets a better deal than you, as opposed to an argument between long term vs. short term investment strategies. This is why we can rely on Bob to do the exchange - either he gets the same deal as everyone if you publish, or he publishes and he gets the same deal as everyone plus his limited monopoly. Free money on the table.
Whereas if Bob had published without patenting, Charlie could still have used that knowledge, created widget Y, and it would be even cheaper because - all else being equal - Charlie's costs would've been less without having to pay Bob royalties. Now, Charlie could of course decide not to pass on those savings, but then all else is not equal.
Quite true, but I feel it's a reasonable price to pay, rather than relying on Bob.
Since we seem to be getting to a fundamental point, I'll skip ahead slightly...
First, as you point out, we can't rely on humanity being fundamentally altruistic. Therefore, those who suggest simply abolishing patents are (presumably?) proposing that society would at least be better off with a return to trade secrets and reverse engineering. Since your argument has been succinct and informative so far, I'm curious as to why you think this would be truly worse for society (not for the inventors; for society)?
First, thank you. This has been a fun discussion, and I agree with your points as a theoretical, but I don't believe that people would be so altruistic. Further, I don't see any need to change the system based on that - if people are altruistic, then they give up patent rights, and society wins. If they're not, they get the exchange, and in the long term, society still wins. This leads to...
Yes, I think abolishing patents and reverting to either (i) altruistic people publishing out of the goodness of their hearts, or (ii) trade secrets would be bad for society. While we might prefer it, I believe that (i) is so unlikely to occur on a significant scale that we'd be losing out on many innovations (not to knock FOSS, but the number of new patent applications file each year vastly outnumbers the number of new FOSS projects. Even if only a tenth of them are valid, then that's still more improvements). As for (ii), trade secrets are bad. Really bad. They last literally forever, provided you keep the secret. So, you end up with an increase in corporate espionage (which is bad and economically inefficient), and an increase in heavy-handed restrictive contracts and l
You spend a year researching widget X. Bob on the other side of the country also spends a year researching widget X, but he starts a day before you. On Monday he patents his discovery, and begins making and selling it. On Tuesday you publish your discovery in a journal but don't patent it, since you believe it's better for society that everyone share their knowledge freely, and begin making and selling it. Unfortunately it turns out Bob is a complete selfish prick, and when the two of you find out about each other, demands far more money than you can afford - and thanks to his government-issued piece of paper now nobody but him will be selling widget X (and at an exorbitant price) for the next seventeen years.
So tell me, in such cases, how is it better for society that there be patents?
It encouraged Bob to publish on Monday, thus enlarging the scope of public knowledge. The fact that you may or may not have done so later is irrelevant, because it was mere speculation as to whether you would. Bob, at least, is acting as a rational actor, getting payment for his contribution. You, on the other hand, are an altruist - noble, but unpredictable. Society must be pragmatic and choose the known exchange over the unknown wishing.
Furthermore, so Bob gets a monopoly for 17 years (20 from date of filing now. The 17 year thing was the old 1990s law). So? Society must thing long term. 20 years from now, widget X is public domain, free for everyone. Hooray! Society benefits.
Additionally, thanks to Bob's publication, Charlie uses that knowledge as a stepping stone to create widget Y, which he patents and publishes. Bob wants a license to Y, and being a rational actor, cross-licenses with Charlie. Now, society gets access to both widget Y and widget X, at a reduced cost because now there are two competitors in the market. Society is looking really good right now.
And finally, there's you. You get annoyed at Bob (and Charlie) and decide, screw them, you're going to make widgets too. You start making widget X, and Bob sues you for patent infringement. Knowing you'd lose at trial on liability and infringement and not wanting to waste the money on legal fees, you quickly stipulate to both and the trial jumps right to damages. How much are the damages for patent infringement of the Widget X patent? Less than 100%, by definition. The jury looks at the market, listens to the expert testimony, and decides that you owe Bob an outrageous 10% royalty. Now there are three players in the market. Your profits are lower than Bob's because you have that additional royalty cost, but you're still making a nice profit. Society benefits, Bob benefits, you benefit, and everyone's a winner.
Why is it that our justice system claims to believe in "innocent until proven guilty" but applies the reverse when it comes to patents and independent invention?
It doesn't do any such thing. Independent invention is not "guilt". It's not even liability. You can invent all you want and never infringe a single patent. The patent only applies when you make, use, sell, or import an invention... and you're still innocent until proven guilty by a preponderance of the evidence. If the patent owner can't prove you ever made the invention, then you can't be held liable, by definition.
Also, feel free to replace "widget X" with "polio vaccine". Salks, the inventor of the vaccine, refused to patent his discovery. What if a "Bob" had discovered the vaccine a week earlier, patented it, and restricted its availability only to the wealthy - because hey, he can make more money that way?
Then, thanks, Bob, for doing the valuable research to cure Polio. 20 years from now, it'll be eradicated from history. Possibly earlier, if the government decides that they want a compulsory license.
And how many people are already stuck wasting time checking whether one of
By "winner takes all" I meant that if you arrive at an invention independently, the law still commands you to pay any existing patent holder if you want to earn an income from your efforts.
Ah. That's quite reasonable. Patents aren't a reward for inventing something neat. That's what Nobel prizes and similar things are for. Patents are a payment, grudgingly made, in exchange for public disclosure. If you're not disclosing anything new to the public, or if you're a Johnny-come-lately who invents the same thing as someone else and they've already told the public about it, then why should we protect you at their expense? In fact, allowing you to simply claim "independent invention" and get out of royalties would undermine the encouragement we've given to the inventor who did publicly disclose his invention. As a result, he'll be less likely to disclose in the future and will keep trade secrets instead, stifling innovation.
In other words, you pay royalties, because it's better for society than that everyone keeps trade secrets.
there is a difference between "existed" and "became the norm". Until 1988 there were under 75k submissions of US origin per year, usually under 70k. Now it's more like 200-250k per year. I believe this indicates a shift in mindset that places a lot more emphasis on patents as a business tool than existed previously.
GDP in 1988 was $7.49 trillion, and we're up to $13.5 trillion now, and now have an information-based economy as compared to a manufacturing-based economy. I believe that justifies that growth.
I believe he's using the original definition - "non-practicing entities" or companies that exist solely for research and licensing, rather than manufacturing - as opposed to the new Slashdottian definition of "any company that I don't like who uses patents".
Seriously though, has anyone ever subjected the patent system to a proper, scientifically rigorous examination of its socioeconomic optimality?
Seems to me that it has last two fundamental flaws; it relies on "winner takes all" rewards and "obey us and suffer, or disobey us and suffer a lot more" penalties.
Not really. The "winner takes all" reward only applies with regard to design patents. Otherwise, damages can be limited to reasonable royalties. It only seems like such a huge winner-takes-all when the background revenue numbers are mindbogglingly huge. For example, prior to this Apple-Samsung suit (which was 80% about design patents), the 'biggest patent suit evar' was Microsoft v. i4i, with damages of $300 million... over the course of 4-5 years of the suit, during which Microsoft made approximately $40-50 billion... on sales of Office alone. A roughly 1% royalty (which would have been more like.2% if they settled early) is not really a "winner takes all".
This is a false maxim. Innovation happened at a (relatively speaking) much faster pace before patents became the norm. The only thing protecting them were trade secrets. Which worked just fine. Patents came along to spur innovation because things like steam engines (probably a bad example, but you get the idea) were being kept as trade secrets and in order to compete you would have to develop your own from scratch.
Patents have been around for 500 years and were one of the first acts enacted in this country after the Constitution, so I'm not sure exactly when you're referring to.
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It is impossible to keep such an "invention" secret while still profiting from it, therefore the original purpose of patents is completely missed.
Not with restrictive NDAs and similar license agreements. But that'd be a horrible thing for the industry.
Essentially, (at least most) software patents are for abstract ideas that anyone could come up with, rather than an actual algorithm or mechanism.
That someone could come up with an idea doesn't make it obvious, particularly if no one yet has come up with the idea.
There's nothing non-obvious with just about any software.
That's an odd statement. If there's nothing non-obvious in software, then why are there still developers? Why haven't we had 3D UIs with head tracking for decades? Why are people looking for new encryption systems, and why are there any that haven't already been cracked?
Basically, I think you're using a different definition of "non-obvious" than the legal one.
Software Patents are a US idea and a US problem
They also exist in every other patent system, including Europe's, despite what some people would have you believe. They actually have the same rule as in the US - software per se is unpatentable, but a software method performed by a machine, or a machine executing software, or a DVD including software instructions are all patentable.
Anyone got a citation for this, that Congress does not have the power to limit patents which already have been granted? AFAIK patent exist completely at the pleasure of Congress.
Patents have been held to be property, and are therefore subject to due process rights against seizure by the government (there are also arguments about them being a legal entitlement). While Congress could abolish the patent act tomorrow, they probably couldn't make it retroactive or take away existing patents.
Who says they're unreasonable? Maybe Moto's demands are...
Realizing that apple is offering quite a bit less then even half a pecent, and while recognizing that the patents are valid they refuse to be responsible for the past, it doesn't take much sanity to see Apple is trying to leverage the threat of a long drawn out lawsuit to avoid paying for their past infringement.
But they're not recognizing that the patents are valid... I'm sure they're even saying "we believe the patents are invalid but will pay you $1 per device to go away." In fact, under the Federal Rules of Evidence, settlement offers can't be used as evidence of liability, precisely because they want to encourage this sort of non-liability admitting settlements that make suits go away.
They were ordered to make a statement that Samsung had not copied the iPad and on reading their statement, which ends with a summary that clearly says that Samsung had copied the iPad. That statement clearly does not comply with the order.
No, they were ordered to make a very specific statement, which appears in the very first paragraph of their statement:
On 9th July 2012 the High Court of Justice of England and Wales ruled that Samsung Electronic (UK) Limited's Galaxy Tablet Computer, namely the Galaxy Tab 10.1, Tab 8.9 and Tab 7.7 do not infringe Apple's registered design No. 0000181607-0001. A copy of the full judgment of the High court is available on the following link www.bailii.org/ew/cases/EWHC/Patents/2012/1882.html.
They complied with the order to the letter, but certainly not to the spirit of it. Thus, it's wrong to say they didn't comply with the previous order. Rather, the court has now ordered additional, more specific requirements for them to comply with.
Have you looked at the design patent? I've already mentioned all of the identifying features that I've been able to get from it. If there's something you think that I'm missing, feel free to say so.
Corner radius, front aspect ratio, depth to width ratio, curvature of the back, bezel size, bezel orientation, screen placement, etc., etc. Honestly, it would be tough to verbally describe all of the features of a design, just like it would be tough to verbally describe a painting in full and complete detail. The proper comparison is a visual one - hold up the design patent, hold up that rounded rectangular prism I sent you, and see if you can tell them apart. I bet you can.
Okay, fine, a rectangular prism with rounded corners.
Does the center figure here look like an iPad? Would a reasonable observer, looking at that figure and the figures in the design patent say, "gosh, I can't tell them apart." No. You're still ignoring features in the design patent.
Look, as long as you keep saying "well, it's essentially this" rather than "the design patent shows this, and this, and this," you're going to be disregarding features, by definition.
The 'under this title' part of the reasoning for debate is moot anyway since the law is meant to be applied equally - and equal application would mean 'lawfully made under this title' when the law agrees in both governing states (which is not even being argued.)
First, I think you're confusing "equal protection" with this "equal application" thing, which is not actually a requirement.
Second, the law here includes importation rights, which clearly must be differently applied to products inside the country vs. products outside the country, by definition.
While I am in favor of a number of unenumerated rights and liberal reforms that have come over the centuries, I would prefer that the important ones were actually enshrined explicitly in Constitutional amendments or explicit statutes, rather than "interpreted" to magically appear somewhere in the Constitution one day.
So, you want to specifically disregard the 9th amendment?
I firmly believe that the founding fathers intended for the constitution to be "as is". Black and White. It means what it says and trying to conjure up a ruling because times change a little bit doesn't give any court the right or power to use a personal interpretation to make a ruling. Why do I believe this? Well they also gave the power to add, remove, amend the constitution through a very lengthy process. This tells me that changing the constitution in any way was very important and it was not meant to be arbitrarily changed at a whim or misinterpreted by someones prejudice. Think about it - technically any judge on any court can say , "well i interpret this to mean that so I am ruling X". That gives too much power to judges and I think most of us here understand that the founders didn't want this..
First, of course judges are meant to have that power, otherwise the three branches of the government would not be co-equal checks and balances.
Second, of course the Founding Fathers intended that, because they didn't immediately amend the Constitution to remove that power after Marbury v. Madison... a case that was an argument between Jefferson and John Adams, presided over by John Marshall. Y'know... the Founding Fathers. It's not like they wrote the Constitution and then immediately disappeared, never to be heard from again.
Third, look at the document. It's 19 pages. That's it. You know what's even longer? The original act regulating procedures in the federal court, passed in 1789, at 20 pages. Clearly, the Constitution is not meant to be comprehensive and exhaustive. It's supposed to be rough guidelines, to be interpreted as necessary, and anyone who thinks it's supposed to be strictly interpreted must also assume that the Founders were unimaginative idiots who wrote 19 pages and said, "okay, done, that covers everything." It also requires them to explicitly disregard the 9th and 10th amendments.
...they'll probably say that it's not their job to decide whether the law is stupid or unjust.
And it isn't. The legislature makes the law, and the courts just figure out how it applies to each case.
... or whether it contradicts other laws or the Constitution.
The judge specifically spelled out what Apple was suppose to post.
And Apple posted exactly that.
Apple didn't follow these instruction by attaching all the other cruft to the ad therefore they haven't fulfilled the court order.
On the contrary, nothing in the order said "Apple, you have to post this and only this," or "Apple, you may not post anything other than this." You may argue that they haven't followed the spirit of the instructions, but they certainly complied with the explicit instructions.
Apple didn't even follow the letter of what the judge told them to do (and it was not a request, it was a court order) The judge told them to acknowledge that Samsung did not infringe. Rather than do that, all they did was acknowledge that *court* had determined that Samsung did not infringe. This is a mere recitation of historically verifiable facts, and not an acknowledgement that Samsung did not infringe, which is what the judge told Apple to do.
Actually, the court specifically required them to post the statement:
On 9th July 2012 the High Court of Justice of England and Wales ruled that Samsung Electronic (UK) Limited’s Galaxy Tablet Computer, namely the Galaxy Tab 10.1, Tab 8.9 and Tab 7.7 do not infringe Apple’s registered design No. 0000181607-0001. A copy of the full judgment of the High court is available on the following link www.bailii.org/ew/cases/EWHC/Patents/2012/1882.html.
... which appears as the first paragraph in the statement.
Come on, do you think a judge would have issued an order that says "you have to 'say Samsung doesn't infringe' and make an apology, but I'm not going to specify how or what apology would qualify, and if you don't apologize sufficiently in my opinion, I'll hold you in contempt"?
Which is not, one might note, actually on the homepage of their UK website (which is one of its EU websites), which homepage contains neither the notice required by the order to be placed "on the home pages of its EU websites", nor the link to the judgement required to be placed as part of that notice, but does contain a link which says it is to a "Samsung/Apple UK Judgement" which links instead to the page linked in TFS, which contains the notice text, link to the judgement, and then a bunch of other Apple commentary. It seems to me that the bigger deal than them adding the additional language after the notice text is the fact that they haven't done what the order required, which is placing the notice on the homepage of their EU websites. And since the order specifically references the use of hyperlinks within the notice, it seems that the order is quite clear in distinguishing where content is placed vs. where hyperlinks to content are placed, so placing a hyperlink to a page containing the notice where they are required by the order to place the notice itself is nonresponsive.
You would be right, going by the original decision, but the UK appeals court modified it to say that Apple could put a link on their home page, acknowledging that requiring the statement itself on their home page would adversely affect the design of the page.
Not to mention their libelous assertions that the US case found the Galaxy Tab had infringed when it was specifically specified by the jury that it didn't.
Not sure how this got a +5 insightful, considering the statement doesn't say that at all:
A U.S. jury also found Samsung guilty of infringing on Apple's design and utility patents, awarding over one billion U.S. dollars in damages to Apple Inc.
That statement is entirely true, and doesn't mention the Tab.
I'm not arguing that design patents shouldn't be allowed. All I meant is that the design patent that was asserted against Samsung really is just a rectangle with rounded corners. The only other elements that one could possibly argue are required by the design are what appear to be an LED and a connector of some kind, but it isn't all that clear what they are supposed to be.
Rectangles are two-dimensional, yes? The design patent showed a three-dimensional design. Therefore, by definition, it wasn't "really just a rectangle with rounded corners". The law doesn't disregard the features you're ignoring.
Samsung: That's our standard rate for those that don't want to cross-license.
DOJ: "[Citation needed]. As noted, you've never charged anyone the standard rate before. We'll do our own investigation and determine that the fair non cross-license rate should be... $3. That okay with you? The alternative is that it's still $3, but we also fine you $3 billion for antitrust violations."
Samsung however did agree to license certain patents at a fair price, and they are trying to charge some vendors (who compete more aggressively and charge them a lot for patents, e.g. Apple) significantly different terms than others
I was under the impression that the vendors that got lower prices did so because of cross-licensing agreements. Samsung: "Oh, you want this FRAND patent but don't want to pay $6? Okay, well how about you license us the technology for your patent xxxxx, and we'll lower the rate to $1" Normal Vendor: "That sounds reasonable. Patent xxxxx is trivial compared to your standards essential patents. Deal." Apple: "NO WAY! We don't want to pay a dime!"
DOJ: "Hey, Samsung, how did you come up with that $6 figure, six times what you charge others for a license? We notice that you never have actually charged anyone $6 for a license. Do you have substantive evidence that all of those cross-licenses were worth $5, or are you pulling this $6 number out of your ass?"
Samsung: "... Uh... Rounded corners! Slide to unlock! Rectangles! Court of public opinion! Help?"
Or, from another perspective, Bob is seeking immediate personal returns by pushing back society's returns, while I am accepting lesser or no immediate personal returns by bringing forward society's returns - of which I shall hopefully partake as a member. Bob's a short-term investor while I'm a long-term investor. Regarding the "unpredictable" tag, how so? You know Bob is selfish, he will go for the quick reward, you know I am altruistic, I will go for the long reward. Or are you using it in the sense that, since you can't as easily predict what I will do with a given discovery because I will attempt to consider its societal ramifications, you can't as easily take financial advantage of my actions? I don't immediately see how that's bad for society (you, perhaps, but not society)?
1) There's the rub... I hope you're altruistic (just as I hope Bob would be), but I don't know you are. What if you change your mind? The benefit of the Bob-exchange is that I can offer something in exchange that I believe has value, and thus try to play to his economic interests. With you, I have no leverage to entice your interests - it's just the goodness of your heart that I'm relying on.
2) Technically, you're not actually going for the long reward in contradistinction to Bob... While Bob gets his quick reward of a monopoly, being part of society, he also gets the benefit of an enlarged public domain. You forgo the quick reward and get the same long term reward. So, Bob objectively gets a better deal than you, as opposed to an argument between long term vs. short term investment strategies. This is why we can rely on Bob to do the exchange - either he gets the same deal as everyone if you publish, or he publishes and he gets the same deal as everyone plus his limited monopoly. Free money on the table.
Whereas if Bob had published without patenting, Charlie could still have used that knowledge, created widget Y, and it would be even cheaper because - all else being equal - Charlie's costs would've been less without having to pay Bob royalties. Now, Charlie could of course decide not to pass on those savings, but then all else is not equal.
Quite true, but I feel it's a reasonable price to pay, rather than relying on Bob.
Since we seem to be getting to a fundamental point, I'll skip ahead slightly...
First, as you point out, we can't rely on humanity being fundamentally altruistic. Therefore, those who suggest simply abolishing patents are (presumably?) proposing that society would at least be better off with a return to trade secrets and reverse engineering. Since your argument has been succinct and informative so far, I'm curious as to why you think this would be truly worse for society (not for the inventors; for society)?
First, thank you. This has been a fun discussion, and I agree with your points as a theoretical, but I don't believe that people would be so altruistic. Further, I don't see any need to change the system based on that - if people are altruistic, then they give up patent rights, and society wins. If they're not, they get the exchange, and in the long term, society still wins. This leads to...
Yes, I think abolishing patents and reverting to either (i) altruistic people publishing out of the goodness of their hearts, or (ii) trade secrets would be bad for society. While we might prefer it, I believe that (i) is so unlikely to occur on a significant scale that we'd be losing out on many innovations (not to knock FOSS, but the number of new patent applications file each year vastly outnumbers the number of new FOSS projects. Even if only a tenth of them are valid, then that's still more improvements). As for (ii), trade secrets are bad. Really bad. They last literally forever, provided you keep the secret. So, you end up with an increase in corporate espionage (which is bad and economically inefficient), and an increase in heavy-handed restrictive contracts and l
Let's take your position and try an example.
You spend a year researching widget X. Bob on the other side of the country also spends a year researching widget X, but he starts a day before you. On Monday he patents his discovery, and begins making and selling it. On Tuesday you publish your discovery in a journal but don't patent it, since you believe it's better for society that everyone share their knowledge freely, and begin making and selling it. Unfortunately it turns out Bob is a complete selfish prick, and when the two of you find out about each other, demands far more money than you can afford - and thanks to his government-issued piece of paper now nobody but him will be selling widget X (and at an exorbitant price) for the next seventeen years.
So tell me, in such cases, how is it better for society that there be patents?
It encouraged Bob to publish on Monday, thus enlarging the scope of public knowledge. The fact that you may or may not have done so later is irrelevant, because it was mere speculation as to whether you would. Bob, at least, is acting as a rational actor, getting payment for his contribution. You, on the other hand, are an altruist - noble, but unpredictable. Society must be pragmatic and choose the known exchange over the unknown wishing.
Furthermore, so Bob gets a monopoly for 17 years (20 from date of filing now. The 17 year thing was the old 1990s law). So? Society must thing long term. 20 years from now, widget X is public domain, free for everyone. Hooray! Society benefits.
Additionally, thanks to Bob's publication, Charlie uses that knowledge as a stepping stone to create widget Y, which he patents and publishes. Bob wants a license to Y, and being a rational actor, cross-licenses with Charlie. Now, society gets access to both widget Y and widget X, at a reduced cost because now there are two competitors in the market. Society is looking really good right now.
And finally, there's you. You get annoyed at Bob (and Charlie) and decide, screw them, you're going to make widgets too. You start making widget X, and Bob sues you for patent infringement. Knowing you'd lose at trial on liability and infringement and not wanting to waste the money on legal fees, you quickly stipulate to both and the trial jumps right to damages. How much are the damages for patent infringement of the Widget X patent? Less than 100%, by definition. The jury looks at the market, listens to the expert testimony, and decides that you owe Bob an outrageous 10% royalty. Now there are three players in the market. Your profits are lower than Bob's because you have that additional royalty cost, but you're still making a nice profit. Society benefits, Bob benefits, you benefit, and everyone's a winner.
Why is it that our justice system claims to believe in "innocent until proven guilty" but applies the reverse when it comes to patents and independent invention?
It doesn't do any such thing. Independent invention is not "guilt". It's not even liability. You can invent all you want and never infringe a single patent. The patent only applies when you make, use, sell, or import an invention... and you're still innocent until proven guilty by a preponderance of the evidence. If the patent owner can't prove you ever made the invention, then you can't be held liable, by definition.
Also, feel free to replace "widget X" with "polio vaccine". Salks, the inventor of the vaccine, refused to patent his discovery. What if a "Bob" had discovered the vaccine a week earlier, patented it, and restricted its availability only to the wealthy - because hey, he can make more money that way?
Then, thanks, Bob, for doing the valuable research to cure Polio. 20 years from now, it'll be eradicated from history. Possibly earlier, if the government decides that they want a compulsory license.
And how many people are already stuck wasting time checking whether one of
By "winner takes all" I meant that if you arrive at an invention independently, the law still commands you to pay any existing patent holder if you want to earn an income from your efforts.
Ah. That's quite reasonable. Patents aren't a reward for inventing something neat. That's what Nobel prizes and similar things are for. Patents are a payment, grudgingly made, in exchange for public disclosure. If you're not disclosing anything new to the public, or if you're a Johnny-come-lately who invents the same thing as someone else and they've already told the public about it, then why should we protect you at their expense? In fact, allowing you to simply claim "independent invention" and get out of royalties would undermine the encouragement we've given to the inventor who did publicly disclose his invention. As a result, he'll be less likely to disclose in the future and will keep trade secrets instead, stifling innovation.
In other words, you pay royalties, because it's better for society than that everyone keeps trade secrets.
there is a difference between "existed" and "became the norm". Until 1988 there were under 75k submissions of US origin per year, usually under 70k. Now it's more like 200-250k per year. I believe this indicates a shift in mindset that places a lot more emphasis on patents as a business tool than existed previously.
GDP in 1988 was $7.49 trillion, and we're up to $13.5 trillion now, and now have an information-based economy as compared to a manufacturing-based economy. I believe that justifies that growth.
Uh, "legitimate patent trolls"?
I believe he's using the original definition - "non-practicing entities" or companies that exist solely for research and licensing, rather than manufacturing - as opposed to the new Slashdottian definition of "any company that I don't like who uses patents".
Seriously though, has anyone ever subjected the patent system to a proper, scientifically rigorous examination of its socioeconomic optimality?
Seems to me that it has last two fundamental flaws; it relies on "winner takes all" rewards and "obey us and suffer, or disobey us and suffer a lot more" penalties.
Not really. The "winner takes all" reward only applies with regard to design patents. Otherwise, damages can be limited to reasonable royalties. It only seems like such a huge winner-takes-all when the background revenue numbers are mindbogglingly huge. For example, prior to this Apple-Samsung suit (which was 80% about design patents), the 'biggest patent suit evar' was Microsoft v. i4i, with damages of $300 million... over the course of 4-5 years of the suit, during which Microsoft made approximately $40-50 billion... on sales of Office alone. A roughly 1% royalty (which would have been more like .2% if they settled early) is not really a "winner takes all".
This is a false maxim. Innovation happened at a (relatively speaking) much faster pace before patents became the norm. The only thing protecting them were trade secrets. Which worked just fine. Patents came along to spur innovation because things like steam engines (probably a bad example, but you get the idea) were being kept as trade secrets and in order to compete you would have to develop your own from scratch.
Patents have been around for 500 years and were one of the first acts enacted in this country after the Constitution, so I'm not sure exactly when you're referring to.