2. This isn't quite right. The primary purpose of patents is to encourage the publication of inventions and sharing of ideas. Without them, the profit motive would encourage trade secrets and hoarding of information and techniques. Say what you will about patents, obviousness, and longevity of protections, but they have succeeded brilliantly at getting everyone publishing everything in extensive detail.
If that is the goal of patents, it has become an utterly failed goal and the role of the U.S. Patent and Trademark Office certainly has not encouraged any actual documentation of the devices or concepts themselves. Sadly, I've read enough patent applications to realize that there is no possible way to glean much of any information at all from those documents in terms of being able to actually build the devices or concepts being described in them. Those applications are so full of legal descriptions that gleaning any technical data on how to do something simply can't be done.
I'll also note that if patents were so excellent as a means to share and distribute information about technical and engineering concepts, most engineers would have a bookshelf and likely even a full library of patent applications (especially expired patents) for them to review and to get ideas from. Instead, most engineers are explicitly encouraged to never read patent applications except in a narrow scope to help out with the legal defense of a company once they have been sued or are supposed to be giving expert legal testimony on the content of the patent. The only patent related items that you will ever see in an engineering office may be some plaques honoring employees who have been granted patents, but you would typically see lawyers who see any other patent applications or grants that belong to other companies taking those materials and throwing them into the shredder or burning them with likely a long talk to any engineer who is caught with them in a joint conference with a human resources exec, the immediate supervisor, and a lawyer along with some sort of form where that employee would have a long and embarrassing "lecture" (it wouldn't even be a conversation) and they would need to sign some paper as a condition of employment to never look at another patent application without direct approval of their supervisor.
You're reading the grandparent post wrong, as well as misunderstanding the point of the Patent Act. As noted above, patents encourage publication of inventions... As in, patents encourage publication elsewhere, such as functional specs, white papers, theses, etc. The documents that would otherwise be kept as trade secrets. It's not that the patent is meant to be the sole library, but that the patent allows the inventor to publish and show the world how the invention works in other documents and at trade shows, without losing their rights.
As you note:
If you want to share information about technology, try a textbook or some technical manual.
And patents encourage publication of those textbooks and manuals.
If you weren't a patent troll you'd contact companies for licensing ahead of time, and not wait for a product to get huge, then sue.
That is the real difference in methodology. Companies with legit patents will go and try to license their patent to everyone, and only sue when people refuse to license but use the technology anyhow. Patent trolls sit quietly and wait for things to become a big success and then sue for "damages" for their patent nobody has ever heard of.
No, that's a difference in terminology. From wiki:
Patent troll is a term used for a person or company who enforces patents against one or more alleged infringers in a manner considered aggressive or opportunistic with no intention to manufacture or market the patented invention.
Uniloc does market the patented invention. Therefore, they're not a troll. They may be a patent extortionist (or any one of several other terms describing aggressive litigants), and they could even be jerks or assholes. But if you accept that effective communication requires you to use common definitions for terms or else explicitly provide your own, then Uniloc is not a troll.
...applications for use on cellular phones and/or tablet devices that require communication with a server to perform a license check to prevent the unauthorized use of said application...
Sometimes Battle.net 2.0 is all about logging on to a server to play a singleplayer or LAN game.
The patent is narrower than that. You have to look at the claims, not just the abstract or the Slashdot summary.
Software patents are so dumb. Just because some idiot patents something obvious doesn't mean the rest of us should not be able to do the obvious thing. What if someone patented walking in a straight line? The rest of society would be relegated to drinking heavily, or inventing silly walks.
I think we can find prior art showing people walking in a straight line.
So, for instance, if we have touchscreen apps, scroll bars, and elements that only appear on activation, an application that combines the three of them would be rejected for non-obviousness?
Unless any of them teach away from the combination... For example, a scroll bar that says "always display me when the material is longer than the screen" would teach away from being combined with an element that appears only on activation, or would teach that "the material is longer than the screen" is the activation, so it should always display.
Basically, you have to put yourself in the position of someone in 2007... Would you have come up with this then? And when you say "of course I would," can you prove that?
Currently, the test is that if one or more pieces of prior art references or products, alone or in combination, teach or suggest each and every element in the patent claim, either inherently or expressly, the claim is obvious. This eliminates hindsight - all references must be from before the application was filed - and eliminates gut feelings - since references must be shown and mapped to the claims.
That's all fine and dandy, and probably judicially correct. Who cares about judicial correctness? It's a bad test. Why? Because it always passes. Everything was done first, once. That means everything's patentable (if applied by for the person who did it first, or at least, the person who first published it). Which totally discards the "non-obvious" portion of the patentability requirement, which leaves the current useless mess the USPTO is currently in.
Not so... I think you're confusing novelty ("something being done first, once") and obviousness. Obviousness doesn't require that it actually has been done - it merely requires that there's a combination of references that together, if combined, would teach or suggest everything in the claims. If you have a pillow, and someone else has a stool, I can't make a padded stool, even if no one's done it before.
Patents need more than to be novel. They need to be non-obvious to one skilled in the art. Just because you're the first to do something, doesn't mean you get a government-enforced monopoly on it. It's supposed to be something that significantly contributes to the body of human knowledge, something significant enough to be worth placing restrictions on the rest of the populace in order to find out how you did it.
That's absolutely right... but how do you prove that something is "non-obvious to one skilled in the art"? Patents are quasi-judicial decisions, so they're bound by the Constitutional requirement of due process. Just as a judge cannot look a defendant up on murder charges and say, without evidence, "I have a gut feeling that you're guilty," the patent office cannot look at a patent application and say, without evidence, "I have a gut feeling that this is obvious."
Currently, the test is that if one or more pieces of prior art references or products, alone or in combination, teach or suggest each and every element in the patent claim, either inherently or expressly, the claim is obvious. This eliminates hindsight - all references must be from before the application was filed - and eliminates gut feelings - since references must be shown and mapped to the claims.
I haven't looked closely at this application, but if no one was doing anything like it before, and you couldn't combine what people were doing before to get the same thing, then it probably wasn't obvious at the time of filing. It may be obvious as hell, now, in hindsight, but that's as irrelevant as determining someone is guilty based on what Nancy Grace says.
I'm not condoning physical violence, but I think wearable recording devices _should_ be resisted by the general public.
I would have sided with the victim except for the fact that he has presented these (crystal clear) images that he saved onto the device. His defense is that the device is for improved vision, yet improved vision does not require images to be retained. Retaining images is the part I am against.
You could have bothered to read the article, you know:
The computerized eyeglass processes imagery using Augmediated Reality, in order to help the wearer see better, and when the computer is damaged, e.g. by falling and hitting the ground (or by a physical assault), buffered pictures for processing remain in its memory, and are not overwritten with new ones by the then non-functioning computer vision system.
As a result of Perpetrator 1's actions, therefore images that would not have otherwise been captured were captured. Therefore by damaging the Eye Glass, Perpetrator 1 photographed himself and others within McDonalds.
You're correct in that a wearable device could be saving pictures without your knowledge, but the discussion is one of policy and based on a hypothetical that has not occurred: he did not intentionally save any images. Your particular outrage at the victim here is misplaced.
Please read the response I was replying to. He setup a video camera and took some video with permission and did not get thrown out. Reading comprehension is getting out of hand...
Agreed, and please read the response that one was replying to: "He checked the terms of use and found no restrictions against installing software, spyware or otherwise."
The great-grandparent disagreed with that, and you pointed out that "He asked permission and they allowed him to do this. RTFA."
In context, you must agree that it's reasonable to assume that "this" referred to "installing software, spyware or otherwise."
I'm not okay with Google Street View coming into my place of business and taking pictures of me and my colleagues without permission, no. But then, it wouldn't really be called "street" view, would it?
Ah, but you already gave them permission to do it (taking about Apple Store in this instance), you just have a problem with HOW the pictures are taken.
I understand your point, but I disagree... Street View is not permission creep because the public isn't asked for permission - rather, it's a question of legality and the balanced rights of the privacy of the person being photographed and the right of the photographer to record public information. Here (and in your hypothetical), the photographer has no such right, as it's not a public space - their sole claim is due to having explicit permission, except that they're going beyond the bounds of what was explicit.
It's permission creep: a positive response to 'can I take a picture here' doesn't imply 'I can install hidden networked cameras and publish photos of thousands of pictures taken over the course of weeks'.
So can I assume you're not OK with Google Street View?
I'm not okay with Google Street View coming into my place of business and taking pictures of me and my colleagues without permission, no. But then, it wouldn't really be called "street" view, would it?
Who owns Scansoft, who apart from GS are the other big winners from this transaction? They got the world's best speech rec software for a fraction of its true value - I wonder who they were advised by?
A mysterious company called Soldman Gachs, who have since gone out of business after a fire that destroyed all of their files.
More importantly, I don't get why anyone would advertise that 350M is being spent to create 20 "permanent" positions. That's 17.5M per fulltime job!
... for how many years, and does that 350M have any return? If those permanent positions are there for the next 50 years, and the plant starts making 50M per year in energy sales, then it's a pretty sweet deal.
Not that it necessarily will, but in your rush to compare two numbers, you missed the fact that there are several more involved.
He asked permission and they allowed him to do this. RTFA.
No, RTFA. He asked if it was okay to take photos in the store. He never asked if it was okay to install software on the machines and have those Apple-owned machines take the photos. And certainly, he never asked about taking photos from every computer of every visitor to the store who used a computer and publishing them online. After all, if he really asked permission, would he have had to hide it:
I looked around to double check that there were no terms of service I was missing. If there were, and if it said anything about “installing applications”, I would have had to go back home and write an HTML5 or Flash version.
Or:
The app was maybe two megabytes, and took 15 seconds to download. Sometimes I would open another tab and load Flickr or Open Processing so I had an excuse if someone asked why I was comparing every single computer.
Or:
One of them got a little excited and tweeted about the pictures, not realizing the project wasn’t done yet. Fortunately, only a few people noticed, and it didn’t get much attention.
Or:
After the one-minute-exhibition ended, we made a staggered exit from the store and met at the Starbucks up the street.
Or:
If I were wiser, I may have split “People Staring at Computers” in two... The other piece would have been the in-store intervention. I’d use the same photo app, but they’d be uploaded directly to an anonymous photo host instead of my server. I’d replace the screensaver with an app that downloaded and exhibited these photos. Done properly, there would be no one to point fingers at, and people might be able to focus on questions about privacy and surveillance instead of arguing about art and intentionality. I wouldn’t be able to claim authorship of course, but I would be in a position to actually join the discussion and participate in the criticism.
None of that is the actions or sentiments of someone who "asked permission" for what he was doing. Rather, as he notes, he asked if he could "take photos in the store" and later if he could "shoot video". It's permission creep: a positive response to 'can I take a picture here' doesn't imply 'I can install hidden networked cameras and publish photos of thousands of pictures taken over the course of weeks'.
He's creepy as hell, but the fact that Apple chose to trump him with their own creepy behavior isn't comforting. There were many other means at their disposal to deal with the issue, that they chose to call up a Secret Police organization is sorta telling.
The Secret Service's primary (and initial) purpose is investigating fraud and counterfeiting. Identity theft falls under that.
... second best known for protecting against counterfeiting, fraud and identity theft. Since that's what they were actually started to do, and is still their primary mission.
So, even if there is prior art, now that is a worthless argument against a patent?
If so, then the American tech industry is completely screwed. I LIKE IT!
A patent is invalid if there is one or more pieces of prior art, existent at the time of filing, that, alone or in combination, disclose, teach, or suggest, explicitly or inherently, each and every element of the claims. There's been a lot of FUD spread about the patent reform act and moving from first-to-invent to first-to-file. It changes nothing about prior art, novelty, and obviousness.
In this case, RIM claimed there was prior art that anticipated the patent, but the jury disagreed. That doesn't change the law and mean that prior art isn't valid - the question is one of fact: RIM's prior art just wasn't good enough, apparently.
except for a little file sharing with Kazaa in fifth grade... That is NOT the same as file sharing.
... mmhmm...
Also:
What this "Emily" moron did was... trade mix-tapes and songs with -- as she stated -- "family and friends".
She's 21. I guarantee you she was not trading tapes, and quite possibly has never even held a cassette in her hands. As she said, she was trading hard drives loaded with tens of thousands of songs, or spending hours at her college radio station ripping CDs onto her laptop.
Artist, does it cost you $60,000 to make your work (include your own salary)?... Pro-tip: Sell it for $60,000, not for $0.99. If your work is really worth that, people will pay the cost. Set up a kickstarter and watch it happen. If your work isn't worth what it costs, then there's no market for you. Tough. But please stop all this lunacy, we need it to stop freaking yesterday.
-Sincerely, an audio engineer who understands what is wrong with the businesss
Actually, it's not a bad idea... Drop a 10 second clip of a chorus or verse as a teaser, and hold the rest of the song for ransom on Kickstarter: once you've received $60k in funding - which may be 60,000 people offering 99 cents - then you release the entire song free. Sharing becomes the distribution system, and since you've been paid in advance, you don't really care about further spread of the song.
Known artists can jack up the price - want the next Katy Perry song*? Funding is $600k. Or even $1M. Unknown artists can set lower prices. But you're right - if there's value to the song and their reputation, then they'll get paid what it's worth. Otherwise, no.
*Of course, not you, Dear Slashdot reader. You only listen to Arcade Fire, or Vampire Weekend, or some indie band no one but you has ever heard of.:)
See, there are thousands of mousetrap patents in the US patent files, but in software terms, 'catching a mouse using a device utilising mechanical or electronic or other means' is what is patented, which stops anything remotely related to the vague idea that is part of the patent.
Not really. I mean, sure, people rant about Amazon's "one-click" patent, but it really isn't a patent on clicking once. That's just the title, and it barely reflects the claims.
Patenting a way of sliding an icon to unlock a screen would also be valid - but you could create your own slide-to-unlock as long as it used a different mechanism, just like people can continue to patent their own ways of catching mice.
You still can. Like "one-click", "slide-to-unlock" isn't actually a patent on sliding something to unlock something else. That's just the colloquial description. The claims recite:
1. A method of unlocking a hand-held electronic device, the device including a touch-sensitive display, the method comprising:
detecting a contact with the touch-sensitive display at a first predefined location corresponding to an unlock image;
continuously moving the unlock image on the touch-sensitive display in accordance with movement of the contact while continuous contact with the touch screen is maintained, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device; and
unlocking the hand-held electronic device if the moving the unlock image on the touch-sensitive display results in movement of the unlock image from the first predefined location to a predefined unlock region on the touch-sensitive display.
Want an easy way around it? If you don't move the unlock image during the gesture, you don't infringe.
Want an easy improvement? If you don't place the unlock image at a predefined location, but instead place it at a randomly selected location on the display (helping to prevent pocket-unlocking), the patent doesn't anticipate that implementation, and you also don't infringe. Or you could start at a predefined location, but have a target that is randomly placed. Same deal.
The problem with a lot of the anti-patent complaints is that they don't bother reading the patents they're complaining about, or reading any of the laws having to do with them. There are problems in patent law, and there are avenues for reform, but this isn't one of them.
What Posner is suggesting is called a working requirement, and many countries have it already (e.g. Turkey and India). Working requirements are necessarily so full of exceptions and holes that they are almost completely ineffective. There are many legitimate reasons why a patentee might not be able to produce the patented invention (beyond, perhaps, a prototype or demonstration). The patentee may need additional funding. It might need regulatory approval. It might be waiting for upstream suppliers. It might require an as-yet uninvented technology to make the invention practical or profitable. The market might not exist yet or might not be large enough to make the invention profitable. It might be building large, expensive factories. It might be negotiating with licensees or still looking for licensees. The list goes on.
Absolutely right. One important group to be aware of when we're discussing ways to defeat trolls are research universities, such as MIT, Cornell, USC, Harvard, Johns Hopkins, etc., which all do a lot of research and licensing of patents, but don't manufacture anything on their own, and yet are not what we think of when we think "trolls". Harming those universities - which rely on licensing revenue to fund their research - is not a good outcome.
The District Court is unhappy, because the lawyer issued the subpoenas without the permission of the District Court. In fact, it was after the District Court told the lawyer to stop doing that. The Appellate Court agreed.
So the Appellate Court is upholding the rights of the lower court.
Don't expect the courts to start ruling against media companies that follow the laws that they paid the legislatures to write. Don't even expect significant sanctions when they break the law, as long as they stop when they're told. It looks kind of like this is a media ruling, but its more a "respect the judges" ruling.
Exactly right. This is a "wtf were you doing sending subpoenas to the ISPs, and then wtf were you doing not responding to the show cause order?!" At most, it's dicta indicating that the judges (properly) aren't going to accept these "sue 50 Does, get discovery, demand settlements, and then drop the case if anyone argues" suits. This will have no effect on the more legally legitimate, if morally questionable, RIAA/MPAA suits, which do proceed.
Frankly, I expected more from you. I've previously been called a Pollyanna, though.
2. I've come to the conclusion that you are a troll and/or shill, and will ignore you accordingly.
"Who do you work for?! You must be a copyright shill!"
"I'm a patent attorney, and you have an email with my full name and plenty of identifying details you could use to confirm that."
"I'm going to ignore all that and say that you're a copyright shill and a trolllllll!"
Ray, with all due respect, as one professional to another, grow the fark up.
By suggesting that this didn't really happen, you are misleading anyone who cares to accept you as credible, and your motivations for doing so are curious indeed.
From my original post:
The judge properly said, "hey, dolts, number 2 isn't negligence, it's contributory infringement, so the state law negligence claims are wrong and preempted anyway."
Ray, begging your pardon, but I've never "suggest[ed] that this didn't really happen", and there is nothing misleading in my post. I mean, honestly - how could I possibly "suggest that this didn't really happen" while simultaneously discussing why it happened? Causality much?
Frankly, your attempt to put words in my mouth, impugn my credibility, and suggest some ulterior motive (to the point of demanding to know who my employer is) is insulting, rude, and unprofessional. But I'm sure you didn't actually intend any of that and will apologize momentarily.
You can play whatever games you like, but I deeply resent your suggestion that the summary which I wrote was somehow inaccurate.
It wasn't a suggestion - it was an explicit statement, and I'll repeat it. The summary which you wrote was inaccurate. Specifically, the statement that the plaintiff was "saying that the defendant was negligent in failing to supervise" is entirely inaccurate. Read footnote 17 of the opinion, and then come back and tell me how the plaintiff was saying "the defendant was negligent in failing to supervise"... and while you're at it, tell me why the judge was wrong when he said that the plaintiff was arguing for contributory infringement and not negligence, going so far as to say: "This case does not involve a concededly ignorant but allegedly careless defendant."
If you don't intend any "offense", don't say something I wrote was wrong when it's right, and the only thing "wrong" is your outlandish argument that the papers do not mean what they say.
And if you don't intend any offense, then don't put words in my mouth, hint at "games", and don't get huffy simply because someone has explicitly pointed out that you're wrong.
If you don't mind my asking, what do you do for a living, and for whom?
It seems to me that every time I post something on slashdot, you're there trying to belittle it
You know who I am. Who are you? Since you have an agenda, you should disclose what it is.
I'm a patent attorney. My interest in copyright is purely academic - in fact, I wrote a well received, award winning scholarly article on copyright infringement and damages which you have a copy of, if you dig through your email.:)
No offense is intended*, and I don't mean to belittle your posts**. As you'll note, I'm disagreeing with the substance of what you've said - here, specifically, the characterization of the plaintiff's argument, as well as the judge's response and the policy implications of it. No personal disrespect is intended, and I actually have great respect for you in general. But that doesn't mean I have to always agree with you. Specifically, I think that both you and the RIAA/MPAA are wrong with regards to many of the issues around damages.
*Well, very slight offense, but only for that one time when I called you "Ray," in a spirit of collegial friendliness, and you responded with an icy "It's Mister Beckerman, to you."
**Not that you can necessarily say the same. See, e.g., your earlier response to this post "teaching" the elements of negligence... regardless of that fact that (i) that's not actually an issue in this case, (ii) my post pointed out why it wasn't an issue, and (iii) in light of the former, it's somewhat belittling to assume I have no idea what I'm talking about.
Ah, not BS, the judge dismissed the claim, which implies that in fact you can not sue someone for negligence simply for them using your hardware. Next time, might want to read the summary slightly more carefully.
Unfortunately, the summary's incorrect. Next time, the summary author might want to read the decision slightly more carefully. Specifically, the judge dismissed the negligence claims because the complaint was actually alleging "knowing and active" contributory infringement, not negligence at all (see footnote 17), and that the legal right involved - protection from contributory infringement - was in the copyright act and thus preempts state claims.
And, most importantly to what you and the GP were discussing, the defendant is still in the suit. Although the negligence claim against the defendant was (properly) dropped, there is also a contributory infringement claim against him.
Why this is important, however, is that the elements the plaintiff needs to show for contributory infringement are different than the ones they needed to show for negligence. Dropping the negligence claim will require them to prove that "knowing and active" bit that they wouldn't have had to do for negligence.
Slashdot Mirror
2. This isn't quite right. The primary purpose of patents is to encourage the publication of inventions and sharing of ideas. Without them, the profit motive would encourage trade secrets and hoarding of information and techniques. Say what you will about patents, obviousness, and longevity of protections, but they have succeeded brilliantly at getting everyone publishing everything in extensive detail.
If that is the goal of patents, it has become an utterly failed goal and the role of the U.S. Patent and Trademark Office certainly has not encouraged any actual documentation of the devices or concepts themselves. Sadly, I've read enough patent applications to realize that there is no possible way to glean much of any information at all from those documents in terms of being able to actually build the devices or concepts being described in them. Those applications are so full of legal descriptions that gleaning any technical data on how to do something simply can't be done.
I'll also note that if patents were so excellent as a means to share and distribute information about technical and engineering concepts, most engineers would have a bookshelf and likely even a full library of patent applications (especially expired patents) for them to review and to get ideas from. Instead, most engineers are explicitly encouraged to never read patent applications except in a narrow scope to help out with the legal defense of a company once they have been sued or are supposed to be giving expert legal testimony on the content of the patent. The only patent related items that you will ever see in an engineering office may be some plaques honoring employees who have been granted patents, but you would typically see lawyers who see any other patent applications or grants that belong to other companies taking those materials and throwing them into the shredder or burning them with likely a long talk to any engineer who is caught with them in a joint conference with a human resources exec, the immediate supervisor, and a lawyer along with some sort of form where that employee would have a long and embarrassing "lecture" (it wouldn't even be a conversation) and they would need to sign some paper as a condition of employment to never look at another patent application without direct approval of their supervisor.
You're reading the grandparent post wrong, as well as misunderstanding the point of the Patent Act. As noted above, patents encourage publication of inventions... As in, patents encourage publication elsewhere, such as functional specs, white papers, theses, etc. The documents that would otherwise be kept as trade secrets. It's not that the patent is meant to be the sole library, but that the patent allows the inventor to publish and show the world how the invention works in other documents and at trade shows, without losing their rights.
As you note:
If you want to share information about technology, try a textbook or some technical manual.
And patents encourage publication of those textbooks and manuals.
If you weren't a patent troll you'd contact companies for licensing ahead of time, and not wait for a product to get huge, then sue.
That is the real difference in methodology. Companies with legit patents will go and try to license their patent to everyone, and only sue when people refuse to license but use the technology anyhow. Patent trolls sit quietly and wait for things to become a big success and then sue for "damages" for their patent nobody has ever heard of.
No, that's a difference in terminology. From wiki:
Patent troll is a term used for a person or company who enforces patents against one or more alleged infringers in a manner considered aggressive or opportunistic with no intention to manufacture or market the patented invention.
Uniloc does market the patented invention. Therefore, they're not a troll. They may be a patent extortionist (or any one of several other terms describing aggressive litigants), and they could even be jerks or assholes. But if you accept that effective communication requires you to use common definitions for terms or else explicitly provide your own, then Uniloc is not a troll.
...applications for use on cellular phones and/or tablet devices that require communication with a server to perform a license check to prevent the unauthorized use of said application...
Sometimes Battle.net 2.0 is all about logging on to a server to play a singleplayer or LAN game.
The patent is narrower than that. You have to look at the claims, not just the abstract or the Slashdot summary.
Software patents are so dumb. Just because some idiot patents something obvious doesn't mean the rest of us should not be able to do the obvious thing. What if someone patented walking in a straight line? The rest of society would be relegated to drinking heavily, or inventing silly walks.
I think we can find prior art showing people walking in a straight line.
So, for instance, if we have touchscreen apps, scroll bars, and elements that only appear on activation, an application that combines the three of them would be rejected for non-obviousness?
Unless any of them teach away from the combination... For example, a scroll bar that says "always display me when the material is longer than the screen" would teach away from being combined with an element that appears only on activation, or would teach that "the material is longer than the screen" is the activation, so it should always display.
Basically, you have to put yourself in the position of someone in 2007... Would you have come up with this then? And when you say "of course I would," can you prove that?
Currently, the test is that if one or more pieces of prior art references or products, alone or in combination, teach or suggest each and every element in the patent claim, either inherently or expressly, the claim is obvious. This eliminates hindsight - all references must be from before the application was filed - and eliminates gut feelings - since references must be shown and mapped to the claims.
That's all fine and dandy, and probably judicially correct. Who cares about judicial correctness? It's a bad test. Why? Because it always passes. Everything was done first, once. That means everything's patentable (if applied by for the person who did it first, or at least, the person who first published it). Which totally discards the "non-obvious" portion of the patentability requirement, which leaves the current useless mess the USPTO is currently in.
Not so... I think you're confusing novelty ("something being done first, once") and obviousness. Obviousness doesn't require that it actually has been done - it merely requires that there's a combination of references that together, if combined, would teach or suggest everything in the claims. If you have a pillow, and someone else has a stool, I can't make a padded stool, even if no one's done it before.
Patents need more than to be novel. They need to be non-obvious to one skilled in the art. Just because you're the first to do something, doesn't mean you get a government-enforced monopoly on it. It's supposed to be something that significantly contributes to the body of human knowledge, something significant enough to be worth placing restrictions on the rest of the populace in order to find out how you did it.
That's absolutely right... but how do you prove that something is "non-obvious to one skilled in the art"? Patents are quasi-judicial decisions, so they're bound by the Constitutional requirement of due process. Just as a judge cannot look a defendant up on murder charges and say, without evidence, "I have a gut feeling that you're guilty," the patent office cannot look at a patent application and say, without evidence, "I have a gut feeling that this is obvious."
Currently, the test is that if one or more pieces of prior art references or products, alone or in combination, teach or suggest each and every element in the patent claim, either inherently or expressly, the claim is obvious. This eliminates hindsight - all references must be from before the application was filed - and eliminates gut feelings - since references must be shown and mapped to the claims.
I haven't looked closely at this application, but if no one was doing anything like it before, and you couldn't combine what people were doing before to get the same thing, then it probably wasn't obvious at the time of filing. It may be obvious as hell, now, in hindsight, but that's as irrelevant as determining someone is guilty based on what Nancy Grace says.
I'm not condoning physical violence, but I think wearable recording devices _should_ be resisted by the general public. I would have sided with the victim except for the fact that he has presented these (crystal clear) images that he saved onto the device. His defense is that the device is for improved vision, yet improved vision does not require images to be retained. Retaining images is the part I am against.
You could have bothered to read the article, you know:
The computerized eyeglass processes imagery using Augmediated Reality, in order to help the wearer see better, and when the computer is damaged, e.g. by falling and hitting the ground (or by a physical assault), buffered pictures for processing remain in its memory, and are not overwritten with new ones by the then non-functioning computer vision system.
As a result of Perpetrator 1's actions, therefore images that would not have otherwise been captured were captured. Therefore by damaging the Eye Glass, Perpetrator 1 photographed himself and others within McDonalds.
You're correct in that a wearable device could be saving pictures without your knowledge, but the discussion is one of policy and based on a hypothetical that has not occurred: he did not intentionally save any images. Your particular outrage at the victim here is misplaced.
Please read the response I was replying to. He setup a video camera and took some video with permission and did not get thrown out. Reading comprehension is getting out of hand...
Agreed, and please read the response that one was replying to: "He checked the terms of use and found no restrictions against installing software, spyware or otherwise."
The great-grandparent disagreed with that, and you pointed out that "He asked permission and they allowed him to do this. RTFA."
In context, you must agree that it's reasonable to assume that "this" referred to "installing software, spyware or otherwise."
I'm not okay with Google Street View coming into my place of business and taking pictures of me and my colleagues without permission, no. But then, it wouldn't really be called "street" view, would it?
Ah, but you already gave them permission to do it (taking about Apple Store in this instance), you just have a problem with HOW the pictures are taken.
I understand your point, but I disagree... Street View is not permission creep because the public isn't asked for permission - rather, it's a question of legality and the balanced rights of the privacy of the person being photographed and the right of the photographer to record public information. Here (and in your hypothetical), the photographer has no such right, as it's not a public space - their sole claim is due to having explicit permission, except that they're going beyond the bounds of what was explicit.
It's permission creep: a positive response to 'can I take a picture here' doesn't imply 'I can install hidden networked cameras and publish photos of thousands of pictures taken over the course of weeks'.
So can I assume you're not OK with Google Street View?
I'm not okay with Google Street View coming into my place of business and taking pictures of me and my colleagues without permission, no. But then, it wouldn't really be called "street" view, would it?
Who owns Scansoft, who apart from GS are the other big winners from this transaction? They got the world's best speech rec software for a fraction of its true value - I wonder who they were advised by?
A mysterious company called Soldman Gachs, who have since gone out of business after a fire that destroyed all of their files.
More importantly, I don't get why anyone would advertise that 350M is being spent to create 20 "permanent" positions. That's 17.5M per fulltime job!
... for how many years, and does that 350M have any return? If those permanent positions are there for the next 50 years, and the plant starts making 50M per year in energy sales, then it's a pretty sweet deal.
Not that it necessarily will, but in your rush to compare two numbers, you missed the fact that there are several more involved.
He asked permission and they allowed him to do this. RTFA.
No, RTFA. He asked if it was okay to take photos in the store. He never asked if it was okay to install software on the machines and have those Apple-owned machines take the photos. And certainly, he never asked about taking photos from every computer of every visitor to the store who used a computer and publishing them online. After all, if he really asked permission, would he have had to hide it:
I looked around to double check that there were no terms of service I was missing. If there were, and if it said anything about “installing applications”, I would have had to go back home and write an HTML5 or Flash version.
Or:
The app was maybe two megabytes, and took 15 seconds to download. Sometimes I would open another tab and load Flickr or Open Processing so I had an excuse if someone asked why I was comparing every single computer.
Or:
One of them got a little excited and tweeted about the pictures, not realizing the project wasn’t done yet. Fortunately, only a few people noticed, and it didn’t get much attention.
Or:
After the one-minute-exhibition ended, we made a staggered exit from the store and met at the Starbucks up the street.
Or:
If I were wiser, I may have split “People Staring at Computers” in two... The other piece would have been the in-store intervention. I’d use the same photo app, but they’d be uploaded directly to an anonymous photo host instead of my server. I’d replace the screensaver with an app that downloaded and exhibited these photos. Done properly, there would be no one to point fingers at, and people might be able to focus on questions about privacy and surveillance instead of arguing about art and intentionality. I wouldn’t be able to claim authorship of course, but I would be in a position to actually join the discussion and participate in the criticism.
None of that is the actions or sentiments of someone who "asked permission" for what he was doing. Rather, as he notes, he asked if he could "take photos in the store" and later if he could "shoot video". It's permission creep: a positive response to 'can I take a picture here' doesn't imply 'I can install hidden networked cameras and publish photos of thousands of pictures taken over the course of weeks'.
He's creepy as hell, but the fact that Apple chose to trump him with their own creepy behavior isn't comforting. There were many other means at their disposal to deal with the issue, that they chose to call up a Secret Police organization is sorta telling.
The Secret Service's primary (and initial) purpose is investigating fraud and counterfeiting. Identity theft falls under that.
... second best known for protecting against counterfeiting, fraud and identity theft. Since that's what they were actually started to do, and is still their primary mission.
So, even if there is prior art, now that is a worthless argument against a patent?
If so, then the American tech industry is completely screwed. I LIKE IT!
A patent is invalid if there is one or more pieces of prior art, existent at the time of filing, that, alone or in combination, disclose, teach, or suggest, explicitly or inherently, each and every element of the claims. There's been a lot of FUD spread about the patent reform act and moving from first-to-invent to first-to-file. It changes nothing about prior art, novelty, and obviousness.
In this case, RIM claimed there was prior art that anticipated the patent, but the jury disagreed. That doesn't change the law and mean that prior art isn't valid - the question is one of fact: RIM's prior art just wasn't good enough, apparently.
except for a little file sharing with Kazaa in fifth grade... That is NOT the same as file sharing.
... mmhmm...
Also:
What this "Emily" moron did was... trade mix-tapes and songs with -- as she stated -- "family and friends".
She's 21. I guarantee you she was not trading tapes, and quite possibly has never even held a cassette in her hands. As she said, she was trading hard drives loaded with tens of thousands of songs, or spending hours at her college radio station ripping CDs onto her laptop.
Artist, does it cost you $60,000 to make your work (include your own salary)?... Pro-tip: Sell it for $60,000, not for $0.99. If your work is really worth that, people will pay the cost. Set up a kickstarter and watch it happen. If your work isn't worth what it costs, then there's no market for you. Tough. But please stop all this lunacy, we need it to stop freaking yesterday.
-Sincerely, an audio engineer who understands what is wrong with the businesss
Actually, it's not a bad idea... Drop a 10 second clip of a chorus or verse as a teaser, and hold the rest of the song for ransom on Kickstarter: once you've received $60k in funding - which may be 60,000 people offering 99 cents - then you release the entire song free. Sharing becomes the distribution system, and since you've been paid in advance, you don't really care about further spread of the song.
Known artists can jack up the price - want the next Katy Perry song*? Funding is $600k. Or even $1M. Unknown artists can set lower prices. But you're right - if there's value to the song and their reputation, then they'll get paid what it's worth. Otherwise, no.
*Of course, not you, Dear Slashdot reader. You only listen to Arcade Fire, or Vampire Weekend, or some indie band no one but you has ever heard of. :)
See, there are thousands of mousetrap patents in the US patent files, but in software terms, 'catching a mouse using a device utilising mechanical or electronic or other means' is what is patented, which stops anything remotely related to the vague idea that is part of the patent.
Not really. I mean, sure, people rant about Amazon's "one-click" patent, but it really isn't a patent on clicking once. That's just the title, and it barely reflects the claims.
Patenting a way of sliding an icon to unlock a screen would also be valid - but you could create your own slide-to-unlock as long as it used a different mechanism, just like people can continue to patent their own ways of catching mice.
You still can. Like "one-click", "slide-to-unlock" isn't actually a patent on sliding something to unlock something else. That's just the colloquial description. The claims recite:
1. A method of unlocking a hand-held electronic device, the device including a touch-sensitive display, the method comprising:
detecting a contact with the touch-sensitive display at a first predefined location corresponding to an unlock image;
continuously moving the unlock image on the touch-sensitive display in accordance with movement of the contact while continuous contact with the touch screen is maintained, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device; and
unlocking the hand-held electronic device if the moving the unlock image on the touch-sensitive display results in movement of the unlock image from the first predefined location to a predefined unlock region on the touch-sensitive display.
Want an easy way around it? If you don't move the unlock image during the gesture, you don't infringe.
Want an easy improvement? If you don't place the unlock image at a predefined location, but instead place it at a randomly selected location on the display (helping to prevent pocket-unlocking), the patent doesn't anticipate that implementation, and you also don't infringe. Or you could start at a predefined location, but have a target that is randomly placed. Same deal.
The problem with a lot of the anti-patent complaints is that they don't bother reading the patents they're complaining about, or reading any of the laws having to do with them. There are problems in patent law, and there are avenues for reform, but this isn't one of them.
What Posner is suggesting is called a working requirement, and many countries have it already (e.g. Turkey and India). Working requirements are necessarily so full of exceptions and holes that they are almost completely ineffective. There are many legitimate reasons why a patentee might not be able to produce the patented invention (beyond, perhaps, a prototype or demonstration). The patentee may need additional funding. It might need regulatory approval. It might be waiting for upstream suppliers. It might require an as-yet uninvented technology to make the invention practical or profitable. The market might not exist yet or might not be large enough to make the invention profitable. It might be building large, expensive factories. It might be negotiating with licensees or still looking for licensees. The list goes on.
Absolutely right. One important group to be aware of when we're discussing ways to defeat trolls are research universities, such as MIT, Cornell, USC, Harvard, Johns Hopkins, etc., which all do a lot of research and licensing of patents, but don't manufacture anything on their own, and yet are not what we think of when we think "trolls". Harming those universities - which rely on licensing revenue to fund their research - is not a good outcome.
The District Court is unhappy, because the lawyer issued the subpoenas without the permission of the District Court. In fact, it was after the District Court told the lawyer to stop doing that. The Appellate Court agreed.
So the Appellate Court is upholding the rights of the lower court.
Don't expect the courts to start ruling against media companies that follow the laws that they paid the legislatures to write. Don't even expect significant sanctions when they break the law, as long as they stop when they're told. It looks kind of like this is a media ruling, but its more a "respect the judges" ruling.
Exactly right. This is a "wtf were you doing sending subpoenas to the ISPs, and then wtf were you doing not responding to the show cause order?!" At most, it's dicta indicating that the judges (properly) aren't going to accept these "sue 50 Does, get discovery, demand settlements, and then drop the case if anyone argues" suits. This will have no effect on the more legally legitimate, if morally questionable, RIAA/MPAA suits, which do proceed.
1. Don't hold your breath.
Frankly, I expected more from you. I've previously been called a Pollyanna, though.
2. I've come to the conclusion that you are a troll and/or shill, and will ignore you accordingly.
"Who do you work for?! You must be a copyright shill!"
"I'm a patent attorney, and you have an email with my full name and plenty of identifying details you could use to confirm that."
"I'm going to ignore all that and say that you're a copyright shill and a trolllllll!"
Ray, with all due respect, as one professional to another, grow the fark up.
By suggesting that this didn't really happen, you are misleading anyone who cares to accept you as credible, and your motivations for doing so are curious indeed.
From my original post:
The judge properly said, "hey, dolts, number 2 isn't negligence, it's contributory infringement, so the state law negligence claims are wrong and preempted anyway."
Ray, begging your pardon, but I've never "suggest[ed] that this didn't really happen", and there is nothing misleading in my post. I mean, honestly - how could I possibly "suggest that this didn't really happen" while simultaneously discussing why it happened? Causality much?
Frankly, your attempt to put words in my mouth, impugn my credibility, and suggest some ulterior motive (to the point of demanding to know who my employer is) is insulting, rude, and unprofessional. But I'm sure you didn't actually intend any of that and will apologize momentarily.
You can play whatever games you like, but I deeply resent your suggestion that the summary which I wrote was somehow inaccurate.
It wasn't a suggestion - it was an explicit statement, and I'll repeat it. The summary which you wrote was inaccurate. Specifically, the statement that the plaintiff was "saying that the defendant was negligent in failing to supervise" is entirely inaccurate. Read footnote 17 of the opinion, and then come back and tell me how the plaintiff was saying "the defendant was negligent in failing to supervise"... and while you're at it, tell me why the judge was wrong when he said that the plaintiff was arguing for contributory infringement and not negligence, going so far as to say: "This case does not involve a concededly ignorant but allegedly careless defendant."
If you don't intend any "offense", don't say something I wrote was wrong when it's right, and the only thing "wrong" is your outlandish argument that the papers do not mean what they say.
And if you don't intend any offense, then don't put words in my mouth, hint at "games", and don't get huffy simply because someone has explicitly pointed out that you're wrong.
If you don't mind my asking, what do you do for a living, and for whom?
It seems to me that every time I post something on slashdot, you're there trying to belittle it
You know who I am. Who are you? Since you have an agenda, you should disclose what it is.
I'm a patent attorney. My interest in copyright is purely academic - in fact, I wrote a well received, award winning scholarly article on copyright infringement and damages which you have a copy of, if you dig through your email. :)
No offense is intended*, and I don't mean to belittle your posts**. As you'll note, I'm disagreeing with the substance of what you've said - here, specifically, the characterization of the plaintiff's argument, as well as the judge's response and the policy implications of it. No personal disrespect is intended, and I actually have great respect for you in general. But that doesn't mean I have to always agree with you. Specifically, I think that both you and the RIAA/MPAA are wrong with regards to many of the issues around damages.
*Well, very slight offense, but only for that one time when I called you "Ray," in a spirit of collegial friendliness, and you responded with an icy "It's Mister Beckerman, to you."
**Not that you can necessarily say the same. See, e.g., your earlier response to this post "teaching" the elements of negligence... regardless of that fact that (i) that's not actually an issue in this case, (ii) my post pointed out why it wasn't an issue, and (iii) in light of the former, it's somewhat belittling to assume I have no idea what I'm talking about.
Ah, not BS, the judge dismissed the claim, which implies that in fact you can not sue someone for negligence simply for them using your hardware. Next time, might want to read the summary slightly more carefully.
Unfortunately, the summary's incorrect. Next time, the summary author might want to read the decision slightly more carefully. Specifically, the judge dismissed the negligence claims because the complaint was actually alleging "knowing and active" contributory infringement, not negligence at all (see footnote 17), and that the legal right involved - protection from contributory infringement - was in the copyright act and thus preempts state claims.
And, most importantly to what you and the GP were discussing, the defendant is still in the suit. Although the negligence claim against the defendant was (properly) dropped, there is also a contributory infringement claim against him.
Why this is important, however, is that the elements the plaintiff needs to show for contributory infringement are different than the ones they needed to show for negligence. Dropping the negligence claim will require them to prove that "knowing and active" bit that they wouldn't have had to do for negligence.