The standards for contributory infringement were established in MGM v Grokster. To be secondarily liable the defendant must have encouraged or induced the infringement. Mere 'negligence' would not suffice.
Absolutely right, but again, the plaintiff wasn't claiming "mere 'negligence'," but "encourage[ment] or induce[ment of] the infringement." As I posted, from footnote 17 in the decision (emphasis added):
It bears emphasis that, despite the “negligence” label, this complaint alleges that Tabora knowingly facilitated and actively participated in Whetstone’s alleged infringement. This case does not involve a concededly ignorant but allegedly careless defendant.
And, as the judge noted:
The right that Liberty seeks to vindicate... is protected by the Copyright Act under the doctrine of contributory infringement.
So, as noted, the summary isn't correct, because the plaintiff wasn't arguing what you claimed they were arguing.
In one of the myriad BitTorrent downloading cases against individuals, one plaintiff's law firm thought they'd be clever and insert a 'negligence' claim, saying that the defendant was negligent in failing to supervise his roommate's use of his WiFi access.
That's not exactly right. The firm put in the negligence claim because (for some unknown reason), they thought that the copyright act only provided for liability of a direct infringer (the roommate), and not anyone else who contributed to the infringement (the defendant WiFi owner):
Liberty nevertheless argues that its negligence claim asserted here is not preempted because, as the Court understands the argument, the negligence claim rests on infringement by others whereas the Copyright Act provides a remedy only against a direct infringer.
That's incorrect, as the judge notes:
The right that Liberty seeks to vindicate by its state law negligence claim – the imposition of liability on one who
knowingly contributes to a direct infringement by another – already is protected by the Copyright Act under the doctrine of contributory infringement.
Furthermore, they're not actually alleging negligence at all - from footnote 17:
It bears emphasis that, despite the “negligence” label, this complaint alleges that Tabora knowingly facilitated and actively participated in Whetstone’s alleged infringement. This case does not involve a concededly ignorant but allegedly careless defendant.
Basically, the firm wanted to go after both roommates and, due to an inept misunderstanding of copyright, alleged (i) direct infringement by the roommate, and (ii) "knowing and active" negligence by the WiFi owner. 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."
The defendant isn't off scot free... The plaintiffs have a contributory infringement complaint that still names him.
I generally support gay rights, but I've always been a little meh on the idea of gay marriage. What I'd really like to hear is for a gay marriage advocate to explain to me why polygamy should be illegal yet gay marriage should be legal.
This is a classic troll argument: he assumes that gay marriage advocates believe polygamy should be illegal, and then tries to paint them as hypocrites, in order to deflect attention from his own anti-gay marriage beliefs. All of that ignores the fact that most gay marriage advocates are also fine with legal polygamy (provided laws get updates, as you and other posters note).
And if Apple's patent claimed "sliding an implement from one position to another to unlock a portal" then you'd be right, but it doesn't. In other words, if a physical bolt would infringe Apple's patent, and the physical bolt came first (which it did), then the bolt would anticipate the patent and render it invalid.
But it doesn't... here's the first claim:
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.
A bolt lock wouldn't infringe that claim, and therefore, a bolt lock also doesn't anticipate that claim.
But we ALSO have Jefferson on record that he did not think copyrights/patents should exist. "There is not in nature a natural right to protection of the thinking power we call an idea."
Actually, believe it or not, your post is the sole hit on Google for that phrase. Apparently the robots hit Slashdot a half hour ago.
On the contrary, what Jefferson said was:
It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs... If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.
The quote, from a letter to Issac McPherson, is in context of a discussion as to whether patents are a natural right, like property ownership, that may be passed on to progeny forever. And Jefferson concludes that:
Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.
Basically, unlike a right to privacy, or a right to speech, or a right to free exercise of religion, patents are not a natural right. Congress could decide tomorrow to abolish the Patent Act, as such is in their power, and arguments about due process would be moot.
He says that nature "designed" ideas to be freely shareable around the world, for the betterment of mankind. So it's pretty clear he never granted a patent to himself, because he opposed them on principal.
On the contrary, what the above quote and the rest of the letter says is that patents are a legal invention of man, that society can choose to give power to or not, and they are not a natural, inalienable right. He concludes, however, that patents are for the benefit of society and remarks upon the maturation of the granting rules involved. There is certainly no indication that Jefferson "opposed them on principal", but rather, at most, felt they should be limited monopolies, as the Constitution says.
As the president, or member of his cabinet, you are supposed to Execute the laws even if you don't like them. The exception being unconstitutional laws (as required by your oath). Since the patent law was constitutional, Jefferson did his job and obeyed the constitution. (Something recent presidents ought to learn to do.) That doesn't mean he approved of patents as shown by the fact he could have granted one to himself but never did.
He could also have granted himself a golden palace and used the army to defend it. The fact that he didn't doesn't mean that he disapproved of gold or palaces, just as the fact that he never granted a patent to himself doesn't mean that he disapproved of patents... Rather, they show that he wasn't corrupt.
... he sure did a great job as the author of the Patent Act and first Patent Examiner. Isn't it somewhat more reasonable to say that he never patented his own inventions because, y'know, he'd be the one examining them and granting the patent and that would be a huge ethical breach and lead to charges of corruption?
1 - Judges are not educated enough to make a ruling need to be retired. Sorry, but why are you presiding over a technology case when you know nothing about technology?
Just because you don't like the ruling doesn't mean the judge doesn't understand technology. Prior to joining the bench, Judge Koh spent a decade doing patent litigation.
Tellingly, when Judge Koh has decided the other way in the past - invalidating patents or denying injunctions - Slashdot posters have repeatedly said, "finally, a judge that understands technology!"
90 million is bullshit. The bonds for this stuff (software "patent infringement" via the ITC loophole)...
From the summary: "U.S. District Judge Lucy Koh ordered the preliminary injunction on Friday, granting a motion Apple made in February that alleged Samsung infringed on several of its patents."
This has nothing to do with the ITC. This was in federal court in the Northern District of California.
I'm in agreement with you. But I'm posting as AC, for a variety of reasons. Namely, I am a patent attorney. I specialize in software patents and handle both prosecution and litigation. I also used to be a software developer, so I'm sensitive to the problems that software patents can cause.
So, with that being said I might be a little biased, but the reality is that I think most people would have way less problems with software patents if there were no more NPEs. The vast majority of patent litigation in the electronics/software industry is done by NPEs. While it does happen, you don't generally see the big firms suing the little guys. They typically sue each other, see,e.g.,Google, MSFT, Apple, and Samsung. If they want to see each other, who cares.
I think for there to be a workable NPE rule, you would have to limit the assignment of patents. It would be too unworkable to determine whether the company "practices" the patents. It would leave too much to interpretation. Moreover, it would be used to limit the scope of the patent to the items being practiced, which is not the idea of a patent. My rule would work like this:
1. Can only reassign in cases where your company or line of business is being sold
2. For a company to assert a patent they must show revenues from sales (other than licensing revenues)
3. You are on the hook for Attorney fees if Def wins on non-infringement (invalidity is more tricky, since its somewhat of a crapshoot anyway)
3. There would be an exception would for the original inventor/assignee, who need not show anything (they could essenttially by an NPE, if they wanted). They would still be on the hook for Attorney fees.
These are simple black letter rules, that would probably stop the vast majority of NPE suits.
Yes, and it would also kill the research departments at MIT, Cornell, USC, Harvard, Georgia Tech, etc., etc. I have to question the credibility of any patent attorney who doesn't realize that universities file for and assign or license thousands of patents each year.
And while $89 million may sound like a lot, Google just spent a significant fraction of that amount defending itself against Oracle. If you own a $90 million company, and a major patent troll comes after you (whether its actions are legally justified or just plain economic terrorism), then you're going to pretty much go broke defending yourself, even if you win.
Unlikely. Even super expensive patent litigation isn't going to cost more than $5 million. And consider, for your $90M company to go broke defending itself, you'd be spending $90M on litigation, no? At which point, what exactly is the patent troll supposed to collect if they win? Your office furniture? No, it's in their interests for you to (i) settle or (ii) lose, but lose early and inexpensively. Having you go broke is the worst possible outcome for the troll, since they're parasites.
So it is agreed that the design of the iPad from a frontal perspective is basically identical to Samsung's digital photo frame.
So it is likewise agreed that Samsung's digital photo frame does not invalidate Apple's design patent (I can play your silly game too, you know).
And since the side by side comparison posted above only shows frontal views, then it is also agreed that the frontal perspective is the most important one.
Nope, I don't agree to that. This lawsuit looked at all perspectives, not just the "frontal" one.
If a differing rear design is supposed to be a valid differentiator, then see: iPad vs Galaxy Tab from another angle The iPad and Galaxy Tab appear very different when viewed from the rear; obviously not the same device.
Yes, they do. The iPad also appears very different from the XBox 360, which, like the Galaxy Tab, was not an issue in this lawsuit. There are a whole host of things that the iPad does not resemble, such as a car, a toaster, and a tuba.
An honest, good faith poster would acknowledge that point and concede that they had inadvertently compared the iPad to a product that wasn't in the lawsuit and is not subject to an injunction, much like toasters and tubas. Believing you to be such an honest, good faith poster, I'll wait for your reply.
Right. They wait until you're making money, and then they come take it. Half a million? No. The damage can be your entire company. What would RIM look like right now if they hadn't suffered a half a billion dollar patent tax on push email?
Probably no different. The RIM v. NTP settlement was in March 2006, at which point their stock price was at $27. 16 months later, they were at $85 and did a 3:1 split... at which point it then went up to a peak of $144... So one share of $27 stock when that half billion dollar "tax" (really? taxes go to the government, this was to the patent owner) was then worth $432, or a 1600% increase.
No, what killed RIM (aside from the 2008 recession, but that hurt everyone) was the fact that they rested on their Blackberry laurels and never innovated further, believing themselves to have a lock on the enterprise market, and iOS and Android shot past them.
Organisations of all sizes were affected by 2011 patent action, with the study finding that half of all patent litigation cases hit companies with less than $US100 million in annual revenue.
So, yes, if you're a startup with a hundred million in annual revenue, you may be a target for patent trolls.
While your main point is no doubt correct, it should be pointed out that "less than $100 Million" is NOT "$100 million".
Conceded... From a different post, the "small company" category had a median size of $89 million.
Unfortunately, there's no exact data on what the smallest of the smalls were, but if their "less than $100 million" had a median of $89 million, we're probably not talking a bunch of sub-$1 million companies.
Seems the Apple reality distortion field didn't die with Jobs. What really happened is that the lawyers the judge was questioning said he couldn't tell them apart, but when the judge asked if the others could, another quickly supplied the correct answer. In other words, they could tell the difference.
Did the lawyer who guessed correctly guess? It's a 50-50 shot that could save their case, so it would have been reasonable to do so. But maybe he didn't... in which case, why was it just a simple "that one" rather than a description of the distinct features that led to the conclusion?
See, what really matters is that the judge couldn't tell them apart and thought that a reasonable person couldn't tell them apart either. That Samsung's lawyers, who had meticulously poured over details of both the iPad and the Galaxy Tab, couldn't immediately say "yes, your honor, the Tab has features x, y, z that are distinctive from the iPad" was what doomed them.
But of course what really happened is rather inconvenient for Apple fans' theory that the Galaxy Tab's design must be a ripoff of the iPad, instead of taking its design cues from another Samsung product.
Also, if you see the registered design it's about as vague as you can get. Nowhere does it specify the roundness of the corners, the bezel, the aspect ratio, etc. It's just a very rough pencil sketch.
With all due respect, that's what a design patent is - a pencil sketch. It's not allowed to have additional description. Rather, the figures are the description, and so yes, it does specify the roundness of the corners, the bezel, the aspect ratio, etc. You just have to use a ruler and protractor.
I have considered more than once going into business with an invention, but the thought that some patent holder could come along and sue my pants off is the main factor that has deterred me.
With all due respect, you're an idiot, as the GP stated. Read the study - patent trolls are going after "small companies", which they define as companies with a median of $89 million in annual revenue. If you're turning down the potential for tens of millions in annual revenue, out of fear of a half million dollar lawsuit, then you're an idiot.
But honestly, you're not an idiot. You just don't realize that trolls aren't going to spend half a million to sue someone with a hundred thousand in revenue, understandably with all the scare stories here on Slashdot. Go into business. If you manage to strike it big and earn millions upon millions of dollars, then you can spend a few sleepless nights worrying about trolls from the comfort of the giant pile of money you're using as a mattress.
...because the potential entrepreneur expects that if they become successful, a patent troll will take all their money?
Some, but they probably lack the wisdom to be successful at all, if that's what they're afraid of. Trolls are parasites, no? A parasite that kills its host is not a very good one. Trolls want companies to manufacture products and grow big so that they can take a share of royalties. It simply doesn't make sense to spend half a million suing a start-up into oblivion, if that start-up has only made a few hundred thousand.
In fact, look at the line in the Summary here:
Moreover, although large firms accrued over half of direct costs, most of the defendants were small or medium-sized firms, indicating that [non-practicing entities] are not just a problem for large firms.
Sounds scary, right? Small firms... That's like two really successful guys in a garage who made half a million in sales, right? Wrong. From the article:
Organisations of all sizes were affected by 2011 patent action, with the study finding that half of all patent litigation cases hit companies with less than $US100 million in annual revenue.
So, yes, if you're a startup with a hundred million in annual revenue, you may be a target for patent trolls. And if you're an entrepreneur who decides not to launch a hundred-million dollar business because they may have to pay license fees, then you're either an idiot or you're fooling yourself about your potential valuation.
The study suggested that during 2011, 2150 companies mounted a total 5842 defences in US cases against intellectual property companies that owned and licensed patents without producing any related goods of their own.
As a result, companies lost an estimated $US29 billion in direct costs — legal and licensing fees
Well, yes, paying for a license or facing litigation is always going to be more expensive than simply copying someone else's work without paying for it. Similarly, copyright piracy costs trillions, according to the RIAA/MPAA, who think of every download as being a lost sale. That said, "things cost money" is not really a great argument for or against patents (or copyrights), but rather a simple statement of economics: would consumers and companies save money if they never had to pay for copies or licenses? Yes. Is that a reasonable argument for abolishing IP protection? No.
We have better arguments and better avenues for reform - damages based on patent owner's sales/licenses, instead of infringer's profits, for example - that may actually have traction. Trying to get Congress to reform patent law simply because licenses are expensive is destined to fail.
But that is the bullshit that I'm talking about. Everything uses a client system and a server. Tying the patentability to that is a load of horseshit ten miles deep.
Respectfully, you're confusing two things. The fact that there's a client and server in the claims - hardware - makes the claims not purely a mathematical algorithm, and therefore are patent-eligible under Bilski and 35 USC 101. However, yes, everything uses a client system and server, so alone, those elements don't make it new (35 USC 102) or nonobvious (35 USC 103).
Basically, these are not drawn to software-only because of those elements, and therefore shouldn't be rejected as just math... But patentability is tied to the other parts of the claim that include the novel, nonobvious algorithm.
Well, I'm not pointing my finger at that type of patent. If it uses hardware, that's different. My problem is with patents on pure software. For example the patent on 1-click at Amazon. That should not be patentable.
From that patent:
1. A method of placing an order for an item comprising:
under control of a client system,
displaying information identifying the item; and
in response to only a single action being performed, sending a request to order the item along with an identifier of a purchaser of the item to a server system;
under control of a single-action ordering component of the server system,
receiving the request;
retrieving additional information previously stored for the purchaser identified by the identifier in the received request; and
generating an order to purchase the requested item for the purchaser identified by the identifier in the received request using the retrieved additional information; and
fulfilling the generated order to complete purchase of the item
whereby the item is ordered without using a shopping cart ordering model.
That one includes hardware systems. While you could perform the underlying mathematical algorithm with a pad and pencil, you couldn't actually infringe the patent.
In general, a person may not export from the U.S. any goods, technology or services, if that person knows or has reason to know such items are intended specifically for supply, transshipment or reexportation to Iran.
I wonder what is the difference between "knows" and "has reason to know"? If you have reason to know something, then presumably you know it?
It's pretty much irrelevant, except as an evidentiary thing. If you don't admit that you know something, but there's evidence that you were told about it, saw papers, etc., without somehow scanning your brain, we can't definitely state that you do know it, but you certainly had reason to know it.
The other way it comes up is "known or should have known".
Moreover, this is not the only incident.
"A second Iranian American interviewed in the report also said he was barred from purchasing something at an Apple store in the Atlanta area when he was helping an Iranian student buy an iPhone. Zack Jafarzadeh said he and the friend were speaking Farsi when the sales rep denied their purchase. "We never talked about him going back to Iran or anything like that," Jafarzadeh said, according to the report."
The export regulations also bar selling to foreign nationals (i.e. Iranians) that are in the US. Jafarzadeh wasn't buying it for himself, but rather, he was helping his friend purchase it. His friend, however, is barred from purchasing, regardless of whether he "goes back to Iran or anything like that."
Slashdot Mirror
The standards for contributory infringement were established in MGM v Grokster. To be secondarily liable the defendant must have encouraged or induced the infringement. Mere 'negligence' would not suffice.
Absolutely right, but again, the plaintiff wasn't claiming "mere 'negligence'," but "encourage[ment] or induce[ment of] the infringement." As I posted, from footnote 17 in the decision (emphasis added):
It bears emphasis that, despite the “negligence” label, this complaint alleges that Tabora knowingly facilitated and actively participated in Whetstone’s alleged infringement. This case does not involve a concededly ignorant but allegedly careless defendant.
And, as the judge noted:
The right that Liberty seeks to vindicate... is protected by the Copyright Act under the doctrine of contributory infringement.
So, as noted, the summary isn't correct, because the plaintiff wasn't arguing what you claimed they were arguing.
In one of the myriad BitTorrent downloading cases against individuals, one plaintiff's law firm thought they'd be clever and insert a 'negligence' claim, saying that the defendant was negligent in failing to supervise his roommate's use of his WiFi access.
That's not exactly right. The firm put in the negligence claim because (for some unknown reason), they thought that the copyright act only provided for liability of a direct infringer (the roommate), and not anyone else who contributed to the infringement (the defendant WiFi owner):
Liberty nevertheless argues that its negligence claim asserted here is not preempted because, as the Court understands the argument, the negligence claim rests on infringement by others whereas the Copyright Act provides a remedy only against a direct infringer.
That's incorrect, as the judge notes:
The right that Liberty seeks to vindicate by its state law negligence claim – the imposition of liability on one who knowingly contributes to a direct infringement by another – already is protected by the Copyright Act under the doctrine of contributory infringement.
Furthermore, they're not actually alleging negligence at all - from footnote 17:
It bears emphasis that, despite the “negligence” label, this complaint alleges that Tabora knowingly facilitated and actively participated in Whetstone’s alleged infringement. This case does not involve a concededly ignorant but allegedly careless defendant.
Basically, the firm wanted to go after both roommates and, due to an inept misunderstanding of copyright, alleged (i) direct infringement by the roommate, and (ii) "knowing and active" negligence by the WiFi owner. 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."
The defendant isn't off scot free... The plaintiffs have a contributory infringement complaint that still names him.
I generally support gay rights, but I've always been a little meh on the idea of gay marriage. What I'd really like to hear is for a gay marriage advocate to explain to me why polygamy should be illegal yet gay marriage should be legal.
This is a classic troll argument: he assumes that gay marriage advocates believe polygamy should be illegal, and then tries to paint them as hypocrites, in order to deflect attention from his own anti-gay marriage beliefs. All of that ignores the fact that most gay marriage advocates are also fine with legal polygamy (provided laws get updates, as you and other posters note).
Slide to unlock is pretty obvious to anyone who has ever used a bolt...
This is what one looks like for anyone unfamiliar with the term:
http://upload.wikimedia.org/wikipedia/commons/1/1b/Bolt_lock.jpg
And if Apple's patent claimed "sliding an implement from one position to another to unlock a portal" then you'd be right, but it doesn't. In other words, if a physical bolt would infringe Apple's patent, and the physical bolt came first (which it did), then the bolt would anticipate the patent and render it invalid.
But it doesn't... here's the first claim:
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.
A bolt lock wouldn't infringe that claim, and therefore, a bolt lock also doesn't anticipate that claim.
But we ALSO have Jefferson on record that he did not think copyrights/patents should exist. "There is not in nature a natural right to protection of the thinking power we call an idea."
Actually, believe it or not, your post is the sole hit on Google for that phrase. Apparently the robots hit Slashdot a half hour ago.
On the contrary, what Jefferson said was:
It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs... If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.
The quote, from a letter to Issac McPherson, is in context of a discussion as to whether patents are a natural right, like property ownership, that may be passed on to progeny forever. And Jefferson concludes that:
Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.
Basically, unlike a right to privacy, or a right to speech, or a right to free exercise of religion, patents are not a natural right. Congress could decide tomorrow to abolish the Patent Act, as such is in their power, and arguments about due process would be moot.
He says that nature "designed" ideas to be freely shareable around the world, for the betterment of mankind. So it's pretty clear he never granted a patent to himself, because he opposed them on principal.
On the contrary, what the above quote and the rest of the letter says is that patents are a legal invention of man, that society can choose to give power to or not, and they are not a natural, inalienable right. He concludes, however, that patents are for the benefit of society and remarks upon the maturation of the granting rules involved. There is certainly no indication that Jefferson "opposed them on principal", but rather, at most, felt they should be limited monopolies, as the Constitution says.
As the president, or member of his cabinet, you are supposed to Execute the laws even if you don't like them. The exception being unconstitutional laws (as required by your oath). Since the patent law was constitutional, Jefferson did his job and obeyed the constitution. (Something recent presidents ought to learn to do.) That doesn't mean he approved of patents as shown by the fact he could have granted one to himself but never did.
He could also have granted himself a golden palace and used the army to defend it. The fact that he didn't doesn't mean that he disapproved of gold or palaces, just as the fact that he never granted a patent to himself doesn't mean that he disapproved of patents... Rather, they show that he wasn't corrupt.
... he sure did a great job as the author of the Patent Act and first Patent Examiner. Isn't it somewhat more reasonable to say that he never patented his own inventions because, y'know, he'd be the one examining them and granting the patent and that would be a huge ethical breach and lead to charges of corruption?
1 - Judges are not educated enough to make a ruling need to be retired. Sorry, but why are you presiding over a technology case when you know nothing about technology?
Just because you don't like the ruling doesn't mean the judge doesn't understand technology. Prior to joining the bench, Judge Koh spent a decade doing patent litigation.
Tellingly, when Judge Koh has decided the other way in the past - invalidating patents or denying injunctions - Slashdot posters have repeatedly said, "finally, a judge that understands technology!"
90 million is bullshit. The bonds for this stuff (software "patent infringement" via the ITC loophole)...
From the summary: "U.S. District Judge Lucy Koh ordered the preliminary injunction on Friday, granting a motion Apple made in February that alleged Samsung infringed on several of its patents."
This has nothing to do with the ITC. This was in federal court in the Northern District of California.
I'm in agreement with you. But I'm posting as AC, for a variety of reasons. Namely, I am a patent attorney. I specialize in software patents and handle both prosecution and litigation. I also used to be a software developer, so I'm sensitive to the problems that software patents can cause.
So, with that being said I might be a little biased, but the reality is that I think most people would have way less problems with software patents if there were no more NPEs. The vast majority of patent litigation in the electronics/software industry is done by NPEs. While it does happen, you don't generally see the big firms suing the little guys. They typically sue each other, see,e.g.,Google, MSFT, Apple, and Samsung. If they want to see each other, who cares.
I think for there to be a workable NPE rule, you would have to limit the assignment of patents. It would be too unworkable to determine whether the company "practices" the patents. It would leave too much to interpretation. Moreover, it would be used to limit the scope of the patent to the items being practiced, which is not the idea of a patent. My rule would work like this:
1. Can only reassign in cases where your company or line of business is being sold 2. For a company to assert a patent they must show revenues from sales (other than licensing revenues) 3. You are on the hook for Attorney fees if Def wins on non-infringement (invalidity is more tricky, since its somewhat of a crapshoot anyway) 3. There would be an exception would for the original inventor/assignee, who need not show anything (they could essenttially by an NPE, if they wanted). They would still be on the hook for Attorney fees.
These are simple black letter rules, that would probably stop the vast majority of NPE suits.
Yes, and it would also kill the research departments at MIT, Cornell, USC, Harvard, Georgia Tech, etc., etc.
I have to question the credibility of any patent attorney who doesn't realize that universities file for and assign or license thousands of patents each year.
And while $89 million may sound like a lot, Google just spent a significant fraction of that amount defending itself against Oracle. If you own a $90 million company, and a major patent troll comes after you (whether its actions are legally justified or just plain economic terrorism), then you're going to pretty much go broke defending yourself, even if you win.
Unlikely. Even super expensive patent litigation isn't going to cost more than $5 million. And consider, for your $90M company to go broke defending itself, you'd be spending $90M on litigation, no? At which point, what exactly is the patent troll supposed to collect if they win? Your office furniture? No, it's in their interests for you to (i) settle or (ii) lose, but lose early and inexpensively. Having you go broke is the worst possible outcome for the troll, since they're parasites.
They are different aspect ratios. ANY slashdotter would likely have picked the correct one.
Probably the first lawyer misinterpreted the question to mean could they see the samsung logo from that distance.
Unlikely, since there's no logo on the front.
2006 Samsung digital photo frame viewed from other angles
So it is agreed that the design of the iPad from a frontal perspective is basically identical to Samsung's digital photo frame.
So it is likewise agreed that Samsung's digital photo frame does not invalidate Apple's design patent (I can play your silly game too, you know).
And since the side by side comparison posted above only shows frontal views, then it is also agreed that the frontal perspective is the most important one.
Nope, I don't agree to that. This lawsuit looked at all perspectives, not just the "frontal" one.
If a differing rear design is supposed to be a valid differentiator, then see: iPad vs Galaxy Tab from another angle The iPad and Galaxy Tab appear very different when viewed from the rear; obviously not the same device.
Yes, they do. The iPad also appears very different from the XBox 360, which, like the Galaxy Tab, was not an issue in this lawsuit. There are a whole host of things that the iPad does not resemble, such as a car, a toaster, and a tuba.
The iPad does however look a lot like the Galaxy Tab 10.1 , which was the product in question.
An honest, good faith poster would acknowledge that point and concede that they had inadvertently compared the iPad to a product that wasn't in the lawsuit and is not subject to an injunction, much like toasters and tubas. Believing you to be such an honest, good faith poster, I'll wait for your reply.
Cheers.
Right. They wait until you're making money, and then they come take it. Half a million? No. The damage can be your entire company. What would RIM look like right now if they hadn't suffered a half a billion dollar patent tax on push email?
Probably no different. The RIM v. NTP settlement was in March 2006, at which point their stock price was at $27. 16 months later, they were at $85 and did a 3:1 split... at which point it then went up to a peak of $144... So one share of $27 stock when that half billion dollar "tax" (really? taxes go to the government, this was to the patent owner) was then worth $432, or a 1600% increase.
No, what killed RIM (aside from the 2008 recession, but that hurt everyone) was the fact that they rested on their Blackberry laurels and never innovated further, believing themselves to have a lock on the enterprise market, and iOS and Android shot past them.
While your main point is no doubt correct, it should be pointed out that "less than $100 Million" is NOT "$100 million".
Conceded... From a different post, the "small company" category had a median size of $89 million.
Unfortunately, there's no exact data on what the smallest of the smalls were, but if their "less than $100 million" had a median of $89 million, we're probably not talking a bunch of sub-$1 million companies.
Seems the Apple reality distortion field didn't die with Jobs. What really happened is that the lawyers the judge was questioning said he couldn't tell them apart, but when the judge asked if the others could, another quickly supplied the correct answer. In other words, they could tell the difference.
Did the lawyer who guessed correctly guess? It's a 50-50 shot that could save their case, so it would have been reasonable to do so. But maybe he didn't... in which case, why was it just a simple "that one" rather than a description of the distinct features that led to the conclusion?
See, what really matters is that the judge couldn't tell them apart and thought that a reasonable person couldn't tell them apart either. That Samsung's lawyers, who had meticulously poured over details of both the iPad and the Galaxy Tab, couldn't immediately say "yes, your honor, the Tab has features x, y, z that are distinctive from the iPad" was what doomed them.
But of course what really happened is rather inconvenient for Apple fans' theory that the Galaxy Tab's design must be a ripoff of the iPad, instead of taking its design cues from another Samsung product.
Not so much.
Also, if you see the registered design it's about as vague as you can get. Nowhere does it specify the roundness of the corners, the bezel, the aspect ratio, etc. It's just a very rough pencil sketch.
With all due respect, that's what a design patent is - a pencil sketch. It's not allowed to have additional description. Rather, the figures are the description, and so yes, it does specify the roundness of the corners, the bezel, the aspect ratio, etc. You just have to use a ruler and protractor.
1993 Apple early tablet
2006 Samsung digital photo frame
2010 Apple iPad
2006 Samsung digital photo frame viewed from other angles.
I have considered more than once going into business with an invention, but the thought that some patent holder could come along and sue my pants off is the main factor that has deterred me.
With all due respect, you're an idiot, as the GP stated. Read the study - patent trolls are going after "small companies", which they define as companies with a median of $89 million in annual revenue. If you're turning down the potential for tens of millions in annual revenue, out of fear of a half million dollar lawsuit, then you're an idiot.
But honestly, you're not an idiot. You just don't realize that trolls aren't going to spend half a million to sue someone with a hundred thousand in revenue, understandably with all the scare stories here on Slashdot. Go into business. If you manage to strike it big and earn millions upon millions of dollars, then you can spend a few sleepless nights worrying about trolls from the comfort of the giant pile of money you're using as a mattress.
...because the potential entrepreneur expects that if they become successful, a patent troll will take all their money?
Some, but they probably lack the wisdom to be successful at all, if that's what they're afraid of. Trolls are parasites, no? A parasite that kills its host is not a very good one. Trolls want companies to manufacture products and grow big so that they can take a share of royalties. It simply doesn't make sense to spend half a million suing a start-up into oblivion, if that start-up has only made a few hundred thousand.
In fact, look at the line in the Summary here:
Moreover, although large firms accrued over half of direct costs, most of the defendants were small or medium-sized firms, indicating that [non-practicing entities] are not just a problem for large firms.
Sounds scary, right? Small firms... That's like two really successful guys in a garage who made half a million in sales, right? Wrong. From the article:
Organisations of all sizes were affected by 2011 patent action, with the study finding that half of all patent litigation cases hit companies with less than $US100 million in annual revenue.
So, yes, if you're a startup with a hundred million in annual revenue, you may be a target for patent trolls. And if you're an entrepreneur who decides not to launch a hundred-million dollar business because they may have to pay license fees, then you're either an idiot or you're fooling yourself about your potential valuation.
The study suggested that during 2011, 2150 companies mounted a total 5842 defences in US cases against intellectual property companies that owned and licensed patents without producing any related goods of their own.
As a result, companies lost an estimated $US29 billion in direct costs — legal and licensing fees
Well, yes, paying for a license or facing litigation is always going to be more expensive than simply copying someone else's work without paying for it. Similarly, copyright piracy costs trillions, according to the RIAA/MPAA, who think of every download as being a lost sale. That said, "things cost money" is not really a great argument for or against patents (or copyrights), but rather a simple statement of economics: would consumers and companies save money if they never had to pay for copies or licenses? Yes. Is that a reasonable argument for abolishing IP protection? No.
We have better arguments and better avenues for reform - damages based on patent owner's sales/licenses, instead of infringer's profits, for example - that may actually have traction. Trying to get Congress to reform patent law simply because licenses are expensive is destined to fail.
But that is the bullshit that I'm talking about. Everything uses a client system and a server. Tying the patentability to that is a load of horseshit ten miles deep.
Respectfully, you're confusing two things. The fact that there's a client and server in the claims - hardware - makes the claims not purely a mathematical algorithm, and therefore are patent-eligible under Bilski and 35 USC 101. However, yes, everything uses a client system and server, so alone, those elements don't make it new (35 USC 102) or nonobvious (35 USC 103).
Basically, these are not drawn to software-only because of those elements, and therefore shouldn't be rejected as just math... But patentability is tied to the other parts of the claim that include the novel, nonobvious algorithm.
Well, I'm not pointing my finger at that type of patent. If it uses hardware, that's different. My problem is with patents on pure software. For example the patent on 1-click at Amazon. That should not be patentable.
From that patent:
1. A method of placing an order for an item comprising:
under control of a client system,
displaying information identifying the item; and
in response to only a single action being performed, sending a request to order the item along with an identifier of a purchaser of the item to a server system;
under control of a single-action ordering component of the server system,
receiving the request;
retrieving additional information previously stored for the purchaser identified by the identifier in the received request; and
generating an order to purchase the requested item for the purchaser identified by the identifier in the received request using the retrieved additional information; and
fulfilling the generated order to complete purchase of the item
whereby the item is ordered without using a shopping cart ordering model.
That one includes hardware systems. While you could perform the underlying mathematical algorithm with a pad and pencil, you couldn't actually infringe the patent.
In general, a person may not export from the U.S. any goods, technology or services, if that person knows or has reason to know such items are intended specifically for supply, transshipment or reexportation to Iran.
I wonder what is the difference between "knows" and "has reason to know"? If you have reason to know something, then presumably you know it?
It's pretty much irrelevant, except as an evidentiary thing. If you don't admit that you know something, but there's evidence that you were told about it, saw papers, etc., without somehow scanning your brain, we can't definitely state that you do know it, but you certainly had reason to know it.
The other way it comes up is "known or should have known".
Moreover, this is not the only incident.
"A second Iranian American interviewed in the report also said he was barred from purchasing something at an Apple store in the Atlanta area when he was helping an Iranian student buy an iPhone. Zack Jafarzadeh said he and the friend were speaking Farsi when the sales rep denied their purchase. "We never talked about him going back to Iran or anything like that," Jafarzadeh said, according to the report."
The export regulations also bar selling to foreign nationals (i.e. Iranians) that are in the US. Jafarzadeh wasn't buying it for himself, but rather, he was helping his friend purchase it. His friend, however, is barred from purchasing, regardless of whether he "goes back to Iran or anything like that."