"I got my first gun back when most Americans, and most conservative Americans, rightly believed that the Second Amendment was not about personal gun-toting at all."
Constitutional scholars have disposed of your asserted conclusion.
Constitutional scholars have done research studies in the 1970s identifying that only a minority of Americans believed the Second Amendment was about bearing arms as part of a militia? Because that's all he asserted.
Constitutional scholars may have indicated an error in those beliefs, but your linked article says nothing about percentage of the population. Furthermore, your linked article makes a leap to an unsupported conclusion: that the second amendment guarantees a right to self-defense against criminals. The article provides plenty of citations - which I agree with - that the 2nd Amendment is about preventing the government from rounding up arms to prevent a rebellion, as the British government was doing in the pre-Revolutionary era. However, the 2nd Amendment does not guarantee a right to use those weapons. Obviously, in fact, using them against the government would be an act of treason, just as the Revolution itself was treason, and thus barred by the Constitution.
No, as your cited article correctly notes, the 2nd Amendment is about the right of the people to keep arms as a deterrent to a tyrannical government. It says nothing about using them, or using them against criminals. The latter right is more properly found in the 5th Amendment.
When I left, there were no notification emails for an account being reactivated, as such, unless a friend questions you through other means about being online, you would not be aware your account was activated.
... or there's my experience. Similar to the GP poster, I disabled my account after WotLK, intending to be on hiatus until the next expansion came out. As you note, I received no notification emails. Later, when Cataclysm arrived, I went to re-activate my account, and found I had been banned for gold selling a month or two after I disabled my account.
At this point, we have only mere anecdotal evidence, but we seem to be accruing quite a bit of it, from disparate sources. And no, my machine has no malware on it, and my Blizzard password was only used for WoW.
Actually, it was the Police Commissioner saying that:
“It's one thing when providers learn what pizza or movies you like. It’s another to create a database of stops and arrests by police,” [Deputy Police Commissioner Paul Browne] said in an email statement. “On the plus side, the videos may capture images of suspects in the vicinity of a stop and be helpful to the police in that regard. Presumably, the NYCLU database will [include] the names of the videographers and provide a rich vein of potential witnesses to crimes being investigated by the NYPD and other authorities.”
Translation: we're coming after the videographers. You upload a video, expect a knock at your door from a hostile police officer, demanding to know what you saw, why you were in the area, maybe you were part of the crime, what's your alibi, mind if I look around your house, we're going to need you to come downtown and answer some questions, etc.
While some individual cop may decide to do that; my experience is that most police agencies don't have the time to waste doing that nor, in general, are even interested in doing what you say. They really do want to catch bad guys while not trampling civil rights, believe it or not. That's not to say they all are perfect or card carrying ACLU members, but they do care about following the law.
Sure, but they want to protect their own before they do any of those things. That's why, for example, the police department here in Boston fought all the way to the 1st Circuit of Appeals to protect their officers who arrested the guy filming them beating a guy in Boston Common. That's why, for example, a guy who filmed cops was arrested, beaten, and had his phone erased. That's why these people were arrested.
And most importantly, that's why the police commissioner in the article is laying the ground work for insisting that the NYCLU identify each person taking video: it's to cause a chilling effect. The police "really do want to catch bad guys," but maybe every so often, they get frustrated when a suspect isn't polite and helpful, or they get scared when they see him reach into his pocket for an ID and then realize it wasn't a weapon, but now they're angry, so they just have to beat them a little bit, y'know? And that's understandable, they're all just good men and women, laying their lives on the line every day, so they shouldn't have to be afraid that someone with a camera is going to be second guessing their decisions, right? I mean, if they have to hesitate to ask "should I really be breaking this guy's ribs with my night stick, what if someone's taping me," then that same hesitation might mean they get shot in a confrontation, right?
Hence why, yeah, the cops are going to spend time tracking down the videographers, intimidating them, and spreading the message that if you tape the cops, you're going to be harassed, arrested, possibly beaten, and then released without charges... this time.
The article alluded to the ACLU keeping the up loaders info along with the video. If that's the case, the person filming could conceivably become a witness and the video used in a court case. As was noted, that could help law enforcement (or defendant claiming police abuse) defending a stop or developing a case against someone who turned out to have committed a crime.
Actually, it was the Police Commissioner saying that:
“It's one thing when providers learn what pizza or movies you like. It’s another to create a database of stops and arrests by police,” [Deputy Police Commissioner Paul Browne] said in an email statement. “On the plus side, the videos may capture images of suspects in the vicinity of a stop and be helpful to the police in that regard. Presumably, the NYCLU database will [include] the names of the videographers and provide a rich vein of potential witnesses to crimes being investigated by the NYPD and other authorities.”
Translation: we're coming after the videographers. You upload a video, expect a knock at your door from a hostile police officer, demanding to know what you saw, why you were in the area, maybe you were part of the crime, what's your alibi, mind if I look around your house, we're going to need you to come downtown and answer some questions, etc.
I called in once to see about getting a diagnosis on a car issue. They took the info, and said they would get back if they found it interesting, but if they did, then the whole phone call would be essentially scripted. They would do (or have done) a diagnosis off air, then pretend to figure it out all in the span of a few hyena-larious moments on air.
Experts my ass.
Sorry, that's a lie. I was the assistant chief engineer for WBUR for 8 years, and I sat in on the recordings of many of their shows. I've also consulted for Car Talk, fixing their network and computers, and have stayed at one producer's house in New Hampshire.
The producers screen the calls (they get hundreds each week), but Tom and Ray know nothing about each call. They're presented with the person's name, city, and car type, and that's it.
Mind you, the recording of the show is over 2 hours, and then gets edited down, but no - the calls are not scripted, they haven't pre-diagnosed the problem, and yes, they figure it all out during the phone call. That call may be edited from 20 minutes down to 5, but it's still their first (and only) crack at the problem.
I'm not sure why you'd lie about something like this, but it's probably some sort of mean joke like your sig, because of your own personal insecurity and desire for attention. Just as I hope others don't believe this, I hope your wife sees your posts.
Then the existence of the Viao does not render the patent invalid as not novel or not obvious, by definition.
but if suggested that i put 2 books in front of you and one has sharp corners and the other had rounded corners, you'd say one or both should be patented?
Was I allowed to do any prior art searching or consider other art, or is that the sole extent of what was in front of me?
If so, again, by definition, both would be patentable.
Lack of novelty and obviousness are quasi-judicial determinations, and therefore are subject to the constitutional requirements of due process... meaning they must be supported by evidence. One cannot simply look at a laptop and say, without evidence, that it shouldn't be patentable, any more than one can look at a defendant say say, without evidence, that they're guilty of murder.
"The Examiner looked at the Vaio and properly determined that this design was different and not obvious in view of it."
then the Examiner is a fucking arse...
So, you're saying that if I put the Viao and the Macbook Air on a table in front of you without booting them, you'd honestly think I set down two Viaos or two Macbook Airs?
And, uh, a company's own products can't be 'prior art'...
Not true:
35 USC 102: A person shall be entitled to a patent unless —
(b)the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States
That applies even if the description, public use, or sale was by the inventor. It's to keep people from selling a product for years, waiting until a competitor appears, and only then filing an application.
letting the consumer/market decide?
Isn't this what capitalism is about, the consumers choose based on price, quality, features etc...
Yes, and what design patents are about is protecting your particular design aesthetic and brand so that consumers can make that choice. If you went into a store and saw two identical bottles of soda labeled Coke, but one was really by Pepsi, wouldn't that seem to be intentionally confusing to try to mislead you into buying their product? Similarly, if you see two iPhones, but one was really a Galaxy, wouldn't that seem to be intentionally confusing to try to mislead you into buying Samsung's product? That's what this is really about. And though I'm sure you're a savvy consumer who would notice the differences, we're interested in protecting the entire consumer base, and not just those who aren't easily misled.
In oil spills, the oil floats on top of the wate, not the other way around. How can this help clean up oil spills?
If you read the summary, you'd learn that these things stride on the border between the oil and water, not between the oil and air - they're in the perfect place to clean up the oil.
If you clicked on the link, you could have even just looked at the picture. Then you wouldn't have had to read anything.
Slashdot Posters: Lowering Expectations Daily.
A suit for "trolling" would be a suit over malicious prosecution, or harassment, or extortion, or something like that. This is a suit for noninfringement and declaratory judgement, saying that (i) Oracle doesn't infringe 4 Lodsys patents; and (ii) even if they do, the patents are invalid. These are the same claims that every defendant files in their response when they get sued. Oracle is simply taking a preemptive shot, presumably because Lodsys sent them a letter asking them to take a license.
The only odd part is that when accused infringers take this preemptive shot, they usually don't do it in the Eastern District of Texas. It's actually one of the reasons to file first when someone hints at a lawsuit - you get to choose where to go.
I was under the impression that U.S. law was still unsettled regarding the ability to patent software.
But if that were true, I would have expected at least *one* patent lawsuit in recent years make headlines by claiming that software patents were invalid, and getting a ruling on that issue.
Anyone know where we're at with this?
The Supreme Court has implied that software patents are valid, if they're not directed to an abstract idea. In some contexts, that can mean that they transform matter from one state to another, in others it can mean that they're tied to a machine. In still others... well, we don't know. That's where we're at.
Basically, they're tiptoeing around, trying to figure out how to say what they really want to say, which is that patent claims can't be valid if you can infringe them purely by thinking, because that creates a thoughtcrime. It's like back when they said that you can't get a patent on a law of nature, such as E=MC^2, or A=GM/r^2: what they never came right out and said, but seems to be hinted at by all sorts of decisions, is that if you could, you could get an injunction to make people stop being bound by gravity, or not use energy, or whatnot - or, rather, that you could require every person in the world to pay you royalties. Similarly, if you got a patent on thinking that 2+2=4, or realizing that an elevated level of compound A indicates a patient has disease B, then you could force someone to pay royalties simply for thinking. It's the old "don't think of a pink elephant... too late." So, currently, they want to see some affirmative actions, performed by a machine at the direction of a user, in the patent claims. You can't infringe just by thinking, you actually have to take some steps.
This says nothing about novelty (35 USC 102) or obviousness (35 USC 103). Those are different statutes... The above is just about whether a claimed process - even the most novel, nonobvious process in the history of the universe - is patent eligible or not.
Most university departments are true research organisations, and they *don't* seek patents.
This may be true for your local community college, but it's not true for any university with an engineering or science program. Harvard, MIT, USC, Standford, Johns Hopkins, Georgia Tech, Cornell, etc. I know, because I'm a patent attorney and have dealt with many of them and seen patents from the others.
Prior art is only one test. Novel is not sufficient, only necessary. Obviousness to a practitioner of the art should also invalidate a patent.
Respectfully, the term you're thinking of is not "prior art" but "anticipatory prior art" - it's okay, most people don't understand the distinction. Anticipatory prior art is a single reference that discloses each and every element of the claimed invention, showing that the invention is not novel. Prior art is merely anything in the art that's prior. TCP is prior art for Bittorrent. A Model T is prior art for a Hybrid SUV. Etc.
Why this is important is because there is already a second test for obviousness: a claimed invention is obvious if one or more prior art references, alone or in combination, teach or suggest each and every element of the claims. You still need to find those prior art references, though.
Why can't a practitioner in the art simply be able to look at the patent and, without any evidence or prior art references, be able to say, "it's obvious"? For the same reason a judge can't look at a defendant up for murder, and without any evidence, witnesses, or even a body, and say "he's guilty": due process. Both are judicial decisions (quasi-judicial in the case of the PTO, but it applies), and therefore, are subject to the requirements of due process: evidence supporting a conclusion, a fair right to be heard, etc.
This is a variation on layaway departments. You choose an item as a gift and the store holds it for you until later to pay for it. If you choose to not give the gift (or the recipient says they don't want it) you don't pay for it.
Unlike layaway, however, the item is delivered to the recipient. If you hadn't paid, a store's layaway department would be pretty upset.
The "unusual and nonobvious" part then has to do with a business transaction - terms of payment. IIRC business methods are out or on the way out for patents. In the real world part of this is covered by sending products C.O.D. (cash on delivery).
I think your gift recipient would be mighty pissed off if you send them a gift C.O.D.
What about kickstarter? It's the only delayed-charge system I can think of off the top of my head, and it deals with actual money instead of real/virtual objects, and the accept/receiving is done by a third party, but there's a chance it could be prior art.
It'd be tough... They were both launched in 2008, so the exact day would matter. On top of that, Kickstarter doesn't let backers withdraw their investment.
Sounds almost exactly like a Steam gift, with the minor exception that the payment wouldn't be up front.
That's in the patent claims, though, so to invalidate the patent, you have to find another reference that includes that bit.
Determining whether the gift has been accepted, re-sending to another person, even allowing the recipient to "forward" it to someone else or outright decline it is all part of Steam.
Those are actually only in dependent claims. This patent rises or falls on the fact that the gift giver isn't charged until after the recipient has accepted, and the gift giver can cancel the gift prior to acceptance ance is never charged.
It also means that if Steam doesn't do that, then Steam doesn't infringe.
PayPal have a payment option called "gift" which is a payment method not intended for purchasing items as the sender cannot file a "item not received" type complaint against the recipient to get the money back.
Important distinctions. As you note, with PayPal, you pay first, the recipient declines and the sender can file an item not received complaint and get a refund. That's the opposite of the patent, which recites:
determining whether the gift has been accepted using the access mechanism;
when the determination is that the gift has not been accepted, enabling the giver to cancel the gift such that no payment is processed; and
when the determination is that the gift has been accepted, initiating payment by a payment mechanism associated with the giver.
In the patent, the gift giver is not billed until the recipient accepts... and the gift giver can cancel prior to the recipient accepting the gift, and they're never billed. There's no refund process required.
PayPal isn't anticipatory prior art, but it also doesn't infringe.
Steam uses gifting, as does gamersgate. So prior art already exists.
Contrary to the Slashdot assertion, this is not a patent on "gifting". This is a patent on a gifting system that doesn't bill the gift giver until the gift is accepted, and allows the giver to cancel the gift if the recipient has not accepted it in time. Steam and Gamersgate (as well as the Wii Store, iTunes, etc.) all charge the giver immediately. Not only are they not anticipatory prior art, they also don't infringe.
Giving gifts to others is something people have done for thousands of years. Doing the same thing electronically? No different, unless there is some ingenious new mechanism being used. -------- If that isn't the case, this patent is worth nothing, and will likely be overturned at the first opportunity.
If you checked TFA, you'd find that even the article notes that there's an unusual twist here... the gift giver can cancel the gift if the recipient has not accepted it, and is not charged. Most systems require the gift giver to pay first, and if the recipient refuses, they'd have to get a refund, at best.
Nintendo has had this service for years. You've been able to send games as gifts on Wii Shop Channel for quite a while., when the released the console, if not shortly after. Actually, I just checked, and the patent was filed September 30, 2008, which was well after the release of the Nintendo Wii, and Wikipedia states that the gift feature was introduced on December 10, 2007. Well before the patent was filed. This isn't some kind of prior art that nobody knew about. This is something very obvious that the patent office should have seen as a reason to reject the patent.
Did Nintendo's gift feature not bill you until the recipient accepted the game, or would it allow you to cancel the gift if it hadn't been redeemed? Or, more likely, did it bill you immediately and deliver the game?
If the latter, then it's not anticipatory prior art. The claims of this patent explicitly require:
determining whether the gift has been accepted using the access mechanism;
when the determination is that the gift has not been accepted, enabling the giver to cancel the gift such that no payment is processed; and
when the determination is that the gift has been accepted, initiating payment by a payment mechanism associated with the giver.
There is one unusual twist: The patent describes the ability for the giver to delay payment until the recipient has accepted the digital gift, or cancel the order (and avoid payment) if the gift hasn’t been accepted and downloaded by the recipient after a certain period of time.
The FA goes on to say:
However, rest of the patent describes ideas that will seem less than novel to most people who use the Internet.
... and, so what? If the patent describes something unusual and nonobvious, then the fact that it also describes computers, or the Internet, or TCP, or anything else is irrelevant, provided the patent claims - the only part with any legal weight - recite that unusual, nonobvious bit.
Here's the method claim:
16. A computer-implemented method to enable selection of an electronically transferrable item that is electronically deliverable from a network resource to be presented as a gift, the computer-implemented method comprising:
obtaining a selection of an electronically transferrable item that is electronically deliverable from a network resource to be presented as a gift to a recipient from a giver;
generating a gift notification to be presented to the recipient, wherein the gift notification includes an access mechanism to enable the recipient to accept the gift as a one-time delivery without requiring the recipient to hold an account with the network resource;
determining whether the gift has been accepted using the access mechanism;
when the determination is that the gift has not been accepted, enabling the giver to cancel the gift such that no payment is processed; and
when the determination is that the gift has been accepted, initiating payment by a payment mechanism associated with the giver.
Those last two steps are that "unusual twist" that the article admits is in there.
Incidentally, if you want to invalidate a patent by showing sufficient prior art exists, you have to show prior art exists for each and every claim element. Not that gifts exist, or that Christmas exists, or that something with a similar title or abstract exists. To invalidate this patent, you need to find a reference, published or in use prior to Sept. 30, 2008, that enabled a giver to cancel a gift if the gift has not been accepted, or would initiate payment if the gift had been accepted. Most systems would bill first, deliver second, and if the recipient declined, you had a long fight for a refund ahead of you.
Tell me something, between Christianity and Islam, which one of the two has committed nearly 19,000 terrorist attacks since 9/11? I'll give you a hint, it's not Christianity.
Well, it's not Islam either, because like Christian, Islam is a religion, and abstract ideas like religions can't commit any physical actions, much less "19,000 terrorist attacks". Maybe you meant followers of one religion vs. another? But then, even that starts begging the questions of how do you define a "terrorist" attack, whether the followers committing the attacks are doing them in the name of their religion or not, how representative the followers are of the religion by percentage, etc. One man's terrorist attack is another man's insurrection against a heavily-armed invader: for example, is hiding behind walls waiting for troops from an occupying force to cross a bridge and then popping up to catch them in a cross-fire ambush a terrorist attack? Or is it the actions of Revolutionary Minutemen against the British army?
No, you have your head in the sand. Read the Qu'ran sometime and some of the other Islamic writings. They demand that Muslims emulate Mohammed, and they go into great excited detail about how Mohammed massacred people who mocked him.
Mind you, the same is true of the Old Testament and Yahweh.
Slashdot Mirror
"I got my first gun back when most Americans, and most conservative Americans, rightly believed that the Second Amendment was not about personal gun-toting at all."
Constitutional scholars have disposed of your asserted conclusion.
http://www.guncite.com/journals/reycrit.html
Constitutional scholars have done research studies in the 1970s identifying that only a minority of Americans believed the Second Amendment was about bearing arms as part of a militia? Because that's all he asserted.
Constitutional scholars may have indicated an error in those beliefs, but your linked article says nothing about percentage of the population. Furthermore, your linked article makes a leap to an unsupported conclusion: that the second amendment guarantees a right to self-defense against criminals. The article provides plenty of citations - which I agree with - that the 2nd Amendment is about preventing the government from rounding up arms to prevent a rebellion, as the British government was doing in the pre-Revolutionary era. However, the 2nd Amendment does not guarantee a right to use those weapons. Obviously, in fact, using them against the government would be an act of treason, just as the Revolution itself was treason, and thus barred by the Constitution.
No, as your cited article correctly notes, the 2nd Amendment is about the right of the people to keep arms as a deterrent to a tyrannical government. It says nothing about using them, or using them against criminals. The latter right is more properly found in the 5th Amendment.
When I left, there were no notification emails for an account being reactivated, as such, unless a friend questions you through other means about being online, you would not be aware your account was activated.
... or there's my experience. Similar to the GP poster, I disabled my account after WotLK, intending to be on hiatus until the next expansion came out. As you note, I received no notification emails. Later, when Cataclysm arrived, I went to re-activate my account, and found I had been banned for gold selling a month or two after I disabled my account.
At this point, we have only mere anecdotal evidence, but we seem to be accruing quite a bit of it, from disparate sources. And no, my machine has no malware on it, and my Blizzard password was only used for WoW.
Actually, it was the Police Commissioner saying that:
“It's one thing when providers learn what pizza or movies you like. It’s another to create a database of stops and arrests by police,” [Deputy Police Commissioner Paul Browne] said in an email statement. “On the plus side, the videos may capture images of suspects in the vicinity of a stop and be helpful to the police in that regard. Presumably, the NYCLU database will [include] the names of the videographers and provide a rich vein of potential witnesses to crimes being investigated by the NYPD and other authorities.”
Translation: we're coming after the videographers. You upload a video, expect a knock at your door from a hostile police officer, demanding to know what you saw, why you were in the area, maybe you were part of the crime, what's your alibi, mind if I look around your house, we're going to need you to come downtown and answer some questions, etc.
While some individual cop may decide to do that; my experience is that most police agencies don't have the time to waste doing that nor, in general, are even interested in doing what you say. They really do want to catch bad guys while not trampling civil rights, believe it or not. That's not to say they all are perfect or card carrying ACLU members, but they do care about following the law.
Sure, but they want to protect their own before they do any of those things. That's why, for example, the police department here in Boston fought all the way to the 1st Circuit of Appeals to protect their officers who arrested the guy filming them beating a guy in Boston Common. That's why, for example, a guy who filmed cops was arrested, beaten, and had his phone erased. That's why these people were arrested.
And most importantly, that's why the police commissioner in the article is laying the ground work for insisting that the NYCLU identify each person taking video: it's to cause a chilling effect. The police "really do want to catch bad guys," but maybe every so often, they get frustrated when a suspect isn't polite and helpful, or they get scared when they see him reach into his pocket for an ID and then realize it wasn't a weapon, but now they're angry, so they just have to beat them a little bit, y'know? And that's understandable, they're all just good men and women, laying their lives on the line every day, so they shouldn't have to be afraid that someone with a camera is going to be second guessing their decisions, right? I mean, if they have to hesitate to ask "should I really be breaking this guy's ribs with my night stick, what if someone's taping me," then that same hesitation might mean they get shot in a confrontation, right?
Hence why, yeah, the cops are going to spend time tracking down the videographers, intimidating them, and spreading the message that if you tape the cops, you're going to be harassed, arrested, possibly beaten, and then released without charges... this time.
The article alluded to the ACLU keeping the up loaders info along with the video. If that's the case, the person filming could conceivably become a witness and the video used in a court case. As was noted, that could help law enforcement (or defendant claiming police abuse) defending a stop or developing a case against someone who turned out to have committed a crime.
Actually, it was the Police Commissioner saying that:
“It's one thing when providers learn what pizza or movies you like. It’s another to create a database of stops and arrests by police,” [Deputy Police Commissioner Paul Browne] said in an email statement. “On the plus side, the videos may capture images of suspects in the vicinity of a stop and be helpful to the police in that regard. Presumably, the NYCLU database will [include] the names of the videographers and provide a rich vein of potential witnesses to crimes being investigated by the NYPD and other authorities.”
Translation: we're coming after the videographers. You upload a video, expect a knock at your door from a hostile police officer, demanding to know what you saw, why you were in the area, maybe you were part of the crime, what's your alibi, mind if I look around your house, we're going to need you to come downtown and answer some questions, etc.
I called in once to see about getting a diagnosis on a car issue. They took the info, and said they would get back if they found it interesting, but if they did, then the whole phone call would be essentially scripted. They would do (or have done) a diagnosis off air, then pretend to figure it out all in the span of a few hyena-larious moments on air.
Experts my ass.
Sorry, that's a lie. I was the assistant chief engineer for WBUR for 8 years, and I sat in on the recordings of many of their shows. I've also consulted for Car Talk, fixing their network and computers, and have stayed at one producer's house in New Hampshire.
The producers screen the calls (they get hundreds each week), but Tom and Ray know nothing about each call. They're presented with the person's name, city, and car type, and that's it.
Mind you, the recording of the show is over 2 hours, and then gets edited down, but no - the calls are not scripted, they haven't pre-diagnosed the problem, and yes, they figure it all out during the phone call. That call may be edited from 20 minutes down to 5, but it's still their first (and only) crack at the problem.
I'm not sure why you'd lie about something like this, but it's probably some sort of mean joke like your sig, because of your own personal insecurity and desire for attention. Just as I hope others don't believe this, I hope your wife sees your posts.
nope
Then the existence of the Viao does not render the patent invalid as not novel or not obvious, by definition.
but if suggested that i put 2 books in front of you and one has sharp corners and the other had rounded corners, you'd say one or both should be patented?
Was I allowed to do any prior art searching or consider other art, or is that the sole extent of what was in front of me?
If so, again, by definition, both would be patentable.
Lack of novelty and obviousness are quasi-judicial determinations, and therefore are subject to the constitutional requirements of due process... meaning they must be supported by evidence. One cannot simply look at a laptop and say, without evidence, that it shouldn't be patentable, any more than one can look at a defendant say say, without evidence, that they're guilty of murder.
"The Examiner looked at the Vaio and properly determined that this design was different and not obvious in view of it."
then the Examiner is a fucking arse...
So, you're saying that if I put the Viao and the Macbook Air on a table in front of you without booting them, you'd honestly think I set down two Viaos or two Macbook Airs?
And, uh, a company's own products can't be 'prior art'...
Not true:
35 USC 102: A person shall be entitled to a patent unless —
(b)the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States
That applies even if the description, public use, or sale was by the inventor. It's to keep people from selling a product for years, waiting until a competitor appears, and only then filing an application.
http://www.weblogsinc.com/common/images/7032616626194684.JPG?0.3942647363857573
Enough said.
From the patent:
Page 2, "OTHER PUBLICATIONS":
Sony Viao X505, available at least as early as May 8, 2005
The Examiner looked at the Vaio and properly determined that this design was different and not obvious in view of it.
letting the consumer/market decide? Isn't this what capitalism is about, the consumers choose based on price, quality, features etc...
Yes, and what design patents are about is protecting your particular design aesthetic and brand so that consumers can make that choice. If you went into a store and saw two identical bottles of soda labeled Coke, but one was really by Pepsi, wouldn't that seem to be intentionally confusing to try to mislead you into buying their product? Similarly, if you see two iPhones, but one was really a Galaxy, wouldn't that seem to be intentionally confusing to try to mislead you into buying Samsung's product? That's what this is really about. And though I'm sure you're a savvy consumer who would notice the differences, we're interested in protecting the entire consumer base, and not just those who aren't easily misled.
In oil spills, the oil floats on top of the wate, not the other way around. How can this help clean up oil spills?
If you read the summary, you'd learn that these things stride on the border between the oil and water, not between the oil and air - they're in the perfect place to clean up the oil.
If you clicked on the link, you could have even just looked at the picture. Then you wouldn't have had to read anything. Slashdot Posters: Lowering Expectations Daily.
The only odd part is that when accused infringers take this preemptive shot, they usually don't do it in the Eastern District of Texas. It's actually one of the reasons to file first when someone hints at a lawsuit - you get to choose where to go.
I was under the impression that U.S. law was still unsettled regarding the ability to patent software.
But if that were true, I would have expected at least *one* patent lawsuit in recent years make headlines by claiming that software patents were invalid, and getting a ruling on that issue.
Anyone know where we're at with this?
The Supreme Court has implied that software patents are valid, if they're not directed to an abstract idea. In some contexts, that can mean that they transform matter from one state to another, in others it can mean that they're tied to a machine. In still others... well, we don't know. That's where we're at.
Basically, they're tiptoeing around, trying to figure out how to say what they really want to say, which is that patent claims can't be valid if you can infringe them purely by thinking, because that creates a thoughtcrime. It's like back when they said that you can't get a patent on a law of nature, such as E=MC^2, or A=GM/r^2: what they never came right out and said, but seems to be hinted at by all sorts of decisions, is that if you could, you could get an injunction to make people stop being bound by gravity, or not use energy, or whatnot - or, rather, that you could require every person in the world to pay you royalties. Similarly, if you got a patent on thinking that 2+2=4, or realizing that an elevated level of compound A indicates a patient has disease B, then you could force someone to pay royalties simply for thinking. It's the old "don't think of a pink elephant... too late." So, currently, they want to see some affirmative actions, performed by a machine at the direction of a user, in the patent claims. You can't infringe just by thinking, you actually have to take some steps.
This says nothing about novelty (35 USC 102) or obviousness (35 USC 103). Those are different statutes... The above is just about whether a claimed process - even the most novel, nonobvious process in the history of the universe - is patent eligible or not.
Most university departments are true research organisations, and they *don't* seek patents.
This may be true for your local community college, but it's not true for any university with an engineering or science program. Harvard, MIT, USC, Standford, Johns Hopkins, Georgia Tech, Cornell, etc. I know, because I'm a patent attorney and have dealt with many of them and seen patents from the others.
Prior art is only one test. Novel is not sufficient, only necessary. Obviousness to a practitioner of the art should also invalidate a patent.
Respectfully, the term you're thinking of is not "prior art" but "anticipatory prior art" - it's okay, most people don't understand the distinction. Anticipatory prior art is a single reference that discloses each and every element of the claimed invention, showing that the invention is not novel. Prior art is merely anything in the art that's prior. TCP is prior art for Bittorrent. A Model T is prior art for a Hybrid SUV. Etc.
Why this is important is because there is already a second test for obviousness: a claimed invention is obvious if one or more prior art references, alone or in combination, teach or suggest each and every element of the claims. You still need to find those prior art references, though.
Why can't a practitioner in the art simply be able to look at the patent and, without any evidence or prior art references, be able to say, "it's obvious"? For the same reason a judge can't look at a defendant up for murder, and without any evidence, witnesses, or even a body, and say "he's guilty": due process. Both are judicial decisions (quasi-judicial in the case of the PTO, but it applies), and therefore, are subject to the requirements of due process: evidence supporting a conclusion, a fair right to be heard, etc.
This is a variation on layaway departments. You choose an item as a gift and the store holds it for you until later to pay for it. If you choose to not give the gift (or the recipient says they don't want it) you don't pay for it.
Unlike layaway, however, the item is delivered to the recipient. If you hadn't paid, a store's layaway department would be pretty upset.
The "unusual and nonobvious" part then has to do with a business transaction - terms of payment. IIRC business methods are out or on the way out for patents. In the real world part of this is covered by sending products C.O.D. (cash on delivery).
I think your gift recipient would be mighty pissed off if you send them a gift C.O.D.
What about kickstarter? It's the only delayed-charge system I can think of off the top of my head, and it deals with actual money instead of real/virtual objects, and the accept/receiving is done by a third party, but there's a chance it could be prior art.
It'd be tough... They were both launched in 2008, so the exact day would matter. On top of that, Kickstarter doesn't let backers withdraw their investment.
Sounds almost exactly like a Steam gift, with the minor exception that the payment wouldn't be up front.
That's in the patent claims, though, so to invalidate the patent, you have to find another reference that includes that bit.
Determining whether the gift has been accepted, re-sending to another person, even allowing the recipient to "forward" it to someone else or outright decline it is all part of Steam.
Those are actually only in dependent claims. This patent rises or falls on the fact that the gift giver isn't charged until after the recipient has accepted, and the gift giver can cancel the gift prior to acceptance ance is never charged.
It also means that if Steam doesn't do that, then Steam doesn't infringe.
PayPal have a payment option called "gift" which is a payment method not intended for purchasing items as the sender cannot file a "item not received" type complaint against the recipient to get the money back.
Important distinctions. As you note, with PayPal, you pay first, the recipient declines and the sender can file an item not received complaint and get a refund. That's the opposite of the patent, which recites:
determining whether the gift has been accepted using the access mechanism; when the determination is that the gift has not been accepted, enabling the giver to cancel the gift such that no payment is processed; and when the determination is that the gift has been accepted, initiating payment by a payment mechanism associated with the giver.
In the patent, the gift giver is not billed until the recipient accepts... and the gift giver can cancel prior to the recipient accepting the gift, and they're never billed. There's no refund process required.
PayPal isn't anticipatory prior art, but it also doesn't infringe.
Steam uses gifting, as does gamersgate. So prior art already exists.
Contrary to the Slashdot assertion, this is not a patent on "gifting". This is a patent on a gifting system that doesn't bill the gift giver until the gift is accepted, and allows the giver to cancel the gift if the recipient has not accepted it in time. Steam and Gamersgate (as well as the Wii Store, iTunes, etc.) all charge the giver immediately. Not only are they not anticipatory prior art, they also don't infringe.
Giving gifts to others is something people have done for thousands of years. Doing the same thing electronically? No different, unless there is some ingenious new mechanism being used. -------- If that isn't the case, this patent is worth nothing, and will likely be overturned at the first opportunity.
If you checked TFA, you'd find that even the article notes that there's an unusual twist here... the gift giver can cancel the gift if the recipient has not accepted it, and is not charged. Most systems require the gift giver to pay first, and if the recipient refuses, they'd have to get a refund, at best.
Nintendo has had this service for years. You've been able to send games as gifts on Wii Shop Channel for quite a while., when the released the console, if not shortly after. Actually, I just checked, and the patent was filed September 30, 2008, which was well after the release of the Nintendo Wii, and Wikipedia states that the gift feature was introduced on December 10, 2007. Well before the patent was filed. This isn't some kind of prior art that nobody knew about. This is something very obvious that the patent office should have seen as a reason to reject the patent.
Did Nintendo's gift feature not bill you until the recipient accepted the game, or would it allow you to cancel the gift if it hadn't been redeemed? Or, more likely, did it bill you immediately and deliver the game?
If the latter, then it's not anticipatory prior art. The claims of this patent explicitly require:
determining whether the gift has been accepted using the access mechanism; when the determination is that the gift has not been accepted, enabling the giver to cancel the gift such that no payment is processed; and when the determination is that the gift has been accepted, initiating payment by a payment mechanism associated with the giver.
There is one unusual twist: The patent describes the ability for the giver to delay payment until the recipient has accepted the digital gift, or cancel the order (and avoid payment) if the gift hasn’t been accepted and downloaded by the recipient after a certain period of time.
The FA goes on to say:
However, rest of the patent describes ideas that will seem less than novel to most people who use the Internet.
... and, so what? If the patent describes something unusual and nonobvious, then the fact that it also describes computers, or the Internet, or TCP, or anything else is irrelevant, provided the patent claims - the only part with any legal weight - recite that unusual, nonobvious bit.
Here's the method claim:
16. A computer-implemented method to enable selection of an electronically transferrable item that is electronically deliverable from a network resource to be presented as a gift, the computer-implemented method comprising:
obtaining a selection of an electronically transferrable item that is electronically deliverable from a network resource to be presented as a gift to a recipient from a giver;
generating a gift notification to be presented to the recipient, wherein the gift notification includes an access mechanism to enable the recipient to accept the gift as a one-time delivery without requiring the recipient to hold an account with the network resource;
determining whether the gift has been accepted using the access mechanism;
when the determination is that the gift has not been accepted, enabling the giver to cancel the gift such that no payment is processed; and
when the determination is that the gift has been accepted, initiating payment by a payment mechanism associated with the giver.
Those last two steps are that "unusual twist" that the article admits is in there.
Incidentally, if you want to invalidate a patent by showing sufficient prior art exists, you have to show prior art exists for each and every claim element. Not that gifts exist, or that Christmas exists, or that something with a similar title or abstract exists. To invalidate this patent, you need to find a reference, published or in use prior to Sept. 30, 2008, that enabled a giver to cancel a gift if the gift has not been accepted, or would initiate payment if the gift had been accepted. Most systems would bill first, deliver second, and if the recipient declined, you had a long fight for a refund ahead of you.
Tell me something, between Christianity and Islam, which one of the two has committed nearly 19,000 terrorist attacks since 9/11? I'll give you a hint, it's not Christianity.
Well, it's not Islam either, because like Christian, Islam is a religion, and abstract ideas like religions can't commit any physical actions, much less "19,000 terrorist attacks". Maybe you meant followers of one religion vs. another? But then, even that starts begging the questions of how do you define a "terrorist" attack, whether the followers committing the attacks are doing them in the name of their religion or not, how representative the followers are of the religion by percentage, etc. One man's terrorist attack is another man's insurrection against a heavily-armed invader: for example, is hiding behind walls waiting for troops from an occupying force to cross a bridge and then popping up to catch them in a cross-fire ambush a terrorist attack? Or is it the actions of Revolutionary Minutemen against the British army?
No, you have your head in the sand. Read the Qu'ran sometime and some of the other Islamic writings. They demand that Muslims emulate Mohammed, and they go into great excited detail about how Mohammed massacred people who mocked him.
Mind you, the same is true of the Old Testament and Yahweh.