I am in fact a practicing lawyer. And unless New York Times v. Sullivan was overruled recently without my knowledge, the First Amendment to the US Constitution does limit private actions for damages based on defamation. I also call to your attention Gertz v. Robert Welch, Inc. And considering the ample precedent holding otherwise, it is simply false to assert, as you do, that "[t]he First Amendment only deals with prior restraint."
The question is not whether the Constitution gives one a right to say bad things about people with impunity, for it has never been held to do so, and I know of no serious argument that it does. The question is whether a person may be liable for a true statement that injures another's reputation. I have not researched the question directly, but such liability seems at first thought to be inconsistent with the holding in Gertz that state law may not impose strict liability for defamatory falsehoods that injure an individual. If you know of a contrary authority, I'd love to hear of it.
I'm not sure why this didn't come up previously, although I can guess. But the reason would *not* be one or both parties' decision that a higher court would be a better place to raise the issue. The reason is that (with a few exceptions), you can't raise an issue on appeal that you didn't raise at trial.
This may make more sense if you put it in the context of the courts' function--or at least what *they* consider their function to be. Federal courts in the US don't see their primary job to be deciding questions of law; they see it to be deciding disputes, which necessarily includes deciding questions of law. So an appellate court isn't going to want to be the first one to address a legal question relevant to the case; that's too much like deciding an abstract legal question. Instead, they want it to be considered first at the trial level, because that's where the parties can best work out what the question really is and how it really matters to the case.
Not if (1) there's no controlling precedent and (2) neither party brings it up. Courts rarely introduce new legal questions on their own, and appellate courts rarely consider questions that the parties didn't raise at trial. If Staples didn't raise this issue, then neither party briefed it. And if neither party briefed it, the First Circuit wasn't going to consider it, again, unless there were already clear, binding precedent from the Supreme Court.
And if there had been such precedent, Staples would certainly have raised it at the beginning, in a motion to dismiss, before it spent all this money getting to summary judgment.
It is incorrect to say that truth is an absolute defense to a claim of libel. Apparently, Massachusetts law allows a suit to go ahead based on defamatory statements that are based on "actual malice."
Possibly Massachusetts law is incompatible with the US Constitution in this regard. I am inclined to believe it is. But Staples never brought it up--if they had, the panel would have mentioned it in at least one their opinions, and the court didn't.
In other words, the First Amendment question simply didn't come up. The sole question was what Massachusetts law was, not whether that law was consistent with the Constitution.
Doubtless the point will be made that NewsBusters is a strongly partisan site, and this is true. Fortunately, though, they aren't asking anyone to take their word for it, instead posting a recording of Holder himself.
While the Bush administration has certainly been no friend of free speech, I am not sure why anyone thinks that Democratic politicians and administrations have been better. For example, when Janet Reno was AG under Clinton, she warned the TV networks to clean up their shows, or the government would do it for them. Influential voices on the left call (unsuccessfully for the most part, it must be recognized) for censorship of various things on various grounds.
The point here is not that one party is great and the other is terrible, but that neither major party is committed in principle to individual freedom, including freedom of expression. Believing otherwise is a dangerous but widespread error.
The claims may be hard to understand, but the part that precedes it--the disclosure--is less so. And it has to be detailed enough to enable a person having ordinary skill in the art to practice the invention. The connection between the two is that the claimed subject matter is supposed to be a subset of the subject matter disclosed elsewhere.
USENET has by and large been taken over by the spammers and trolls, but it may be a viable way to publish: after all, Google does index it through Google Groups. It's publicly available, indexed, and even has evidence (some, at least) of publication date.
You can see information about any U.S. patent or published patent application using Public PAIR at the Patent Electronic Business Center, which is on the PTO's Web site at http://portal.uspto.gov/external/portal/pair/. From there, you can search for application number 90/007,946, which is the serial number assigned to the reexamination proceeding.
Once you see the main page for the patent, select the tab reading "Image File Wrapper". This will give you a list of every document that has been filed in the reexam. You can view and download everything except those items listed as "NPL Documents," which are Non-Patent Literature Documentsthey are references that aren't other patents or applications and are often protected by copyright.
The PTO conducts its business in writing. Normal decisions from a patent examiner are documents called "Office Actions". In this case, the Office Action is actually listed as "Determination -- Reexam Ordered," which was dated May 12, 2006. Page 2 of the decision (which is page 4 of the PDF) is where you'll find a mention of the "single action" thing.
Now, the obligation is not precisely to submit every document that could be relevant. Rather, the applicant and counsel must disclose every reference that they know about. The distinction is that there is no obligation to search for prior art. That's why you don't necessarily get an Everest of documents.
Now, my guess is that someone was searching for something else and stumbled across the Norm! site. Maybe one of the patent lawyers at Fenwick is a big Cheers fan and was looking for fan sites. Having found the Norm! site, maybe he or she thought, "Hey, wouldn't it be funny if Norm could one-click a beer? Hm. Oh, crap."
Whatever the case, having found it, and thinking that it might be material, they had to submit it.
Please consider my other comment to this parent. I did find it, and then I posted it.
Things often turn out to be relevant during patent prosecution for reasons that the face of the patent or application does not make apparent. Fortunately, the entire patent file is available through the Patent Office's web site. Again, if you look at the Office Action that grants the request for reexamination, one issue is prior disclosure of buying something through a single action.
Do you think that the Cheers excerpts on the Norm! page illustrate someone buying something through a single action? If not, do you think that, at least, there's a non-frivolous argument that it does?
The question before me was not whether Amazon had a strong argument for its one-click patent. The question was whether the Norm! document was conceivably relevant to the subject matter of that patent. I suggested one reason it might be relevant. Do you believe that my suggestion was irrational?
Or here's an idea: it's not the navigation that's relevant, it's the content. In the majority of excerpts, Norm walks into cheers, is recognized, and, with a single action, buys a beer that is then delivered to him. It's not quite the same as one-click Web ordering, but I can see how it's relevant, especially considering the Office Action that granted the request for reexamination.
I suspect that you have not read the patent application file. If I am correct, then I doubt that you have much basis for saying what is and is not obviously irrelevant.
For what it's worth, Amazon's high-priced law firm really has no way to win. If they omit something from their Information Disclosure Statement, they can expect to hear the argument that they intentionally left out something material and that the patent therefore should be therefore be invalidated. If they include it, they can expect to hear the argument that they tried to bury relevant prior art in a mountain of documents.
Admittedly I know very little about this particular reexam, but the Norm! page is not obviously irrelevant. It's on the Web, it probably has some kind of navigation feature that someone compared to some aspect of the one-click process, and so the lawyers probably decided to include it because it's the less risky thing to do. If it's really not useful, the patent examiner can probably figure that out without too much effort.
Saying that a skilled programmer needs to understand the underlying hardware is hardly the same thing as saying that programming in Visual Basic is not "real" programming. The question is, do people who understand the hardware write, for example, better Visual Basic? In my admittedly limited experience, they do.
Conversely, a good programmer can certainly do "real" programming in Visual Basic or C# or even VBScript.
Producing results on a schedule is not necessarily the mark of a good programmer. A good programmer presumably is one who produces good results on schedule. In programming, moreover, a good result is reliable, effective, and maintainable, not just one that compiles and executes for a while before crashing.
Understanding the hardware is not all--or even most--of what you have to do to be a good programmer, of course. But I think one is hard pressed to be a good programmer without it.
Maybe it's an ironic commentary on the pointlessness of attempting rational discussion of legal philosophy in the current political climate. Then again, maybe the moderator meant to mod it -1 troll, picked the wrong menu item by mistake, and didn't notice it before hitting submit.
Well, the Bill of Rights can similarly be read not to create the rights to freedom of speech, as it says only that "Congress shall make no law . . . abridging the freedom of speech."
There were in fact debates among the founding fathers about what sorts of protections should be explicit in the Constitution and (if one were even necessary) the Bill of Rights. For example, section 9 of Article I forbids Congress to pass an ex post Facto law. Why, some argued, was this even necessary? Didn't everyone know that the government just couldn't do things like passing ex post Facto laws?
The founding generation believed in natural, inalienable rights. They likely didn't see their Constitution as creating or bestowing rights, as they likely believed that the rights weren't within their power to create or bestow. Rather, the Constitution protected rights that logically, morally, and temporally preceded it.
I personally believe in natural, inalienable rights, but I think I am in the minority in this. I also believe, however, that the U.S. Constitution is unintelligible without belief in natural, inalienable rights, and I know that I'm in the minority on that. But that's another topic.
Software and business-method patents have a long delay to first examination. An application in one of these fields, filed today, may not be examined for four years, maybe longer.
Because the patent has issued, the U.S. Patent Office's file for the corresponding patent application is available to the public and can be seen online. I took a look and, as a practicing patent lawyer, I was stunned. The PTO rejected the application only once, and allowed the claims after a trivial amendment and argument.
The patent examiner's search strategy is part of the file. The examiner appears to have looked only in databases of patent documents and only for a couple of combinations of buzzwords. The search would have missed the substance entirely because the examiner used only the terms chosen by the applicant.
If someone started waving this patent at one of my clients, I would go right to the ACM and IEEE digital libraries, and possibly drop dead of a heart attack if I didn't find anticipating prior art in less than an hour.
What is offensive is the suggestion that the coercive power of the state may legitimately be employed to force use of a particular language by private persons in their dealings with one another, regardless of the consequences. I will be blunt about this: it is in fact evil for the government of Quebec to require French-language signage, even if the alternative is the extinction of French as a living language in Quebec.
How to be consistent? One man's treasured "transparency" is another's outrageous "death of privacy". Certainly no technical distinction exists between my IMs, your IMs, and Foley's IMs. Nor is there a technical distinction between the way Foley's secrets were exposed and the way anyone else's could be exposed.
"Perhaps most revealingly, transgenic mice with this gene incorporated into their genomes have been found to habitually scratch patterns on the floors of their cages that strongly resemble engineering blueprints for a flamethrower."
As a practicing patent lawyer, I assure you that the U.S. Patent Office does not get most of its revenue from allowing patents. It gets most of its revenue from the late fees it charges if you file documents after their due dates.
Seriously, though, you can look up the PTO's fee schedule yourself. The schedule shows that the issue and maintenance fees can total about $8,400 over the life of a patent. On the other hand, at current rates, the application that led to the patent we're now discussing would cost almost $10,000 just to file, long before you even got to that point. (Plus the $450 late fee for filing the declaration two months late.)
Slashdot Mirror
You should suggest that they adopt an orphan from Bangalore.
I am in fact a practicing lawyer. And unless New York Times v. Sullivan was overruled recently without my knowledge, the First Amendment to the US Constitution does limit private actions for damages based on defamation. I also call to your attention Gertz v. Robert Welch, Inc. And considering the ample precedent holding otherwise, it is simply false to assert, as you do, that "[t]he First Amendment only deals with prior restraint."
The question is not whether the Constitution gives one a right to say bad things about people with impunity, for it has never been held to do so, and I know of no serious argument that it does. The question is whether a person may be liable for a true statement that injures another's reputation. I have not researched the question directly, but such liability seems at first thought to be inconsistent with the holding in Gertz that state law may not impose strict liability for defamatory falsehoods that injure an individual. If you know of a contrary authority, I'd love to hear of it.
I'm not sure why this didn't come up previously, although I can guess. But the reason would *not* be one or both parties' decision that a higher court would be a better place to raise the issue. The reason is that (with a few exceptions), you can't raise an issue on appeal that you didn't raise at trial.
This may make more sense if you put it in the context of the courts' function--or at least what *they* consider their function to be. Federal courts in the US don't see their primary job to be deciding questions of law; they see it to be deciding disputes, which necessarily includes deciding questions of law. So an appellate court isn't going to want to be the first one to address a legal question relevant to the case; that's too much like deciding an abstract legal question. Instead, they want it to be considered first at the trial level, because that's where the parties can best work out what the question really is and how it really matters to the case.
Not if (1) there's no controlling precedent and (2) neither party brings it up. Courts rarely introduce new legal questions on their own, and appellate courts rarely consider questions that the parties didn't raise at trial. If Staples didn't raise this issue, then neither party briefed it. And if neither party briefed it, the First Circuit wasn't going to consider it, again, unless there were already clear, binding precedent from the Supreme Court.
And if there had been such precedent, Staples would certainly have raised it at the beginning, in a motion to dismiss, before it spent all this money getting to summary judgment.
It is incorrect to say that truth is an absolute defense to a claim of libel. Apparently, Massachusetts law allows a suit to go ahead based on defamatory statements that are based on "actual malice."
Possibly Massachusetts law is incompatible with the US Constitution in this regard. I am inclined to believe it is. But Staples never brought it up--if they had, the panel would have mentioned it in at least one their opinions, and the court didn't.
In other words, the First Amendment question simply didn't come up. The sole question was what Massachusetts law was, not whether that law was consistent with the Constitution.
I, for one, welcome our new igneous overlords.
Doubtless the point will be made that NewsBusters is a strongly partisan site, and this is true. Fortunately, though, they aren't asking anyone to take their word for it, instead posting a recording of Holder himself.
While the Bush administration has certainly been no friend of free speech, I am not sure why anyone thinks that Democratic politicians and administrations have been better. For example, when Janet Reno was AG under Clinton, she warned the TV networks to clean up their shows, or the government would do it for them. Influential voices on the left call (unsuccessfully for the most part, it must be recognized) for censorship of various things on various grounds.
The point here is not that one party is great and the other is terrible, but that neither major party is committed in principle to individual freedom, including freedom of expression. Believing otherwise is a dangerous but widespread error.
The claims may be hard to understand, but the part that precedes it--the disclosure--is less so. And it has to be detailed enough to enable a person having ordinary skill in the art to practice the invention. The connection between the two is that the claimed subject matter is supposed to be a subset of the subject matter disclosed elsewhere.
USENET has by and large been taken over by the spammers and trolls, but it may be a viable way to publish: after all, Google does index it through Google Groups. It's publicly available, indexed, and even has evidence (some, at least) of publication date.
You can see information about any U.S. patent or published patent application using Public PAIR at the Patent Electronic Business Center, which is on the PTO's Web site at http://portal.uspto.gov/external/portal/pair/. From there, you can search for application number 90/007,946, which is the serial number assigned to the reexamination proceeding.
Once you see the main page for the patent, select the tab reading "Image File Wrapper". This will give you a list of every document that has been filed in the reexam. You can view and download everything except those items listed as "NPL Documents," which are Non-Patent Literature Documentsthey are references that aren't other patents or applications and are often protected by copyright.
The PTO conducts its business in writing. Normal decisions from a patent examiner are documents called "Office Actions". In this case, the Office Action is actually listed as "Determination -- Reexam Ordered," which was dated May 12, 2006. Page 2 of the decision (which is page 4 of the PDF) is where you'll find a mention of the "single action" thing.
Now, the obligation is not precisely to submit every document that could be relevant. Rather, the applicant and counsel must disclose every reference that they know about. The distinction is that there is no obligation to search for prior art. That's why you don't necessarily get an Everest of documents.
Now, my guess is that someone was searching for something else and stumbled across the Norm! site. Maybe one of the patent lawyers at Fenwick is a big Cheers fan and was looking for fan sites. Having found the Norm! site, maybe he or she thought, "Hey, wouldn't it be funny if Norm could one-click a beer? Hm. Oh, crap."
Whatever the case, having found it, and thinking that it might be material, they had to submit it.
Please consider my other comment to this parent. I did find it, and then I posted it.
Things often turn out to be relevant during patent prosecution for reasons that the face of the patent or application does not make apparent. Fortunately, the entire patent file is available through the Patent Office's web site. Again, if you look at the Office Action that grants the request for reexamination, one issue is prior disclosure of buying something through a single action.
Do you think that the Cheers excerpts on the Norm! page illustrate someone buying something through a single action? If not, do you think that, at least, there's a non-frivolous argument that it does?
The question before me was not whether Amazon had a strong argument for its one-click patent. The question was whether the Norm! document was conceivably relevant to the subject matter of that patent. I suggested one reason it might be relevant. Do you believe that my suggestion was irrational?
Or here's an idea: it's not the navigation that's relevant, it's the content. In the majority of excerpts, Norm walks into cheers, is recognized, and, with a single action, buys a beer that is then delivered to him. It's not quite the same as one-click Web ordering, but I can see how it's relevant, especially considering the Office Action that granted the request for reexamination.
I suspect that you have not read the patent application file. If I am correct, then I doubt that you have much basis for saying what is and is not obviously irrelevant.
For what it's worth, Amazon's high-priced law firm really has no way to win. If they omit something from their Information Disclosure Statement, they can expect to hear the argument that they intentionally left out something material and that the patent therefore should be therefore be invalidated. If they include it, they can expect to hear the argument that they tried to bury relevant prior art in a mountain of documents.
Admittedly I know very little about this particular reexam, but the Norm! page is not obviously irrelevant. It's on the Web, it probably has some kind of navigation feature that someone compared to some aspect of the one-click process, and so the lawyers probably decided to include it because it's the less risky thing to do. If it's really not useful, the patent examiner can probably figure that out without too much effort.
Saying that a skilled programmer needs to understand the underlying hardware is hardly the same thing as saying that programming in Visual Basic is not "real" programming. The question is, do people who understand the hardware write, for example, better Visual Basic? In my admittedly limited experience, they do.
Conversely, a good programmer can certainly do "real" programming in Visual Basic or C# or even VBScript.
Producing results on a schedule is not necessarily the mark of a good programmer. A good programmer presumably is one who produces good results on schedule. In programming, moreover, a good result is reliable, effective, and maintainable, not just one that compiles and executes for a while before crashing.
Understanding the hardware is not all--or even most--of what you have to do to be a good programmer, of course. But I think one is hard pressed to be a good programmer without it.
I've lost my car keys before, but an entire planet?!?
Maybe it's an ironic commentary on the pointlessness of attempting rational discussion of legal philosophy in the current political climate. Then again, maybe the moderator meant to mod it -1 troll, picked the wrong menu item by mistake, and didn't notice it before hitting submit.
Well, the Bill of Rights can similarly be read not to create the rights to freedom of speech, as it says only that "Congress shall make no law . . . abridging the freedom of speech."
There were in fact debates among the founding fathers about what sorts of protections should be explicit in the Constitution and (if one were even necessary) the Bill of Rights. For example, section 9 of Article I forbids Congress to pass an ex post Facto law. Why, some argued, was this even necessary? Didn't everyone know that the government just couldn't do things like passing ex post Facto laws?
The founding generation believed in natural, inalienable rights. They likely didn't see their Constitution as creating or bestowing rights, as they likely believed that the rights weren't within their power to create or bestow. Rather, the Constitution protected rights that logically, morally, and temporally preceded it.
I personally believe in natural, inalienable rights, but I think I am in the minority in this. I also believe, however, that the U.S. Constitution is unintelligible without belief in natural, inalienable rights, and I know that I'm in the minority on that. But that's another topic.
This may be true somewhere, but not in the United States. In the U.S., you infringe a patent if any claim of the patent describes what you are doing.
Software and business-method patents have a long delay to first examination. An application in one of these fields, filed today, may not be examined for four years, maybe longer.
Because the patent has issued, the U.S. Patent Office's file for the corresponding patent application is available to the public and can be seen online. I took a look and, as a practicing patent lawyer, I was stunned. The PTO rejected the application only once, and allowed the claims after a trivial amendment and argument.
The patent examiner's search strategy is part of the file. The examiner appears to have looked only in databases of patent documents and only for a couple of combinations of buzzwords. The search would have missed the substance entirely because the examiner used only the terms chosen by the applicant.
If someone started waving this patent at one of my clients, I would go right to the ACM and IEEE digital libraries, and possibly drop dead of a heart attack if I didn't find anticipating prior art in less than an hour.
What is offensive is the suggestion that the coercive power of the state may legitimately be employed to force use of a particular language by private persons in their dealings with one another, regardless of the consequences. I will be blunt about this: it is in fact evil for the government of Quebec to require French-language signage, even if the alternative is the extinction of French as a living language in Quebec.
How to be consistent? One man's treasured "transparency" is another's outrageous "death of privacy". Certainly no technical distinction exists between my IMs, your IMs, and Foley's IMs. Nor is there a technical distinction between the way Foley's secrets were exposed and the way anyone else's could be exposed.
"Perhaps most revealingly, transgenic mice with this gene incorporated into their genomes have been found to habitually scratch patterns on the floors of their cages that strongly resemble engineering blueprints for a flamethrower."
As a practicing patent lawyer, I assure you that the U.S. Patent Office does not get most of its revenue from allowing patents. It gets most of its revenue from the late fees it charges if you file documents after their due dates.
Seriously, though, you can look up the PTO's fee schedule yourself. The schedule shows that the issue and maintenance fees can total about $8,400 over the life of a patent. On the other hand, at current rates, the application that led to the patent we're now discussing would cost almost $10,000 just to file, long before you even got to that point. (Plus the $450 late fee for filing the declaration two months late.)