Just a quick question - I don't think I've read anywhere that examiners can be sued and be personally held liable for any damages resulting from the mistake. Where can I find this?
I'm not too well versed in administrative law, but I think common law agency principles and respondeat superior will govern in such a situation. And thus an aggrieved applicant may sue the Commissioner of Patents in a District Court, and not the examiner himself. The commissioner is the principal/master, and the examiner is merely an agent/servant; and since the harm will be in the ordinary course of business, the agent cannot be held liable for any of his/her mistakes.
Although the Commissioner can be sued, I don't think a judge will grant damages for failure to grant a patent where it should have been. A patent in the United States is enforceable from its effective filing date, (with a few exceptions that can modify that) so if a decision to reject is later overturned, any infringement action will grant damages calculated from that effective date. Since the patentee will be made whole from any damages it recovers from any infringers, there is no harm that the examiner caused by failing to allow.
Also - The court system is not the only way a patentability dispute can be resolved in the United States. Of course, an aggrieved applicant can sue the Commissioner of Patents in the DC circuit court, but the other route after a Final Rejection issues is to appeal to the Board of Appeals. Then, that decision can be appealed to the courts.
Likewise in the United States, the patent examiners are technical specialists in a very distinct practice area. Some may have legal training.
There's no due diligence requirement to search for prior art, but to answer the second part of your second question, applicants and their attorneys have a duty to prosecute applications with candor, good faith, and honesty. Otherwise, the patent may be invalidated for inequitable conduct.
Inequitable conduct can arise from submitting false or misleading information, misrepresenting information, and not disclosing information, and such information must be material and the conduct must be intended. So, if you knowingly apply for a patent that you know is not novel, it may be invalidated because of this.
As far as I can remember, the reason there aren't any sanctions for attorneys that fail to search for relevant prior art is expensive. The logic goes something like this: Prior art searches are expensive, because there are too many patents that may have some tangential relationship to your invention. Also, because it's so easy to forget that one search term that would have returned a result, it opens attorneys up to a lot of liability because so much is riding on a proper search. (Because of this, most prior art searches are conducted by a special patent search firm) Basically, it's too risky for attorneys to conduct one themselves, and it costs too much to hire a professional search company)
Because it's expensive, the USPTO reasoned that this would discourage inventors from patenting and disclosing their invention, and such a result would be going against the fundamental policies of having a patent system in the first place. "...promoting the progress of the useful arts and sciences..." It's basically a balance that the PTO struck between countervailing public interests.
On a different note, the abundance of prior art in this field will most likely invalidate this patent. It's not novel (102), and it seems obvious (103) in light of the technology existing in 1999.
I don't know what stage in the proceedings the parties are in, but if public outrage gets a lot of press, the Commissioner may order a re-examination. (For example, if this story somehow makes its way to the New York Times and the Commissioner comes across it) The Geek.com article expressed worry that the parties may settle because legal costs are so expensive, but we're talking about Network Solutions here. They're a big enough company with enough resources to fight this sort of thing.
I will admit my partial ignorance to the way hospitals maintain their monitoring systems and such, so I will concede your points there. However, I strongly disagree with your assessment of the American legal system.
Just because the American legal system is so screwed up that some stupid woman can successfully sue for spilling coffee on herself does not mean it's rational, morale, or right. It just means the legal system is hopelessly mired in trying to make everyone else responsible for the ignorance of the individual, and that is not right nor reasonable.
FYI: The McDonald's case was not about some "stupid woman who spilled coffee on herself." I find it "highly amusing" that some folks ignorant of the American law use that case to attack our system. These arguments usually contain an awful lot of conclusory allegations that are wholly unsupported by American Constitutional jurisprudence.
Ms. Liebeck suffered from third degree burns, and it took her over two years to recover from these injuries. McDonald's served its coffee at 180 to 190 degrees Fahrenheit, which can cause life-threatending, third-degree burns with over 2-3 seconds of contact. (Contrast this to home-brewed coffee, which is generally 135-140 degrees. What worsened the case for McDonald's was that the company knew of the scalding risk, and had a list of over 700 previous burn cases from the hot coffee. McDonald's, however, insisted at keeping the high temperature. You'll be happy to know, however, that Ms. Liebeck's compensatory damages totaled $200,000, but since she was found to be 20% negligent, it was reduced to $160,000. The jury awarded punitive damages to the tune of $2.7 million, but the judge eventually reduced it to $480,000. The jury felt that it was necessary to "punish" McDonald's because of the serious risk of harm in third degree burns, McDonald's awareness of the risk and the potential harm, and the attitude of McDonald's management in refusing to alleviate the problem. (See generally, Andrea Gerlin, How A Jury Decided That a Coffee Spill is Worth $2.9 million, Wall St. J., Sept 1, 1994, at A1.) You can't deny the fact that Ford was clearly at fault when they designed the fuel system in the Pinto, can you? Wouldn't you blame Ford if you get severely injured after the tank exploded from a mild rear-end collision? (But wait, *I* should have been driving more carefully!)
The benefit of free speech does not outweigh the individual's responsibility for their words and actions, nor does it outweigh the general public's right to be protected from the incompetance and ignorance of the few.
Actually, that's exactly not what the First Amendment of the American Constitution has been interpreted to say. "As a general matter, we... must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.'" Boos v. Barry, 485 U.S. 322, at 383. In order to preserve my right to free speech, (should there come a time when I need to exercise it) I run the risk of hearing something that offends me, angers me, or otherwise annoys me. That's the price I pay for that right.
What most people call "rights" are the privelege of being responsible members of society, and you can lose them.
Constitutional rights cannot be "lost" completely if you were not a responsible member of society. They are merely qualified and restricted, and balanced and considered with other interests. To use your prison example: "Or do you think that convicts in prisons should have the same "right" to free speech as the general public? When we're talking about restricting a prisoner's rights, it must be "rationally related to a legitimate penological interest." Turner v. Safely, 482 U.S. 78, 89-91 (1987).
Thus, the right is merely restricted, not completely taken away. Were I a prisoner, I still have the ability to write to my friends, communicate with my lawyer, etc. I obviously have not lost my Fir
You can't put an unmaintained beater car on the road, and you can't legally drive until you've demonstrated you understand the basics of safe driving. I see no reason why home and corporate users should not be required to demonstrate their ability and willingness to follow similar safety principles for the shared internet resources.
I took the liberty of reading some of the other comments that rationalize computer use licensing by attempting to draw an analogy to driver licensing. While driving may implicate a fundamental right as well (to interstate travel) but it has never been (nor will it ever be) held to as high a standard as speech. As computer use implicates more free speech rights to a greater than degree than does driving to the right to interstate travel, the analogy does not stand. There is a fundamental difference between computer use and driving - one poses an immediate danger to human life, and the other does not. Computer exploits are an annoyance, and at its worst, a waste of time. (One could argue that attacks on mission critical systems that provide life support could cause a loss of life - but what are they doing in a place where inadvertent virus propagations can access them anyway? The risk-benefit balance of placing such a system on the internet does not seem justified.) I suppose it is a waste of productivity, but the time we spend licensing everyone could be better spent beefing up our current infrastructure. If data loss is a concern, then the user/administrator should make backups. This would require the exercise of due dilligence on behalf of the user not unlike what would be required for compliance with a licensing scheme, but I can justify that because safety from data loss in the form of a virus infection is only one factor you're protecting from - risk to data from fire, earthquakes, floods is averted. But can it really be argued that computer misuse rises to the level of immediate threats to the lives of others?
The benefit of mandatory licensing does not outweigh the burden imposed on the free speech of internet users, plain and simple.
The vast majority of infections and the perpetual ping flood my firewall blocks are the result of users who don't maintain their systems, not the result of incompetant code.
Now, who's responsible for the code that made those infections possible in the first place? The user for not anticipating the programmer's mistakes? This argument essentially blames the user for the programmer's lack of foresight, incompetence, negligence, recklessness, whatever the case may be.
Perhaps we were willing to accept the risks of shoddy programming, and that's probably one of the reasons we were able to advance computer technology so much more quickly than say, automobiles. We wanted careful considerations of safety issues put into automobiles, while we wanted more features over robustness in computers. I think this reflects upon the balance we struck between safety and new features, and the kind of values we place on safety in driving and safety in computing. A licensing scheme is contrary to this balance, and misplaces our values. Is it time to change that balance? Most definitely. To do it in a way that creates inconvenience and possibly shut out millions of voices? Most definitely not.
Viruses and the holes they exploit are the responsibility of the programmers, and they are in a better position to fix these problems rather than trying to distribute the responsibility to users. While preventative maintenance on behalf of the users should be encouraged as much as possible, it should never become a pre-requisite to internet use.
It's plainly impractical, (Given the global nature of the internet, how do we go about giving one entity the responsibility to handle all of those registrations?) and it would implicate much privacy concerns.
Also, (and possibly more importantly) I think there are very important First Amendment concerns raised with a mandatory licensing scheme - The internet is a communication medium, and I'm not sure a licensing requirement will strike the correct balance between security/safe computing and free speech; In ACLU v. Reno the Supreme Court viewed the internet as a "unique and wholly new medium of worldwide human communication" and that "the interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." The Court was concerned with the CDA and its censorship of pornography, but I think the logic applies to all forms of government restrictions on internet communications. I think the court recognizes the importance of the internet and its impact on speech, and but for compelling reasons, free speech will be given more deference over restrictions that provide dubious benefits.
I don't think virus/exploit free computing is compelling quite yet, because I think I am capable enough to prevent most exploits on my computer. Whether someone else prevents it from spreading or not is irrelevant to me - only I have the ability to prevent it from attacking me. I shouldn't blame you for sending me a virus, I should blame myself for not being able to prevent it from infecting my machine
I suppose it's different when an intrusion is per se harmful to a third party (for example, when I start harming the RIAA after a virus infects my computer and starts sharing music files) but those situations should be handled on a case-by-case basis anyway.
Basically, my point is that licensing internet use is a bad idea, and possibly unconstitutional. Let's not even consider it.
I fully acknowledge and understand that file sharing is copyright infringement, and (as much as I hate to say it) the RIAA is legally entitled to recover the costs of me impeding that property right.
However, the "punishment" that they are exacting on the infringers is way too excessive.
Assuming that a CD costs from anywhere between $15.00 and $18.00, with typically 10-15 songs per CD, that's between a $1.00 and $1.80 per song that they might be earning. Based on the article's figures that a particular boy was sharing 150 songs, the collection that was shared is worth at most $270. If the court wanted to punish me by providing the RIAA with treble damages, the boy would owe them $810. This is the limit of what I would consider "reasonable."
I'm not sure whether each download of a particular song is considered an infringement, (it's difficult to say how many times each song was downloaded) or if each instance of sharing is an infringement.
Assuming that each download is an infringement, in order for the RIAA's "go away money" to be reasonable, each song would have to be downloaded 18 times. If the song was the average MP3 size of 3.5 megabytes, that's 9.4 gigabytes in uploads that this boy supposedly made.
I strongly doubt that the average user uploads that much, which is why I think this RIAA tactic is excessive, and does not fit the nature of the offense inflicted upon the RIAA. I would go as far to say that by extorting this much, the RIAA is receiving one heck of a windfall, bordering on the inequitable.
Slashdot Mirror
I'm not too well versed in administrative law, but I think common law agency principles and respondeat superior will govern in such a situation. And thus an aggrieved applicant may sue the Commissioner of Patents in a District Court, and not the examiner himself. The commissioner is the principal/master, and the examiner is merely an agent/servant; and since the harm will be in the ordinary course of business, the agent cannot be held liable for any of his/her mistakes.
Although the Commissioner can be sued, I don't think a judge will grant damages for failure to grant a patent where it should have been. A patent in the United States is enforceable from its effective filing date, (with a few exceptions that can modify that) so if a decision to reject is later overturned, any infringement action will grant damages calculated from that effective date. Since the patentee will be made whole from any damages it recovers from any infringers, there is no harm that the examiner caused by failing to allow.
Also - The court system is not the only way a patentability dispute can be resolved in the United States. Of course, an aggrieved applicant can sue the Commissioner of Patents in the DC circuit court, but the other route after a Final Rejection issues is to appeal to the Board of Appeals. Then, that decision can be appealed to the courts.
Likewise in the United States, the patent examiners are technical specialists in a very distinct practice area. Some may have legal training.
Inequitable conduct can arise from submitting false or misleading information, misrepresenting information, and not disclosing information, and such information must be material and the conduct must be intended. So, if you knowingly apply for a patent that you know is not novel, it may be invalidated because of this.
As far as I can remember, the reason there aren't any sanctions for attorneys that fail to search for relevant prior art is expensive. The logic goes something like this: Prior art searches are expensive, because there are too many patents that may have some tangential relationship to your invention. Also, because it's so easy to forget that one search term that would have returned a result, it opens attorneys up to a lot of liability because so much is riding on a proper search. (Because of this, most prior art searches are conducted by a special patent search firm) Basically, it's too risky for attorneys to conduct one themselves, and it costs too much to hire a professional search company)
Because it's expensive, the USPTO reasoned that this would discourage inventors from patenting and disclosing their invention, and such a result would be going against the fundamental policies of having a patent system in the first place. "...promoting the progress of the useful arts and sciences..." It's basically a balance that the PTO struck between countervailing public interests.
On a different note, the abundance of prior art in this field will most likely invalidate this patent. It's not novel (102), and it seems obvious (103) in light of the technology existing in 1999.
I don't know what stage in the proceedings the parties are in, but if public outrage gets a lot of press, the Commissioner may order a re-examination. (For example, if this story somehow makes its way to the New York Times and the Commissioner comes across it) The Geek.com article expressed worry that the parties may settle because legal costs are so expensive, but we're talking about Network Solutions here. They're a big enough company with enough resources to fight this sort of thing.
SampsonSimpson
Just because the American legal system is so screwed up that some stupid woman can successfully sue for spilling coffee on herself does not mean it's rational, morale, or right. It just means the legal system is hopelessly mired in trying to make everyone else responsible for the ignorance of the individual, and that is not right nor reasonable.
FYI: The McDonald's case was not about some "stupid woman who spilled coffee on herself." I find it "highly amusing" that some folks ignorant of the American law use that case to attack our system. These arguments usually contain an awful lot of conclusory allegations that are wholly unsupported by American Constitutional jurisprudence.
Ms. Liebeck suffered from third degree burns, and it took her over two years to recover from these injuries. McDonald's served its coffee at 180 to 190 degrees Fahrenheit, which can cause life-threatending, third-degree burns with over 2-3 seconds of contact. (Contrast this to home-brewed coffee, which is generally 135-140 degrees. What worsened the case for McDonald's was that the company knew of the scalding risk, and had a list of over 700 previous burn cases from the hot coffee. McDonald's, however, insisted at keeping the high temperature. You'll be happy to know, however, that Ms. Liebeck's compensatory damages totaled $200,000, but since she was found to be 20% negligent, it was reduced to $160,000. The jury awarded punitive damages to the tune of $2.7 million, but the judge eventually reduced it to $480,000. The jury felt that it was necessary to "punish" McDonald's because of the serious risk of harm in third degree burns, McDonald's awareness of the risk and the potential harm, and the attitude of McDonald's management in refusing to alleviate the problem. (See generally, Andrea Gerlin, How A Jury Decided That a Coffee Spill is Worth $2.9 million, Wall St. J., Sept 1, 1994, at A1.) You can't deny the fact that Ford was clearly at fault when they designed the fuel system in the Pinto, can you? Wouldn't you blame Ford if you get severely injured after the tank exploded from a mild rear-end collision? (But wait, *I* should have been driving more carefully!)
The benefit of free speech does not outweigh the individual's responsibility for their words and actions, nor does it outweigh the general public's right to be protected from the incompetance and ignorance of the few. Actually, that's exactly not what the First Amendment of the American Constitution has been interpreted to say. "As a general matter, we... must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.'" Boos v. Barry, 485 U.S. 322, at 383. In order to preserve my right to free speech, (should there come a time when I need to exercise it) I run the risk of hearing something that offends me, angers me, or otherwise annoys me. That's the price I pay for that right.
What most people call "rights" are the privelege of being responsible members of society, and you can lose them.
Constitutional rights cannot be "lost" completely if you were not a responsible member of society. They are merely qualified and restricted, and balanced and considered with other interests. To use your prison example: "Or do you think that convicts in prisons should have the same "right" to free speech as the general public? When we're talking about restricting a prisoner's rights, it must be "rationally related to a legitimate penological interest." Turner v. Safely, 482 U.S. 78, 89-91 (1987).
Thus, the right is merely restricted, not completely taken away. Were I a prisoner, I still have the ability to write to my friends, communicate with my lawyer, etc. I obviously have not lost my Fir
I took the liberty of reading some of the other comments that rationalize computer use licensing by attempting to draw an analogy to driver licensing. While driving may implicate a fundamental right as well (to interstate travel) but it has never been (nor will it ever be) held to as high a standard as speech. As computer use implicates more free speech rights to a greater than degree than does driving to the right to interstate travel, the analogy does not stand. There is a fundamental difference between computer use and driving - one poses an immediate danger to human life, and the other does not. Computer exploits are an annoyance, and at its worst, a waste of time. (One could argue that attacks on mission critical systems that provide life support could cause a loss of life - but what are they doing in a place where inadvertent virus propagations can access them anyway? The risk-benefit balance of placing such a system on the internet does not seem justified.) I suppose it is a waste of productivity, but the time we spend licensing everyone could be better spent beefing up our current infrastructure. If data loss is a concern, then the user/administrator should make backups. This would require the exercise of due dilligence on behalf of the user not unlike what would be required for compliance with a licensing scheme, but I can justify that because safety from data loss in the form of a virus infection is only one factor you're protecting from - risk to data from fire, earthquakes, floods is averted. But can it really be argued that computer misuse rises to the level of immediate threats to the lives of others?
The benefit of mandatory licensing does not outweigh the burden imposed on the free speech of internet users, plain and simple.
The vast majority of infections and the perpetual ping flood my firewall blocks are the result of users who don't maintain their systems, not the result of incompetant code.
Now, who's responsible for the code that made those infections possible in the first place? The user for not anticipating the programmer's mistakes? This argument essentially blames the user for the programmer's lack of foresight, incompetence, negligence, recklessness, whatever the case may be.
Perhaps we were willing to accept the risks of shoddy programming, and that's probably one of the reasons we were able to advance computer technology so much more quickly than say, automobiles. We wanted careful considerations of safety issues put into automobiles, while we wanted more features over robustness in computers. I think this reflects upon the balance we struck between safety and new features, and the kind of values we place on safety in driving and safety in computing. A licensing scheme is contrary to this balance, and misplaces our values. Is it time to change that balance? Most definitely. To do it in a way that creates inconvenience and possibly shut out millions of voices? Most definitely not.
It's plainly impractical, (Given the global nature of the internet, how do we go about giving one entity the responsibility to handle all of those registrations?) and it would implicate much privacy concerns.
Also, (and possibly more importantly) I think there are very important First Amendment concerns raised with a mandatory licensing scheme - The internet is a communication medium, and I'm not sure a licensing requirement will strike the correct balance between security/safe computing and free speech; In ACLU v. Reno the Supreme Court viewed the internet as a "unique and wholly new medium of worldwide human communication" and that "the interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." The Court was concerned with the CDA and its censorship of pornography, but I think the logic applies to all forms of government restrictions on internet communications. I think the court recognizes the importance of the internet and its impact on speech, and but for compelling reasons, free speech will be given more deference over restrictions that provide dubious benefits.
I don't think virus/exploit free computing is compelling quite yet, because I think I am capable enough to prevent most exploits on my computer. Whether someone else prevents it from spreading or not is irrelevant to me - only I have the ability to prevent it from attacking me. I shouldn't blame you for sending me a virus, I should blame myself for not being able to prevent it from infecting my machine
I suppose it's different when an intrusion is per se harmful to a third party (for example, when I start harming the RIAA after a virus infects my computer and starts sharing music files) but those situations should be handled on a case-by-case basis anyway.
Basically, my point is that licensing internet use is a bad idea, and possibly unconstitutional. Let's not even consider it.
and no, IANAL.
However, the "punishment" that they are exacting on the infringers is way too excessive.
Assuming that a CD costs from anywhere between $15.00 and $18.00, with typically 10-15 songs per CD, that's between a $1.00 and $1.80 per song that they might be earning. Based on the article's figures that a particular boy was sharing 150 songs, the collection that was shared is worth at most $270. If the court wanted to punish me by providing the RIAA with treble damages, the boy would owe them $810. This is the limit of what I would consider "reasonable."
I'm not sure whether each download of a particular song is considered an infringement, (it's difficult to say how many times each song was downloaded) or if each instance of sharing is an infringement.
Assuming that each download is an infringement, in order for the RIAA's "go away money" to be reasonable, each song would have to be downloaded 18 times. If the song was the average MP3 size of 3.5 megabytes, that's 9.4 gigabytes in uploads that this boy supposedly made.
I strongly doubt that the average user uploads that much, which is why I think this RIAA tactic is excessive, and does not fit the nature of the offense inflicted upon the RIAA. I would go as far to say that by extorting this much, the RIAA is receiving one heck of a windfall, bordering on the inequitable.
SampsonSimpson