Since "you" share identical neural hardware with all humans, and the difference between you and anyone else is encoded in a very large number of what are essentially chemical integer storage tanks, I'd rethink that one.
But that's not the issue. You're saying that an infant six weeks after conception has human "software", and should thus be treated as a human. What people are objecting to is your assumption that the "software" that infant has and the "software" you or I have is the same for purposes of ascribing rights. I don't think it is. I think that self-aware consciousness of the sort humans seem to have and animals seem to lack is the only justifiable basis for calling something sentient, and thus capable of being murdered. Now, if you want to argue that all living things with some sort of consciousness should have the same rights against being killed as you or I, that's fine, but I don't think you do.
. . . why does the liberty of so many types of victims never get a consideration in the liberal mind ? Not just babies, mind you, but women born in the wrong country, or blacks in muslim africa, or hindu, christians in Pakistan, Iran or Iraq... all are ignored by "liberals".
Apparently you've been talking to the wrong kind of liberals, because I for one do care about those peoples' rights, so long as they are in fact people. I think that the "women born in the wrong country, or blacks in muslim africa, or hindu, christians in Pakistan, Iran or Iraq" should all have the sorts of rights I enjoy, because they're all people. "Babies" who lack sentience, and have yet to leave the womb, I'm not so sure about.
It takes a unique type of idiot to lack the ability to distinguish conceptually between an embryo and a gamete
Actually, no, that distinction's not the one at issue here. He's not talking about the nature of the thing aborted, he's talking about the prevention of a potential human life. If we allow (as some pro-life types do) that embryos are not people, we might still claim that they are "potential human beings", in that they will develop into people if left to their own devices. Timmarhy's point is actually relevant to that, since a sperm cell can be considered a "potential life", that you just haven't bothered to put into contact with an egg.
By that reasoning, every moment you aren't trying actively to get your sperm into eggs, you are killing potential human beings. It's not a great argument (though it is an awesome one, especially when used as a pickup line), but it's not irrelevant.
That's interesting information regarding fetal development timing, but I'd be careful about what you mean by "sentient" here. Is a cow sentient? It has a quite well-developed nervous system, interacts with its surroundings, and will attempt to avoid being killed. Does that mean hamburger is murder? I've never seen any evidence that infants in the womb, or even recently outside of it, possess the sort of self-aware consciousness that we tend to consider uniquely human.
I'm also somewhat skeptical of your math regarding birth control, because I know too many people with active sex lives who have somehow managed to have neither abortions nor babies over the years. It might work out in theory, but in practice...not so much.
Trademark law and patent law are very different things. There's no such thing as "prior art" in trademark, because trademark isn't about rewarding innovation: it's about ensuring that consumers know what they're getting when they buy something marked with a particular brand name. A whole complicated set of rules exist for who gets to use a name that more than one party wants. I don't know whether those rules are being properly applied in this case, but whether they are or not, it's not similar to this story.
I'm not sure exactly what you're saying, but I never denied that he had the knowledge; the only relevant issue is whether he was directly involved with the prosecution of this particular patent. He may or may not have been - I don't know, but I suspect not. If that's the case, then what he knows doesn't matter. It's what the people who were directly involved knew that matters, and we don't have that information, though it does seem unlikely that no one had heard of that particular feature of Lotus Notes before.
I also seriously doubt that the examiner was fed a crafted search string by MS. It's my understanding that many examiners don't really use the general internet for their prior art searches. They've been trained to use past patents, academic papers, and industry publications, and many don't step far beyond that.
I'm not so sure it is. The press release also noted, after talking about the presumption of patentability (which is stupid, IMO) that "Thus, to reject an application the USPTO is responsible for ensuring that any evidence indicating that the invention is not new or is obvious (known as 'prior art') is identified and explaining why the invention is not patentable in view of the evidence." (Emphasis added)
Will some examiners be lazy and not search as thoroughly when they have a nice package of prior art in front of them? Probably. But that doesn't change the fact that any patent issued this way will still be vulnerable to reexamination and invalidation. While it's possible that you're right, and the USPTO is just sucking down more fees regardless of the cost in patent quality, the backlog is too big right now to afford to encourage more apps, and with the hiring freeze in place, it's not looking to get any smaller. Anyway, corporations don't want invalid patents. They want overly broad patents, sure, but they want them to be defensible enough that the cost of opposing them is enough of a barrier to make the patent worth something. If there's prior art that's really on point, somebody's eventually going to find it (i.e., this article), and all it would take would be a reexam request to get the patent sunk.
What sanctions can be brought against Ozzie if it can be shown that he withheld knowledge of prior art?
Most likely none, since it's not actually a crime. The patent would be invalidated by virtue of the inequitable conduct, though, if Ozzie was sufficiently involved to qualify for the duty of disclosure.
The duty to disclose prior art extends to everyone substantively involved in the prosecution of the patent, including those associated with the inventor or assignee. Seems to me that unless Ozzie was actively involved with the patent prosecution, he doesn't fall into this category. You're right that somebody who was should have known, though.
Where exactly has the USPTO said this? They've been pushing for a requirement that applicants submit a thorough prior art search along with their applications, but that's a very different thing from giving up searching altogether. The USPTO rejects things all the time - in fact if you listen to many practitioners, they reject things on flimsy bases more often than they should, because making people jump through more hoops fills examiners' quotas and brings in more fees.
Personally, I think that they should be rejecting more often than they are, but prior art is not the area that needs work. Prior art is always bound to fall through the cracks occasionally, and horror stories will result, but that's a result of a stupid examiner and/or a dishonest applicant, not a larger systemic issue.
I don't dispute that the government is perhaps larger than it should be, and that there's a lot of waste. However, I'd like people to use real facts in their arguments, not good-sounding stories they have no actual evidence for.
Speaking of which, I don't know what you're talking about with the $10,000 monkey wrench. The closest thing I could find was the $400 hammer, which as it turns out didn't actually cost $400.
Now, I didn't spend very long checking your facts, and maybe I missed something, and there really was such a monkey wrench, or the hammer really did cost $400. I apparently spent more time checking your facts than you did, though. We're supposed to be nerds here, and nerds care about facts, not half-remembered anecdotes. If you're going to assert something, please back it up.
There's some validity to your point, though I think you're overstating things. Larger populations with more communication and more encompassing economies require more regulation. However, instead of engaging you further on this interesting political question, I would merely like to point out that the thing about cabbage regulation is a long-time rhetorical legend with no basis in fact. Please take more care about repeating stories without checking them.
A lot of what we think of as the really bad stuff, was undertaken by the patent office on its own with neither authorization from Congress nor truly applicable court ruling, but at the direction of an ambitiously expansive director.
Hey, who woulda thunk that Triantyfyllos Tafas was a Slashdotter?
My kingdom for some mod points, for someone who keeps up with patent law. For those who don't, Tafas is suing the USPTO because they tried to implement some policies that would have made it harder to get patents. While many of the problems of the current patent system can be traced to earlier policies implemented unilaterally by the USPTO, the office has been swinging quite the other way currently, and while not all of it is traceable to Congress and the courts, they (except for the courts, recently) have only made things worse.
I know what you mean, but I can tell you this - it's been more than a few years. They've been testing it on people for (I believe) more than ten years.
I think the issue is that not *all* men like to build machines, and not *all* women want to care for people. They may tend to distribute themselves that way statistically, but that doesn't mean there aren't many on each side who feel differently.
I agree that we shouldn't try so very hard to force people into things, but the fact is that we've had a long history where people either weren't allowed to try or were shunned for trying to do a job that didn't fit their "gender role". It makes some sense to try to counteract that cultural trend. It can, of course, and often has, been taken too far.
The birth control pill is known to have an effect on some women's moods and personality. I don't think that that even comes close to an justification for feminism being basically just women on drugs. Changes in life values are not a typical result. Messing with anyone's hormones can be a problem, but it's an issue of acceptable risk and harm. Being able to control fertility is crucial the the kind of society and environment I want to live in. I think many women feel the same.
...made-up bullshit like this from the inventor does not bode well for the veracity of his other claims.
I'd cut him a little slack - I doubt English is his first language, and we don't always speak precisely. If you read the scientific papers, they do think that the mechanism works on ion exchange mechanisms in the cell membrane (I think, I not being a bio type).
The article claims that it was formerly believed that the treatment killed sperm
Not exactly - it's not a well-written article, but it's pretty clear that what was previously thought was that the pH difference was enough to explain the sperm death.
There's also no indication as to why anyone would use the substances incorporated into this stuff.
There was a plausible explanation for this in one of the papers or other, but I don't remember what it is. You can look for yourself if you're interested.
...there's the claim that it is persistent (up to ten years) and can at the same time be flushed out by irrigation with a sodium bicarbonate solution.
Why is this so implausible? If the structure of the polymer allows it to adhere to the wall of the vas, why would it be flushed? I don't believe there's any natural reason for sodium bicarbonate or DMSO to be in the vas in any significant quantity.
...no mention at all of trials to actually demonstrate its long-term, or even short-term, efficacy, which is what Phase II trials are for
That's because the wikipedia article is fairly general, and problems only arose with the Phase III trials. There's more info here. They've been studying this for a long time.
And really finally, there's the name "Sperm Under Guidance"? Under whose guidance are the sperm under, again?
I've got nothin' on this one. I blame non-native English speakers.
If you choose to look at failure rates on a per-encounter basis rather than a per-year basis, then yes, but failure rates for contraceptives are almost always put in terms of conceptions per year.
All the benefits of a male birth control pill/shot, without the hormonal side effects, at a fraction of the price. And they're pretty sure it doesn't even cause cancer!:-)
I've been following the progress of RISUG for years, and it's been incredibly frustrating. It's by far the most promising-sounding male contraceptive out there (hey, they think it might even slow the transmission of AIDS!), but the clinical trials have been held up over and over again by various bureaucratic hassles, and that's just in India, which is so far the only country with trials in place.
If they offered clinical trials in this country, I'd jump at the chance, but I'm really starting to wonder why the hell they can't get their act together. It's almost as if there's some pharmaceutical-company conspiracy that prefers the idea of regular doses of expensive hormones to a good-for-ten-years injection of cheap plastic...
Did you read your own link? That's copyright, not patent. Also, design patents protect fairly specific aesthetic aspects of the overall design, not the very general "look and feel" Apple was trying to protect.
I thought we were talking about permanent, not preliminary, injunctions here - likelihood of success isn't relevant.
The public interest very much will not favor always allowing infringement - if that were the case, then patents would themselves be against the public interest, and why the heck would we have them? In the long run, if the public kept reneging, then people wouldn't file patents.
Anyway, EBay purported to be purely about applying the four factors, and explicitly disclaimed the notion of smacking a plaintiff down simply because they're an NPE. If it's being applied that way as a categorical rule, then I disagree with that application. My concern is that some plaintiffs may be perceiving it as a categorical bar, when really it's just that their situation doesn't lend itself to a need for an injunction.
BTW, my notion of the "public interest", in this context, isn't so far away from the traditional fourth factor. All I'm saying is that if a court can reasonably say that an NPE doesn't promote innovation in the same way that PEs do, then it has every right to treat it differently under the fourth factor. I don't know whether a court can reasonably say that - maybe they can't. I don't know the statistics on that point. In any case, it would probably vary from NPE to NPE. But the question is still relevant.
A land grab that happened almost eighty years ago, though. I don't think it's an unreasonable extension of copyright law given a copyright term of reasonable length. With life + 70 it's a problem.
That's fine if you don't think the practicing status should be relevant, but the government is charged with promoting the progress of the useful arts. That being the case, and that being the sole purpose for having a patent system, it seems like any factor relevant to the public interest not explicitly excluded by law would be relevant to the balance of equities. We can fight over whether non-practicing entities have any different effect on the pace of innovation, but that's a different argument.
Based on your earlier post, however, I get the impression that you don't think patent injunctions should be subject to the balance of equities in the same way as normal injunctions. I don't think that the constitutional argument holds water, just on an interpretive basis, so I was wondering if you have more utilitarian arguments.
Slashdot Mirror
Since "you" share identical neural hardware with all humans, and the difference between you and anyone else is encoded in a very large number of what are essentially chemical integer storage tanks, I'd rethink that one.
But that's not the issue. You're saying that an infant six weeks after conception has human "software", and should thus be treated as a human. What people are objecting to is your assumption that the "software" that infant has and the "software" you or I have is the same for purposes of ascribing rights. I don't think it is. I think that self-aware consciousness of the sort humans seem to have and animals seem to lack is the only justifiable basis for calling something sentient, and thus capable of being murdered. Now, if you want to argue that all living things with some sort of consciousness should have the same rights against being killed as you or I, that's fine, but I don't think you do.
. . . why does the liberty of so many types of victims never get a consideration in the liberal mind ? Not just babies, mind you, but women born in the wrong country, or blacks in muslim africa, or hindu, christians in Pakistan, Iran or Iraq ... all are ignored by "liberals".
Apparently you've been talking to the wrong kind of liberals, because I for one do care about those peoples' rights, so long as they are in fact people. I think that the "women born in the wrong country, or blacks in muslim africa, or hindu, christians in Pakistan, Iran or Iraq" should all have the sorts of rights I enjoy, because they're all people. "Babies" who lack sentience, and have yet to leave the womb, I'm not so sure about.
It takes a unique type of idiot to lack the ability to distinguish conceptually between an embryo and a gamete
Actually, no, that distinction's not the one at issue here. He's not talking about the nature of the thing aborted, he's talking about the prevention of a potential human life. If we allow (as some pro-life types do) that embryos are not people, we might still claim that they are "potential human beings", in that they will develop into people if left to their own devices. Timmarhy's point is actually relevant to that, since a sperm cell can be considered a "potential life", that you just haven't bothered to put into contact with an egg.
By that reasoning, every moment you aren't trying actively to get your sperm into eggs, you are killing potential human beings. It's not a great argument (though it is an awesome one, especially when used as a pickup line), but it's not irrelevant.
That's interesting information regarding fetal development timing, but I'd be careful about what you mean by "sentient" here. Is a cow sentient? It has a quite well-developed nervous system, interacts with its surroundings, and will attempt to avoid being killed. Does that mean hamburger is murder? I've never seen any evidence that infants in the womb, or even recently outside of it, possess the sort of self-aware consciousness that we tend to consider uniquely human.
I'm also somewhat skeptical of your math regarding birth control, because I know too many people with active sex lives who have somehow managed to have neither abortions nor babies over the years. It might work out in theory, but in practice...not so much.
Trademark law and patent law are very different things. There's no such thing as "prior art" in trademark, because trademark isn't about rewarding innovation: it's about ensuring that consumers know what they're getting when they buy something marked with a particular brand name. A whole complicated set of rules exist for who gets to use a name that more than one party wants. I don't know whether those rules are being properly applied in this case, but whether they are or not, it's not similar to this story.
Good point - that wasn't mentioned when I learned about protests. Sneaky. They do receive them, but you're right it's not frequent.
I'm not sure exactly what you're saying, but I never denied that he had the knowledge; the only relevant issue is whether he was directly involved with the prosecution of this particular patent. He may or may not have been - I don't know, but I suspect not. If that's the case, then what he knows doesn't matter. It's what the people who were directly involved knew that matters, and we don't have that information, though it does seem unlikely that no one had heard of that particular feature of Lotus Notes before.
I also seriously doubt that the examiner was fed a crafted search string by MS. It's my understanding that many examiners don't really use the general internet for their prior art searches. They've been trained to use past patents, academic papers, and industry publications, and many don't step far beyond that.
Unfitting though it may be, it's the case. It's not so much a corporate/individual thing as it is a patent office thing.
I'm not so sure it is. The press release also noted, after talking about the presumption of patentability (which is stupid, IMO) that "Thus, to reject an application the USPTO is responsible for ensuring that any evidence indicating that the invention is not new or is obvious (known as 'prior art') is identified and explaining why the invention is not patentable in view of the evidence." (Emphasis added)
Will some examiners be lazy and not search as thoroughly when they have a nice package of prior art in front of them? Probably. But that doesn't change the fact that any patent issued this way will still be vulnerable to reexamination and invalidation. While it's possible that you're right, and the USPTO is just sucking down more fees regardless of the cost in patent quality, the backlog is too big right now to afford to encourage more apps, and with the hiring freeze in place, it's not looking to get any smaller. Anyway, corporations don't want invalid patents. They want overly broad patents, sure, but they want them to be defensible enough that the cost of opposing them is enough of a barrier to make the patent worth something. If there's prior art that's really on point, somebody's eventually going to find it (i.e., this article), and all it would take would be a reexam request to get the patent sunk.
You can already do this. it's called a "Protest"
And while there's no finder's fee, it's one of the few things you can do at the USPTO without incurring a fee. So that's something.
What sanctions can be brought against Ozzie if it can be shown that he withheld knowledge of prior art?
Most likely none, since it's not actually a crime. The patent would be invalidated by virtue of the inequitable conduct, though, if Ozzie was sufficiently involved to qualify for the duty of disclosure.
The duty to disclose prior art extends to everyone substantively involved in the prosecution of the patent, including those associated with the inventor or assignee. Seems to me that unless Ozzie was actively involved with the patent prosecution, he doesn't fall into this category. You're right that somebody who was should have known, though.
Where exactly has the USPTO said this? They've been pushing for a requirement that applicants submit a thorough prior art search along with their applications, but that's a very different thing from giving up searching altogether. The USPTO rejects things all the time - in fact if you listen to many practitioners, they reject things on flimsy bases more often than they should, because making people jump through more hoops fills examiners' quotas and brings in more fees.
Personally, I think that they should be rejecting more often than they are, but prior art is not the area that needs work. Prior art is always bound to fall through the cracks occasionally, and horror stories will result, but that's a result of a stupid examiner and/or a dishonest applicant, not a larger systemic issue.
I don't dispute that the government is perhaps larger than it should be, and that there's a lot of waste. However, I'd like people to use real facts in their arguments, not good-sounding stories they have no actual evidence for.
Speaking of which, I don't know what you're talking about with the $10,000 monkey wrench. The closest thing I could find was the $400 hammer, which as it turns out didn't actually cost $400.
Now, I didn't spend very long checking your facts, and maybe I missed something, and there really was such a monkey wrench, or the hammer really did cost $400. I apparently spent more time checking your facts than you did, though. We're supposed to be nerds here, and nerds care about facts, not half-remembered anecdotes. If you're going to assert something, please back it up.
There's some validity to your point, though I think you're overstating things. Larger populations with more communication and more encompassing economies require more regulation. However, instead of engaging you further on this interesting political question, I would merely like to point out that the thing about cabbage regulation is a long-time rhetorical legend with no basis in fact. Please take more care about repeating stories without checking them.
See Snopes for more info.
A lot of what we think of as the really bad stuff, was undertaken by the patent office on its own with neither authorization from Congress nor truly applicable court ruling, but at the direction of an ambitiously expansive director.
Hey, who woulda thunk that Triantyfyllos Tafas was a Slashdotter?
My kingdom for some mod points, for someone who keeps up with patent law. For those who don't, Tafas is suing the USPTO because they tried to implement some policies that would have made it harder to get patents. While many of the problems of the current patent system can be traced to earlier policies implemented unilaterally by the USPTO, the office has been swinging quite the other way currently, and while not all of it is traceable to Congress and the courts, they (except for the courts, recently) have only made things worse.
I know what you mean, but I can tell you this - it's been more than a few years. They've been testing it on people for (I believe) more than ten years.
I think the issue is that not *all* men like to build machines, and not *all* women want to care for people. They may tend to distribute themselves that way statistically, but that doesn't mean there aren't many on each side who feel differently.
I agree that we shouldn't try so very hard to force people into things, but the fact is that we've had a long history where people either weren't allowed to try or were shunned for trying to do a job that didn't fit their "gender role". It makes some sense to try to counteract that cultural trend. It can, of course, and often has, been taken too far.
The birth control pill is known to have an effect on some women's moods and personality. I don't think that that even comes close to an justification for feminism being basically just women on drugs. Changes in life values are not a typical result. Messing with anyone's hormones can be a problem, but it's an issue of acceptable risk and harm. Being able to control fertility is crucial the the kind of society and environment I want to live in. I think many women feel the same.
...made-up bullshit like this from the inventor does not bode well for the veracity of his other claims.
I'd cut him a little slack - I doubt English is his first language, and we don't always speak precisely. If you read the scientific papers, they do think that the mechanism works on ion exchange mechanisms in the cell membrane (I think, I not being a bio type).
The article claims that it was formerly believed that the treatment killed sperm
Not exactly - it's not a well-written article, but it's pretty clear that what was previously thought was that the pH difference was enough to explain the sperm death.
There's also no indication as to why anyone would use the substances incorporated into this stuff.
There was a plausible explanation for this in one of the papers or other, but I don't remember what it is. You can look for yourself if you're interested.
...there's the claim that it is persistent (up to ten years) and can at the same time be flushed out by irrigation with a sodium bicarbonate solution.
Why is this so implausible? If the structure of the polymer allows it to adhere to the wall of the vas, why would it be flushed? I don't believe there's any natural reason for sodium bicarbonate or DMSO to be in the vas in any significant quantity.
...no mention at all of trials to actually demonstrate its long-term, or even short-term, efficacy, which is what Phase II trials are for
That's because the wikipedia article is fairly general, and problems only arose with the Phase III trials. There's more info here. They've been studying this for a long time.
And really finally, there's the name "Sperm Under Guidance"? Under whose guidance are the sperm under, again?
I've got nothin' on this one. I blame non-native English speakers.
If you choose to look at failure rates on a per-encounter basis rather than a per-year basis, then yes, but failure rates for contraceptives are almost always put in terms of conceptions per year.
Planned Parenthood says so. Citation provided.
:-)
Birth control is far more complicated statistically than people think.
Personally, sign me up for this: RISUG
All the benefits of a male birth control pill/shot, without the hormonal side effects, at a fraction of the price. And they're pretty sure it doesn't even cause cancer!
We already have a reliable male contraceptive. It's called RISUG.
http://en.wikipedia.org/wiki/RISUG
Second that with everything I've got.
I've been following the progress of RISUG for years, and it's been incredibly frustrating. It's by far the most promising-sounding male contraceptive out there (hey, they think it might even slow the transmission of AIDS!), but the clinical trials have been held up over and over again by various bureaucratic hassles, and that's just in India, which is so far the only country with trials in place.
If they offered clinical trials in this country, I'd jump at the chance, but I'm really starting to wonder why the hell they can't get their act together. It's almost as if there's some pharmaceutical-company conspiracy that prefers the idea of regular doses of expensive hormones to a good-for-ten-years injection of cheap plastic...
Did you read your own link? That's copyright, not patent. Also, design patents protect fairly specific aesthetic aspects of the overall design, not the very general "look and feel" Apple was trying to protect.
I thought we were talking about permanent, not preliminary, injunctions here - likelihood of success isn't relevant.
The public interest very much will not favor always allowing infringement - if that were the case, then patents would themselves be against the public interest, and why the heck would we have them? In the long run, if the public kept reneging, then people wouldn't file patents.
Anyway, EBay purported to be purely about applying the four factors, and explicitly disclaimed the notion of smacking a plaintiff down simply because they're an NPE. If it's being applied that way as a categorical rule, then I disagree with that application. My concern is that some plaintiffs may be perceiving it as a categorical bar, when really it's just that their situation doesn't lend itself to a need for an injunction.
BTW, my notion of the "public interest", in this context, isn't so far away from the traditional fourth factor. All I'm saying is that if a court can reasonably say that an NPE doesn't promote innovation in the same way that PEs do, then it has every right to treat it differently under the fourth factor. I don't know whether a court can reasonably say that - maybe they can't. I don't know the statistics on that point. In any case, it would probably vary from NPE to NPE. But the question is still relevant.
A land grab that happened almost eighty years ago, though. I don't think it's an unreasonable extension of copyright law given a copyright term of reasonable length. With life + 70 it's a problem.
That's fine if you don't think the practicing status should be relevant, but the government is charged with promoting the progress of the useful arts. That being the case, and that being the sole purpose for having a patent system, it seems like any factor relevant to the public interest not explicitly excluded by law would be relevant to the balance of equities. We can fight over whether non-practicing entities have any different effect on the pace of innovation, but that's a different argument.
Based on your earlier post, however, I get the impression that you don't think patent injunctions should be subject to the balance of equities in the same way as normal injunctions. I don't think that the constitutional argument holds water, just on an interpretive basis, so I was wondering if you have more utilitarian arguments.