The lesson here: If you're being sued in a US court and you're not a US company, ignore it because you won't have to pay for it. And the US company will still have to pay it's lawyers while looking idiotic.
This is bad advice. If you are being sued, you should consult with an attorney to determine what you should do. Doing nothing may very well be the best course of action, depending on the situation. But you shouldn't assume that you won't have to pay. A sufficiently motivated plaintiff can seek out foreign counsel to argue the case for enforcing the foreign judgment. The plaintiff may face an uphill battle (assuming you bother to show up when the fight has been brought to your front door), but it is possible that the foreign judgment will be enforced. Enforcement of Judgments.
I can see only one thing that was not in HeapCheck, but which DID exist in Electric Fence: the ability to enable heap checks at runtime, without recompilation. Electric Fence allowed one to do that via LD_PRELOAD
But this patent requires the ability to set allocaiton mode in real-time without requiring recompiling, linking, or loading. Using LD_PRELOAD to link to the Electric Fence library would still be an instance of requiring (dynamic) linking and loading. Someone else suggested that enabling/disabling application configuration settings at runtime might be an obvious modification to HeapCheck. That may be the case, but there is a difference between something that is not new (i.e., it has already been done before) and something that is obvious (i.e., it has not been done before, but it really isn't new enough).
If someone actually gets sued or is threatened by this patent, then the courts will get a chance to consider whether the Patent Office erroneously allowed the patent. Alternatively, if you want to get together with some of your buddies, you could file a request for reexamination (the filing fee is only $2,250.00, less than $23 each for 100 angry/.ers). Perhaps the Patent Office will take another look at the claims and reject them based on some insight that you provide.
The first option is to simply contact IBM and ask them how their patent is novel or different or disjoint from your work.
A similar option is to look at the patent prosecution history in Public PAIR. Get through the CAPTCHA, click on the Image File Wrapper tab, and look at the rejections, amendments, responses, etc.
It looks like the Tsiodras reference was used by the Examiner to reject the patent application. What happened is that the applicants amended their claims so that they would not cover what was taught by HeapCheck 1.2. For example, the applicants state that in the HeapCheck 1.2 documentation "it clearly states that all source files that want to make use of the alternative heap memory allocation mode must be compiled to include specific header files and then linked to a specific library that will satisfy those requests (see, e.g., Section 4 'Usage')." After this argument was first made, it wasn't enough for the Examiner, who ended up rejecting the application two more times before satisfactory claim language was submitted.
The point is that IBM has already said why it thinks that they have something that is novel and nonobvious, so it is a good idea to look at what they've said before demanding that they say it all over again. More importantly, HeapCheck (version 1.2 at least) does not infringe on the patent claims. According to the documentation on the HeapCheck v1.2 web page, you have to compile support for it into the software you are creating. But the IBM patent requires that "setting the allocation mode for the process . . . is performed in real-time, and wherein the seting sets the allocation mode . .. without requiring recompiling, linking or loading of the applicaiton to set, in real-time, the allocation mode for the application."
Tsiodras could have trouble if future versions of HeapCheck included features that fall within the scope of the claimed invention, but even version 1.34 appears to require re-compilation to enable and disable the heap checking features.
Copyright infringement through file sharing isn't like having your car "copied." It's more like having your car keys copied.
Wrong. Because the "lawful exclusive right" you are talking about involves depriving the owner of the use of his car when the person who copied the keys uses it. . . . See, using the key you have copied would deprive the owner of his car for the time period that you have it.
Um...no. I was not talking about depriving the owner use of his or her car. Keeping an unauthorized copy of the owner's car keys does not deprive the owner of the ability to use the car or the original keys. What is lost is a bit more intangible: the owner's ability to control access to the car.
I'm not sure what legal doctrine would be most applicable if, for example, one were to make 1,000 unauthorized copies of someone's car keys, and then mailed them to that car owner's neighbors. However, I don't think such an act would be right (and I highly doubt it would be found lawful), even if those unauthorized copies were never used to deprive the owner of the car itself.
Ever heard of a jury? Judges don't make all the decisions on the law... for very good reason.
You are a little bit off in suggesting that jury makes some of the decisions on the law. Juries decide facts, not law. Often, the jury verdict forms will ask the jury to provide a conclusion based on applying the facts (which they jury implicitly finds) to the law (which the judge tells the jury.
The fact/law distinction is why jury instructions are often a basis for vacating a trial. If a judge gives an inaccurate description of what the obvious standard is, and the jury says that "X was obvious over the prior art," then it isn't clear that the jury made a decision that comports with the law.
Judges also perform fact finding when there are genuine disputes as to material facts. Thus, judges can decide unimportant facts without relying on the jury. Judges can also decide facts which no reasonable jury would find otherwise (although such factual questions aren't submitted to the jury to see if the jury was, in fact, reasonable).
But, juries aren't supposed to decide what the law itself is.
USPTO is already rubber stamping stupid patents a mile a minute, and now they're making it easier for even MORE crap to come out?
It's more likely that they are trying to improve the quality of examiner rejections. Consider a claim for a widget comprising component A and B. The Examiner finds component A in reference Andy, and component B in reference Bob. The examiner then says without providing any rationale that it would have been obvious to combine Andy and Bob to make the claimed widget. A weak rejection like that encourages the applicant to appeal instead of amending the claim. This is bad news, especially if the claimed widget is obvious over Andy and Bob, but the Board of Patent Appeals and Interferences or the Court of Appeals for the Federal Circuit, not having any rationale to review, didn't recognize that the claimed widget was obvious.
Or are they just making it *harder* for that crap to be shot down in court?
Well, if the Examiner rejections are stronger, then allowed claims would probably be stronger and thus harder to shoot down in court. But ultimately, the Patent Office has no say in how the courts determine whether a claimed invention is obvious or not. These guidelines aren't even enforceable through appeal with the Board of Patent Appeals and Interferences:
This 2010 KSR Guidelines Update
does not constitute substantive rule
making and hence does not have the
force and effect of law. It has been
developed as a matter of internal Office
management and is not intended to
create any right or benefit, substantive
or procedural, enforceable by any party
against the Office. Rejections will
continue to be based upon the
substantive law, and it is these
rejections that are appealable.
Consequently, any failure by Office
personnel to follow this 2010 KSR
Guidelines Update is neither appealable
nor petitionable.
A patent practitioner could use these new guidelines to try to persuade an examiner (or that examiner's supervisor) that a rejection wasn't good. But, if the practitioner is unconvincing, then there may not be much that the practitioner can do based solely on these guidelines.
How on earth does a company like Apple seem to think they can steal someone's idea and get away with it?
How do you know they stole the idea? Independent invention is possible. If the iControlPad creators had filed for a U.S. patent, there is a good chance that they would be engaged in interference proceedings to determine who has the right to the patent.
In the United States, an inventor has twelve months after an invention becomes known to file for a patent. The fact that Apple filed for the patent after iControlPad became known doesn't mean anything by itself. What matters is whether Apple's employees were the first inventors (based on factors such as conception date and diligence in reducing the invention to practice).
So how about we just not allow Steve Jobs to hold any Apple stock?
Nothing I said suggests that Steve Jobs should not be allowed to hold any Apple stock. Apple shareholders should benefit if the fortunes of Steve Jobs' are tied with their own. However, as an officer and director of Apple, Steve Jobs cannot act on proprietary knowledge in his purchases/sales of Apple stock. He is also required to notify the SEC of changes in his ownership of Apple stock. Feel free to peruse his filings.
Who else here thinks both this and non-violent drug use should be NON CRIMES because in either case there is no victim and no injury?
You think that there are no victims and no injuries caused by insider trading? How about the people at the other end of those trades? What about the former shareholder who sold stock early, not having had access to information showing that the stock was undervalued? Or how about the new shareholder who did not have the information to know that the stock was overvalued? Those who have access to proprietary information, or who are in a position to manipulate the value of an organization, have a fiduciary duty of loyalty to shareholders. Insider trading violates that duty and is a subtle, but very real, method of stealing from them. For another perspective, click here.
It seems to me that is a different thing than the original statement, "Attorney's eyes only". . . . "Attorney's eyes only" either means what it says, or it does not.
I can't disagree with you there. What the original poster didn't mention is that "Attorneys' eyes only" means what the protective order says "Attorneys' eyes only" means. You have to look to the protective order itself to see what exceptions exist to allow outside experts to view the material.
9. For purposes of this Protective Order, a consultant or expert shall be defined as a person who is neither an employee, agent or representative of a party, nor anticipated to become an employee, agent or representative of a party in the near future, who is not involved in the application or prosecution of patents for the party, and who is retained or employed to assist in the preparation for trial in this litigation, whether full or part time, by or at the direction of counsel for a party. The procedure for having a consultant or expert approved for access to confidential material designated as CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order shalI be as follows:
a. Outside counsel for the receiving party shall (1) provide the consultant or
expert with a copy of this Protective Order, (2) explain its terns, and (3) obtain the
written agreement of the consultant or expert, in the form of Exhibit A hereto, to comply
with and be bound by the terms of this Protective Order. Before providing information
designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE by a producing party pursuant to this Protective Order to a consultant or expert, the party seeking to disclose the information to a consultant or cxpert shall identify the consultant or expert to the producing party in writing and provide the producing party with (a) an executed Exhibit A, and (b) a written statement setting forth the consultant's or expert's residence address, business address, employer, job title, curriculum vitae, and past or present association with any party, as well as a list of litigation matters for which
the consultant or expert has provided any professional services during the preceding five
years;
b. Five (5) court days following the identification specified in the preceding subparagraph, the identifying party may disclose the information designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order to the identified consultant or expert unless the party receives a
written objection to the identification, served by facsimile or electronic mail, setting forth in detail the grounds on which it is based. Failure to object within five (5) days of the
identification shall be deemed a waiver of the objection. If an identifying party receives
such an objection within five (5) days of the identification, the consultant or expert shall
be barred from access to any information designated CONFIDENTIAL, HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL -
ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order for
fourteen (14) calendar days commencing with the receipt by the producing party of a
copy of the executed Exhibit A and accompanying information required in subparagraph
(a) above;
c. If within fourteen (14) calendar days, the parties are unable to resolve their
differences and the opposing party moves for a further protective order preventing
disclosure of information designated CONFIDENTIAL, H
And having a bunch of attorneys reading a bunch of source code is a great way to get a really definitive and correct interpretation of the ramifications and effects of that source code.
One of the nice things about the U.S. is that our law schools are graduate schools with no pre-law undergraduate requirements. That means that many U.S. lawyers have an education in math, biology, physics, medicine, computer science, electrical engineering, etc. Thus, it is possible to find a lawyer who really can read and understand source code.
But even when a firm has a lawyer with the right background and experience, it is common to hire an expert to provide support (and possibly testify on findings). Professors with relevant expertise, but without a stake in the outcome of the case, are typically brought in to fill this role.
Even better (at least from the perspective of whoever wants to understand some bit of code, especially code that says "/* you're not expected to understand this */"), the organization itself can be deposed under FRCP Rule 30(b)(6). The lawyers provide notice to the organization that it is being deposed in order to explain the workings of various pieces of source code. The organization then has to provide people who can explain the workings of the identified pieces of code.
Of course, it still helps to have a lawyer who knows enough technology to be able to ask the right questions and who can understand the answers (or know when the answers are obtuse). Otherwise, you could end up with an six hour explanation of how a linked-list works.
Just like a software developer can provide a detailed critique of the Criminal Code and the Income Tax Act...
You don't have to be a lawyer to read statutes and cases and have an opinion regarding the law. Statutes and cases have their own vocabulary and historical nuances that can lead to some opinions being misguided (e.g., tax protestors who argue that income tax is unconstitutional or illegal are severely misguided). But, a lot of policy implications can be readily understood and fairly critiqued, at a surprisingly detailed level. Legal nuances can also be learned without committing to three years of general legal study. I once had a fascinating conversation with a software developer who, in the course of expressing his views on criminal punishment, unwittingly outlined many of the principles behind the United States Federal Sentencing (advisory) Guidelines.
Actually, you should have stuck with hire a lawyer. Apparently knowing about the patents you infringe upon makes your situation worse. So apparently you are better off not looking at existing patents.
It is becoming more difficult for plaintiffs to establish willful infringement. Searching patents and reviewing their abstracts is unlikely to rise to the level of willfulness (unlike, say, ignoring a letter, sent by certified mail, that says "we think you may be infrining patent XXX for reasons A, B, and C" ). Willfulness is especially unlikey to be an issue if the patents are prioritized and one seeks legal analysis for those that seem most relevant.
Instead of looking at active patents and trying to find if a new product infringes on any of them, one could look at expired patents (along with books, articles, papers, etc.) to show that nearly everything in the new product is based on knowledge already in the public domain. Not only would this likely help in trying to invalidate claims, it would show a lack of willfulness.
Alternatively, the product developer could try to find third-party component suppliers to provide the non-core pieces. If the third-party component supplier indemnifies the product developer (which they really should), then damages can be shifted away. Even if damages aren't shifted away, the fact that someone else created the infringing pieces would make it difficult to show willfulness.
As soon as you do away with translations, it is kind of hard to achieve the "public notice" function of patents in each of the applicable countries, eh?
I'm not suggesting that any country do away with a translation requirement. I'm just pointing out that it is one of those costs that adds up really quickly. It's also one of those things that would be a significant barrier to a highly harmonized international patent system.
One possible compromise would be to allow patent applicants to submit translations of only the claims. But that doesn't work out too well given that the meaning of claims often can't be determined without reading the specification (e.g., if a claim includes something like "means for X" or if the applicant especially defined a claim term in the specification).
All those national phase entry fees add up. But yes, PCT is already a pretty good system. Not sure what more cooperation we could ask for or expect. Maybe the JPO can issue Office Actions in English? (j/k)
It's not just the fees either. Getting patent practitioners who are authorized, and competent, to file at all the national stages has to be a nightmare too. And don't forget translation costs! Google Translate isn't going to cut it.
- No more than 7 years on a patent. No extensions. No exceptions.
Seven years from filing or from issue? It makes a difference. Currently the terms are up to 20 years from filing, but only if the patent holder pays all of the maintenance fees (currently $980 3 years after patent grant, $2,480 7.5 years after grant, and $4,110 11.5 years after grant). The only "extensions" currently available are those that the patent holder gets under certain circumstances when the government is somehow at fault for the delay (e.g., a special extension for pharmaceuticals that can't be marketed until they get through the long FDA approval process, or extensions for when the PTO examiners reject claims, but the rejections are reversed on appeal).
- No patenting of algorithms
Abstract algorithms already aren't patentable. Get away from the abstract and into the nitty-gritty of application and patent law becomes a lot more interesting. Keep an eye on Bilski v. Doll if you want to see where the line on patentability is going to fall.
- Patents to be awarded to individuals only, not companies
Patents are not awarded to companies in the United States. They are awarded to individual inventors. The inventors can assign their patent rights to companies, which arguably gives the company owners and managers an additional incentive to hire inventors.
Then you send them a cease and desist order as provided for by the FDCPA (fair debt collection practices act). If they are stupid enough to continue collection efforts after receiving it then you file suit against them in Federal court and collect $1,000 for each violation. They'll soon stop calling you when they realize that each phone call is going to cost them a thousand bucks.
That really can be effective. My household kept receiving calls from one collection agency that had our phone number (nothing to do with SSNs, identity theft, etc., but still annoying, especially since it was usually an automated call). For whatever reason, they kept calling even after we told them that the person they were looking for no longer used our number. So, I mailed off a FDCPA Sec. 805(c) demand that they cease communication with us.
The next time they called (with a real person fortunately for them), I pointed out that I had sent a written demand that they stop calling and that their call was in violation of the FDCPA. I didn't have to be mean...the calls stopped cold.
I don't have the time to read through all those treaties, but I doubt it would apply. The EU's current stance on software patents is, that it'S against it. So I don't think US software patents are worth anything here.
The EU's stance on software patents doesn't matter. US software patents are not worth anything outside of the US, period. For that matter, patents outside of the US aren't worth anything in the US.
Patent rights aren't recognized worldwide like copyright. You have to apply for them (and have them granted) in every country in which you seek protection). Various treaties helps smooth out the process of seeking international protection, but it is costly do so, thus most patent applicants focus on obtaining protection in key target markets.
EU customers probably don't need to be too worried. It looks like this i4i patent application was only used to obtain protection in the United States and Canada.
Ah I see. Selective law enforcement. Pardon me, I had forgotten.
No...patent scope. Notepad, older versions of Word, etc. don't have technologies built into them that could be considered infringing. If they did, then those that pre-dated the invention could have been used as prior art to invalidate the patent (Microsoft in fact had argued unsuccessfully that a bookmarking feature in a previous version of Word anticipated the i4i patent).
You can't effectively talk about a patent's scope without looking at the patent claims. An alternative technology may be used to accomplish the same goal as a claimed invention, but not have all the limitations of the claims and therefore not infringe. In talking about notepad, hex editors, etc., as being able to create custom XML, the scope of the i4i patent is being ignored. Arguing that these editors are now infringing makes as much sense as saying that notepad is an HTML editor. Yes, you can edit HTML files in notepad, but there is a difference between a text editor that treats HTML files the same as any other text file and an HTML editor that is programmed with HTML-aware features.
:) No. It is a PDF. Of course, there is a good chance that it was originally drafted in Word (although the judge probably did not use the CustomXML features at issue in this case).
I can create custom XML with any text editor. i4i, whether they realise it or not, have just completely destroyed the proprietary software industry in one fell swoop.
I think you may be overreacting a bit. Whether the patent is valid or not (an appellate decision might prove that it is not), it certainly isn't as broad in scope as you are suggesting. Microsoft may end up having to remove some infrequently used functionality from Word, but the software industry as we know it is not going to come to an end because of this injunction.
The courts just don't have a clue. They do not realise the implications of this decision. Multi-billion dollar implications. The death of an entire industry implications. Lawyers will never understand science and should stop pretending they do. The DNA thing is another example, I have been telling them that for years.
Before characterizing the courts as completely clueless, you might want to go through the court's memorandum opinion and order (PACER registration required, but no cost for this document) denying Microsoft's motion for judgment as a matter of law. It is a detailed memorandum (65 pages, double-spaced, 12-pt font) that gives quite a bit of detail as to why the judge decided to uphold the jury's verdict. Go through it and decide for yourself whether the evidence and arguments presented by Microsoft were so convincing that no reasonably jury would have found for i4i.
The law has no place in science. None. To paraphrase a great Canadian: The law has no place in the laboratories of the nation.
Cute, but seriously, take a closer look at what the real issues are in this case. If you don't try to understand the facts that drive a particular case, your arguments regarding the law and the way courts apply it will sound more like pseudoscience than science. Good science is based on facts. Good legal arguments are based on facts too.
It would depend on the state and the intent of the mail. Wills have traditionally required a lot of formalities to be effective (e.g., signatures of the testator and witnesses) with some interesting exceptions (e.g., the "holographic" will, a will written *entirely* in the hand of the testator). Many states have loosened up on the formalities though, but the document would still need to be a clear expression of the intent of the deceased.
Plus, there could be some confusion if the document promised one thing, but another document promised something conflicting. Which one takes precedent? Would courts decide based on when the documents were created or when they were intended to be delivered?
Another thing to consider is that these messages to be sent after death would probably be easier to obtain during lawsuit discovery than a will. A will written with an attorney's assistant may be a privileged document. If subpoenaed, The Last Messages Club may (or may not) fight to protect messages not yet delivered from discovery. But courts are less likely to protect such messages from disclosure than a will (although, perhaps various courts will agree to in camera review, meaning that the judge looks at the document first to decide whether it is relevant to the litigation at hand).
One last thing to consider: your message might produce evidence that could lead to a lawsuit against your estate, and thus hold up your assets. The Last Messages Club could mitigate this problem by allowing your messages to be put on hold for a number of years after receiving proof of your death. This could help ensure that your estate has been disbursed and increase the probability of a statute of limitations being hit.
As is, The Last Messages Club should probably be used to send those personal messages that don't have any real legal implications. If you want to write a will, hire a lawyer and do it right, don't try to do it yourself with a somewhat gimicky service.
The line is thin, but I guess if different agencies or companies want to spy on people, they won't tell us in advance anyway.
You would think that putting cameras, microphones, wireless connection technologies, and autoupgrade technologies into laptops, cellphones, etc., would be more likely to give people the heebie-jeebies than a few accelerometers and other abuse-sensing devices. Is Apple going to use sensors in your iPod to tell if you take it jogging?
Problems could arise in case the "abuse detection" device malfunctions and falsely report abuse by the consumer.
You could probably reduce the number of problems by using multiple systems and only voiding the warranty if there are multiple detections of abuse. Or the impact of false reports could be reduced by only using the technologies to void warranties for customers who repeatedly return abused equipment.
One potential feature of abuse-detection technology would be that the vindication of the 0.001% or so of customers who, without fault, are unlucky enough to repeatedly get equipment that breaks. Instead of treating these customers with suspicion, Apple can continue to accept returns from them or even offer them compensation, content that they are not rewarding customers who refuse to take care of their purchases.
I know that's what the article said, but I'm sure there must have been at least some evaluation of the child. That's what I'm interested in, how badly "addicted" these kids are. (Of course, money involved, I wouldn't be surprised if they didn't do any evaluation at all...)
I would be suprised if there was any evaluation. Asian parents tend to relate their own happiness with the success of their children. If a child spends a lot of time playing video games, then that can appear to be a threat to the success of the child, which makes the parents unhappy.
As for this "camp" . . . they are probably just in it for the money and would probably take any child parents send their way. Even if they do some kind of "evaluation," I'm guessing it is pretty cursory; something to try to confirm the fears of the parents that their child is doomed to a cheetos-filled, sexless life in the basement if they don't pony up the yuan.
I'm unfamiliar with the laws in China regarding how someone gets sent to one of these camps, but I'm sure you probably have serious issues if you end up in one. The problem is that most Internet addicts (the kind who are reading my post right now, instead of working *glare* ) are socially inept -- throwing them into the meat grinder is only going to make them go further into their shell.
The article was pretty clear how the kid was sent to the camp: his parents paid about $1,024 to the camp for one month of "training" for their child. This wasn't a state action. It was a private action.
The PRC government has plenty of problems, but you shouldn't blame every thing that happens in China on the government. China is a huge nation, with a huge population. Things are a no more simplestic there than they are in the rest of the world.
Slashdot Mirror
This is bad advice. If you are being sued, you should consult with an attorney to determine what you should do. Doing nothing may very well be the best course of action, depending on the situation. But you shouldn't assume that you won't have to pay. A sufficiently motivated plaintiff can seek out foreign counsel to argue the case for enforcing the foreign judgment. The plaintiff may face an uphill battle (assuming you bother to show up when the fight has been brought to your front door), but it is possible that the foreign judgment will be enforced. Enforcement of Judgments.
But this patent requires the ability to set allocaiton mode in real-time without requiring recompiling, linking, or loading. Using LD_PRELOAD to link to the Electric Fence library would still be an instance of requiring (dynamic) linking and loading. Someone else suggested that enabling/disabling application configuration settings at runtime might be an obvious modification to HeapCheck. That may be the case, but there is a difference between something that is not new (i.e., it has already been done before) and something that is obvious (i.e., it has not been done before, but it really isn't new enough).
If someone actually gets sued or is threatened by this patent, then the courts will get a chance to consider whether the Patent Office erroneously allowed the patent. Alternatively, if you want to get together with some of your buddies, you could file a request for reexamination (the filing fee is only $2,250.00, less than $23 each for 100 angry /.ers). Perhaps the Patent Office will take another look at the claims and reject them based on some insight that you provide.
The first option is to simply contact IBM and ask them how their patent is novel or different or disjoint from your work.
A similar option is to look at the patent prosecution history in Public PAIR. Get through the CAPTCHA, click on the Image File Wrapper tab, and look at the rejections, amendments, responses, etc.
It looks like the Tsiodras reference was used by the Examiner to reject the patent application. What happened is that the applicants amended their claims so that they would not cover what was taught by HeapCheck 1.2. For example, the applicants state that in the HeapCheck 1.2 documentation "it clearly states that all source files that want to make use of the alternative heap memory allocation mode must be compiled to include specific header files and then linked to a specific library that will satisfy those requests (see, e.g., Section 4 'Usage')." After this argument was first made, it wasn't enough for the Examiner, who ended up rejecting the application two more times before satisfactory claim language was submitted.
The point is that IBM has already said why it thinks that they have something that is novel and nonobvious, so it is a good idea to look at what they've said before demanding that they say it all over again. More importantly, HeapCheck (version 1.2 at least) does not infringe on the patent claims. According to the documentation on the HeapCheck v1.2 web page, you have to compile support for it into the software you are creating. But the IBM patent requires that "setting the allocation mode for the process . . . is performed in real-time, and wherein the seting sets the allocation mode . . . without requiring recompiling, linking or loading of the applicaiton to set, in real-time, the allocation mode for the application."
Tsiodras could have trouble if future versions of HeapCheck included features that fall within the scope of the claimed invention, but even version 1.34 appears to require re-compilation to enable and disable the heap checking features.
Copyright infringement through file sharing isn't like having your car "copied." It's more like having your car keys copied.
Wrong. Because the "lawful exclusive right" you are talking about involves depriving the owner of the use of his car when the person who copied the keys uses it. . . . See, using the key you have copied would deprive the owner of his car for the time period that you have it.
Um...no. I was not talking about depriving the owner use of his or her car. Keeping an unauthorized copy of the owner's car keys does not deprive the owner of the ability to use the car or the original keys. What is lost is a bit more intangible: the owner's ability to control access to the car.
I'm not sure what legal doctrine would be most applicable if, for example, one were to make 1,000 unauthorized copies of someone's car keys, and then mailed them to that car owner's neighbors. However, I don't think such an act would be right (and I highly doubt it would be found lawful), even if those unauthorized copies were never used to deprive the owner of the car itself.
Ever heard of a jury? Judges don't make all the decisions on the law... for very good reason.
You are a little bit off in suggesting that jury makes some of the decisions on the law. Juries decide facts, not law. Often, the jury verdict forms will ask the jury to provide a conclusion based on applying the facts (which they jury implicitly finds) to the law (which the judge tells the jury.
The fact/law distinction is why jury instructions are often a basis for vacating a trial. If a judge gives an inaccurate description of what the obvious standard is, and the jury says that "X was obvious over the prior art," then it isn't clear that the jury made a decision that comports with the law.
Judges also perform fact finding when there are genuine disputes as to material facts. Thus, judges can decide unimportant facts without relying on the jury. Judges can also decide facts which no reasonable jury would find otherwise (although such factual questions aren't submitted to the jury to see if the jury was, in fact, reasonable).
But, juries aren't supposed to decide what the law itself is.
USPTO is already rubber stamping stupid patents a mile a minute, and now they're making it easier for even MORE crap to come out?
It's more likely that they are trying to improve the quality of examiner rejections. Consider a claim for a widget comprising component A and B. The Examiner finds component A in reference Andy, and component B in reference Bob. The examiner then says without providing any rationale that it would have been obvious to combine Andy and Bob to make the claimed widget. A weak rejection like that encourages the applicant to appeal instead of amending the claim. This is bad news, especially if the claimed widget is obvious over Andy and Bob, but the Board of Patent Appeals and Interferences or the Court of Appeals for the Federal Circuit, not having any rationale to review, didn't recognize that the claimed widget was obvious.
Or are they just making it *harder* for that crap to be shot down in court?
Well, if the Examiner rejections are stronger, then allowed claims would probably be stronger and thus harder to shoot down in court. But ultimately, the Patent Office has no say in how the courts determine whether a claimed invention is obvious or not. These guidelines aren't even enforceable through appeal with the Board of Patent Appeals and Interferences:
This 2010 KSR Guidelines Update does not constitute substantive rule making and hence does not have the force and effect of law. It has been developed as a matter of internal Office management and is not intended to create any right or benefit, substantive or procedural, enforceable by any party against the Office. Rejections will continue to be based upon the substantive law, and it is these rejections that are appealable. Consequently, any failure by Office personnel to follow this 2010 KSR Guidelines Update is neither appealable nor petitionable.
A patent practitioner could use these new guidelines to try to persuade an examiner (or that examiner's supervisor) that a rejection wasn't good. But, if the practitioner is unconvincing, then there may not be much that the practitioner can do based solely on these guidelines.
How do you know they stole the idea? Independent invention is possible. If the iControlPad creators had filed for a U.S. patent, there is a good chance that they would be engaged in interference proceedings to determine who has the right to the patent.
In the United States, an inventor has twelve months after an invention becomes known to file for a patent. The fact that Apple filed for the patent after iControlPad became known doesn't mean anything by itself. What matters is whether Apple's employees were the first inventors (based on factors such as conception date and diligence in reducing the invention to practice).
Nothing I said suggests that Steve Jobs should not be allowed to hold any Apple stock. Apple shareholders should benefit if the fortunes of Steve Jobs' are tied with their own. However, as an officer and director of Apple, Steve Jobs cannot act on proprietary knowledge in his purchases/sales of Apple stock. He is also required to notify the SEC of changes in his ownership of Apple stock. Feel free to peruse his filings.
You think that there are no victims and no injuries caused by insider trading? How about the people at the other end of those trades? What about the former shareholder who sold stock early, not having had access to information showing that the stock was undervalued? Or how about the new shareholder who did not have the information to know that the stock was overvalued? Those who have access to proprietary information, or who are in a position to manipulate the value of an organization, have a fiduciary duty of loyalty to shareholders. Insider trading violates that duty and is a subtle, but very real, method of stealing from them. For another perspective, click here.
I can't disagree with you there. What the original poster didn't mention is that "Attorneys' eyes only" means what the protective order says "Attorneys' eyes only" means. You have to look to the protective order itself to see what exceptions exist to allow outside experts to view the material.
In this case, the exception is found in paragraph 9 of the protective order (PACER access required; the cost for the document is $1.92 - goes to $0 if you don't download $10 worth of documents by the end of the year):
9. For purposes of this Protective Order, a consultant or expert shall be defined as a person who is neither an employee, agent or representative of a party, nor anticipated to become an employee, agent or representative of a party in the near future, who is not involved in the application or prosecution of patents for the party, and who is retained or employed to assist in the preparation for trial in this litigation, whether full or part time, by or at the direction of counsel for a party. The procedure for having a consultant or expert approved for access to confidential material designated as CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order shalI be as follows:
a. Outside counsel for the receiving party shall (1) provide the consultant or expert with a copy of this Protective Order, (2) explain its terns, and (3) obtain the written agreement of the consultant or expert, in the form of Exhibit A hereto, to comply with and be bound by the terms of this Protective Order. Before providing information designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE by a producing party pursuant to this Protective Order to a consultant or expert, the party seeking to disclose the information to a consultant or cxpert shall identify the consultant or expert to the producing party in writing and provide the producing party with (a) an executed Exhibit A, and (b) a written statement setting forth the consultant's or expert's residence address, business address, employer, job title, curriculum vitae, and past or present association with any party, as well as a list of litigation matters for which the consultant or expert has provided any professional services during the preceding five years;
b. Five (5) court days following the identification specified in the preceding subparagraph, the identifying party may disclose the information designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order to the identified consultant or expert unless the party receives a written objection to the identification, served by facsimile or electronic mail, setting forth in detail the grounds on which it is based. Failure to object within five (5) days of the identification shall be deemed a waiver of the objection. If an identifying party receives such an objection within five (5) days of the identification, the consultant or expert shall be barred from access to any information designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order for fourteen (14) calendar days commencing with the receipt by the producing party of a copy of the executed Exhibit A and accompanying information required in subparagraph (a) above;
c. If within fourteen (14) calendar days, the parties are unable to resolve their differences and the opposing party moves for a further protective order preventing disclosure of information designated CONFIDENTIAL, H
They are allowed to review the source code. But they have to abide by the protective order too.
One of the nice things about the U.S. is that our law schools are graduate schools with no pre-law undergraduate requirements. That means that many U.S. lawyers have an education in math, biology, physics, medicine, computer science, electrical engineering, etc. Thus, it is possible to find a lawyer who really can read and understand source code.
But even when a firm has a lawyer with the right background and experience, it is common to hire an expert to provide support (and possibly testify on findings). Professors with relevant expertise, but without a stake in the outcome of the case, are typically brought in to fill this role.
Even better (at least from the perspective of whoever wants to understand some bit of code, especially code that says "/* you're not expected to understand this */"), the organization itself can be deposed under FRCP Rule 30(b)(6). The lawyers provide notice to the organization that it is being deposed in order to explain the workings of various pieces of source code. The organization then has to provide people who can explain the workings of the identified pieces of code.
Of course, it still helps to have a lawyer who knows enough technology to be able to ask the right questions and who can understand the answers (or know when the answers are obtuse). Otherwise, you could end up with an six hour explanation of how a linked-list works.
You don't have to be a lawyer to read statutes and cases and have an opinion regarding the law. Statutes and cases have their own vocabulary and historical nuances that can lead to some opinions being misguided (e.g., tax protestors who argue that income tax is unconstitutional or illegal are severely misguided). But, a lot of policy implications can be readily understood and fairly critiqued, at a surprisingly detailed level. Legal nuances can also be learned without committing to three years of general legal study. I once had a fascinating conversation with a software developer who, in the course of expressing his views on criminal punishment, unwittingly outlined many of the principles behind the United States Federal Sentencing (advisory) Guidelines.
It is becoming more difficult for plaintiffs to establish willful infringement. Searching patents and reviewing their abstracts is unlikely to rise to the level of willfulness (unlike, say, ignoring a letter, sent by certified mail, that says "we think you may be infrining patent XXX for reasons A, B, and C" ). Willfulness is especially unlikey to be an issue if the patents are prioritized and one seeks legal analysis for those that seem most relevant.
Instead of looking at active patents and trying to find if a new product infringes on any of them, one could look at expired patents (along with books, articles, papers, etc.) to show that nearly everything in the new product is based on knowledge already in the public domain. Not only would this likely help in trying to invalidate claims, it would show a lack of willfulness.
Alternatively, the product developer could try to find third-party component suppliers to provide the non-core pieces. If the third-party component supplier indemnifies the product developer (which they really should), then damages can be shifted away. Even if damages aren't shifted away, the fact that someone else created the infringing pieces would make it difficult to show willfulness.
I'm not suggesting that any country do away with a translation requirement. I'm just pointing out that it is one of those costs that adds up really quickly. It's also one of those things that would be a significant barrier to a highly harmonized international patent system.
One possible compromise would be to allow patent applicants to submit translations of only the claims. But that doesn't work out too well given that the meaning of claims often can't be determined without reading the specification (e.g., if a claim includes something like "means for X" or if the applicant especially defined a claim term in the specification).
It's not just the fees either. Getting patent practitioners who are authorized, and competent, to file at all the national stages has to be a nightmare too. And don't forget translation costs! Google Translate isn't going to cut it.
Seven years from filing or from issue? It makes a difference. Currently the terms are up to 20 years from filing, but only if the patent holder pays all of the maintenance fees (currently $980 3 years after patent grant, $2,480 7.5 years after grant, and $4,110 11.5 years after grant). The only "extensions" currently available are those that the patent holder gets under certain circumstances when the government is somehow at fault for the delay (e.g., a special extension for pharmaceuticals that can't be marketed until they get through the long FDA approval process, or extensions for when the PTO examiners reject claims, but the rejections are reversed on appeal).
Abstract algorithms already aren't patentable. Get away from the abstract and into the nitty-gritty of application and patent law becomes a lot more interesting. Keep an eye on Bilski v. Doll if you want to see where the line on patentability is going to fall.
Patents are not awarded to companies in the United States. They are awarded to individual inventors. The inventors can assign their patent rights to companies, which arguably gives the company owners and managers an additional incentive to hire inventors.
That really can be effective. My household kept receiving calls from one collection agency that had our phone number (nothing to do with SSNs, identity theft, etc., but still annoying, especially since it was usually an automated call). For whatever reason, they kept calling even after we told them that the person they were looking for no longer used our number. So, I mailed off a FDCPA Sec. 805(c) demand that they cease communication with us.
The next time they called (with a real person fortunately for them), I pointed out that I had sent a written demand that they stop calling and that their call was in violation of the FDCPA. I didn't have to be mean...the calls stopped cold.
The EU's stance on software patents doesn't matter. US software patents are not worth anything outside of the US, period. For that matter, patents outside of the US aren't worth anything in the US.
Patent rights aren't recognized worldwide like copyright. You have to apply for them (and have them granted) in every country in which you seek protection). Various treaties helps smooth out the process of seeking international protection, but it is costly do so, thus most patent applicants focus on obtaining protection in key target markets.
EU customers probably don't need to be too worried. It looks like this i4i patent application was only used to obtain protection in the United States and Canada.
No...patent scope. Notepad, older versions of Word, etc. don't have technologies built into them that could be considered infringing. If they did, then those that pre-dated the invention could have been used as prior art to invalidate the patent (Microsoft in fact had argued unsuccessfully that a bookmarking feature in a previous version of Word anticipated the i4i patent).
You can't effectively talk about a patent's scope without looking at the patent claims. An alternative technology may be used to accomplish the same goal as a claimed invention, but not have all the limitations of the claims and therefore not infringe. In talking about notepad, hex editors, etc., as being able to create custom XML, the scope of the i4i patent is being ignored. Arguing that these editors are now infringing makes as much sense as saying that notepad is an HTML editor. Yes, you can edit HTML files in notepad, but there is a difference between a text editor that treats HTML files the same as any other text file and an HTML editor that is programmed with HTML-aware features.
:) No. It is a PDF. Of course, there is a good chance that it was originally drafted in Word (although the judge probably did not use the CustomXML features at issue in this case).
I think you may be overreacting a bit. Whether the patent is valid or not (an appellate decision might prove that it is not), it certainly isn't as broad in scope as you are suggesting. Microsoft may end up having to remove some infrequently used functionality from Word, but the software industry as we know it is not going to come to an end because of this injunction.
Before characterizing the courts as completely clueless, you might want to go through the court's memorandum opinion and order (PACER registration required, but no cost for this document) denying Microsoft's motion for judgment as a matter of law. It is a detailed memorandum (65 pages, double-spaced, 12-pt font) that gives quite a bit of detail as to why the judge decided to uphold the jury's verdict. Go through it and decide for yourself whether the evidence and arguments presented by Microsoft were so convincing that no reasonably jury would have found for i4i.
Cute, but seriously, take a closer look at what the real issues are in this case. If you don't try to understand the facts that drive a particular case, your arguments regarding the law and the way courts apply it will sound more like pseudoscience than science. Good science is based on facts. Good legal arguments are based on facts too.
It would depend on the state and the intent of the mail. Wills have traditionally required a lot of formalities to be effective (e.g., signatures of the testator and witnesses) with some interesting exceptions (e.g., the "holographic" will, a will written *entirely* in the hand of the testator). Many states have loosened up on the formalities though, but the document would still need to be a clear expression of the intent of the deceased.
Plus, there could be some confusion if the document promised one thing, but another document promised something conflicting. Which one takes precedent? Would courts decide based on when the documents were created or when they were intended to be delivered?
Another thing to consider is that these messages to be sent after death would probably be easier to obtain during lawsuit discovery than a will. A will written with an attorney's assistant may be a privileged document. If subpoenaed, The Last Messages Club may (or may not) fight to protect messages not yet delivered from discovery. But courts are less likely to protect such messages from disclosure than a will (although, perhaps various courts will agree to in camera review, meaning that the judge looks at the document first to decide whether it is relevant to the litigation at hand).
One last thing to consider: your message might produce evidence that could lead to a lawsuit against your estate, and thus hold up your assets. The Last Messages Club could mitigate this problem by allowing your messages to be put on hold for a number of years after receiving proof of your death. This could help ensure that your estate has been disbursed and increase the probability of a statute of limitations being hit.
As is, The Last Messages Club should probably be used to send those personal messages that don't have any real legal implications. If you want to write a will, hire a lawyer and do it right, don't try to do it yourself with a somewhat gimicky service.
You would think that putting cameras, microphones, wireless connection technologies, and autoupgrade technologies into laptops, cellphones, etc., would be more likely to give people the heebie-jeebies than a few accelerometers and other abuse-sensing devices. Is Apple going to use sensors in your iPod to tell if you take it jogging?
You could probably reduce the number of problems by using multiple systems and only voiding the warranty if there are multiple detections of abuse. Or the impact of false reports could be reduced by only using the technologies to void warranties for customers who repeatedly return abused equipment.
One potential feature of abuse-detection technology would be that the vindication of the 0.001% or so of customers who, without fault, are unlucky enough to repeatedly get equipment that breaks. Instead of treating these customers with suspicion, Apple can continue to accept returns from them or even offer them compensation, content that they are not rewarding customers who refuse to take care of their purchases.
I would be suprised if there was any evaluation. Asian parents tend to relate their own happiness with the success of their children. If a child spends a lot of time playing video games, then that can appear to be a threat to the success of the child, which makes the parents unhappy.
As for this "camp" . . . they are probably just in it for the money and would probably take any child parents send their way. Even if they do some kind of "evaluation," I'm guessing it is pretty cursory; something to try to confirm the fears of the parents that their child is doomed to a cheetos-filled, sexless life in the basement if they don't pony up the yuan.
The article was pretty clear how the kid was sent to the camp: his parents paid about $1,024 to the camp for one month of "training" for their child. This wasn't a state action. It was a private action.
The PRC government has plenty of problems, but you shouldn't blame every thing that happens in China on the government. China is a huge nation, with a huge population. Things are a no more simplestic there than they are in the rest of the world.