Anyhow, what is really missing in all of this discussion is a response from the patent submitter or the persons in charge of accepting the patent; we never get this on Slashdot nor the stories referred to. Since the patent appears to be so unbelievable, I am very curious as to what their official response would be. Perhaps some IT journalist can get one?
It's really unfair to suggest that the patent examiner responsible for allowing this patent should respond to criticisms given that the examiner's reasoning is already publicly available. Just go to the USPTO Patent Application Information Retrieval system and search for patent number 7028023. You can see what the patent examiner reviewed, what was argued, what the response was, etc.
After reading through these documents, then it is fair to argue that there was a better approach to analyzing the patent application. For example, the examiner relied heavily on the argument that this patent anticipated the claimed invention when rejecting the claims. This patent was not closely related to the claimed invention (it involves a linked list paired with an array pointing into various places in the list). A sorted double-linked list may very well have formed a better basis for an argument because it is at least more closely related. Also, the examiner did not make any obviousness claim. Perhaps it was too difficult to find some teaching or suggestion that would have made the claimed invention obvious in light of the prior art, but perhaps the examiner would have been able to find something had the examiner spent less time writing out an argument that the claimed invention was not patentable art (not because of obviousness or novelty, but because of subject matter).
You would go straight to the United States Patent and Trademark Office. To request a reexamination, fill out this form and send it in along with the ex parte reexamination fee (currently $2,520, which isn't too much if you got people or businesses to chip in) and the appropriate statements.
Don't rush off and send some text books that discuss linked lists though. If you do a search for patent number 7028023 in the Patent Application Information Retrieval system and review the history of the application (or just read the claims of the issued patent), you'll see this patent does not cover basic linked lists, that the examiner was well-aware of linked lists, and that the examiner made a solid effort to find something that fully anticipated the claims of this invention. Sending in a basic linked list reference would be a waste of time and money.
That being said, I think these claims are anticipated somewhere. Being able to traverse a set of data in different ways based on different sorting criteria is not an uncommon requirement. And I think I saw *something* that suggested keeping a list with multiple pointers that allowed sorting by various methods.
However, thinking that there is evidence of anticipation is not the same thing as producing evidence of anticipation. Showing evidence of something broader that has already been considered is not enough to defeat a patent either. If you find something solid, submit it to slashdot along with a request for PayPal donations to cover the reexamination request filing fee. If they pick up the story and if you found something stronger than the irrelevant argument of you can't patent the linked list," then I'd donate.
If you really want a notice and takedown system, why not put it in a SEPARATE law, instead of conflating that issue with making copy protection circumvention illegal.
The DMCA was really an omnibus copyright statute rather than a one- or two-issue bill. Intellectual property laws can be a pain for Congress to pass because there is always a lot of tension among the various interests (users, creators, investors). The easiest way to get something passed is to try to give something to everyone in hopes of getting support for a final compromise. Some parties got much less than they could have out of the DMCA because they were unwilling to support it (and those who passed it) no matter what they were given. Others were able to get get quite a lot by focusing on a single issue and promising support for the bill if it made it into the act. For example, the designers of boat hulls lobbied effectively and got a provision giving them new protection for their designs.
And that's exactly the problem. These DMCA takedowns are not random emails saying "oh, might want to review this file when you get a chance", but are part of a legal process. Once the notice has been sent, the material has to be taken down. The power of these notices is very large, and hence the potential for abuse is large.
If the DMCA "safe harbour" takedown procedures did not exist, then service providers might be liable for monetary damages for hosting infringing works after something as simple as one of those "random emails." The service provider would have knowledge of the potentially infringing material and potentially be liable for some form of secondary infringement (that's the theory that killed old-Napster).
The takedown procedure does not require that a service provider take down material. A service provider can ignore the takedown notice, or never even register to receive such notices. In that case, the service provider would act in the same legal world that existed before the DMCA.
A service provider in such a situation might respond much more drastically to informal, "random emails" than a service provider who is open to takedown notices. Such a service provider might police its users much more actively, possibly removing materials without even an allegation of infringement being raised.
The DMCA takedown provision just provides an option that enables service providers to be much more hands-off when it comes to user content. Service providers who use this provision can let copyright owners do their own policing (and is actually required to re-post borderline works if the users posting the material is willing to dispute the infringement claim).
It'd be interesting to know just what kind of search method was used to issue these takedown notices. Does a GREP search script have the legal authority to send a cease & desist order without human intervention? It's hard to imagine all 100,000 cases were human reviewed...
No. The takedown (and putback) procedures in the "safe harbour" provisions of the DMCA requires the takedown notice to include a "physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed," a "statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law," and a "statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed." Software cannot have a good faith belief about anything or attest to the accuracy of anything.
It is possible that someone might have a good belief that the information obtained from an automated process correctly identified infringing materials and possibly rely on such a process as the basis for a notification. But, if the use turned out to be trivial or erroneous, the person signing the statement might still open up some potential liability; especially if that person had reason to believe that the automated process was not sufficiently accurate to rely upon it (until an actual case arises, who knows whether a rate of 60 misidentifications out of 100,000 is too unreliable for someone to have a good faith belief in the process).
The point is that belief and the ability to attest to something are human activities. Technology may be leveraged to aid in forming a belief and analyzing the accuracy of data, but reporting information is not the same as saying that the information can be relied on for a specific purpose. We decide whether to rely on such information (or whether to build systems that rely on such information, again without "belief," just a reaction that ultimately must derive from human judgment).
If all it takes is a 'counter-notification' to get the content back up, why doesn't everyone just throw back a counter-notification, pending a counter-counter-notification, ad infinitum?
17 USC Sec. 512 is not worded recursively. User uploads content to system or network controlled or operated by Service Provider. Copyright Owner sends take-down notification to Service Provider alleging that content uploaded by User infringes valid copyright. At that point User can send counter-notification to Service Provider stating that material was taken down as a result of mistake (perhaps of law) or misidentification of material. Service Provider forwards a copy of the counter-notification to Copyright Owner. At this point, Copyright Owner can do nothing, in which case the material must be posted back within 10-14 business days of receipt of the counter-notification. The only way to prevent re-posting of the material is for Copyright Owner to file suit against User and to then notify Service Provider. There is no counter-counter-notification---just a lawsuit.
A quad-band GMS phone with a provider that has service worldwide could come in handy. While rates can be expensive, it may still be cheaper and more convenient than trying to get setup in each country or region that you visit.
With a little bit of additional investigative work (I clicked on the button that said "View Complete Thread" under the pthreads better than Win32 threads posting), I discovered a post that may shed some light on Mr. Breshears' change of heart:
...There is, however, some things that win32 threads did better then posix threads. The WaitForMultipleObjects allows you to decouple the signaling and waiting threads better. In posix, if some thread wants to wait on multiple conditions, there has to be a condvar especially for that and the signaling thread has to know about it. In win32, the signaling thread only has to signal the events it knows about and not have to worry about other threads waiting for mulitple events, though there still the problem of events being lossey. Also win32 threads are more orthagonal. You do not have have totally different and incompatible signaling mechanisms like unix select/poll and pthread condvars. The kludges to make those work together are incredible....
It appears that a posting my someone called Joe Seigh may have given Mr. Breshears another perspective to consider. That he was willing to change his position, rather than stretch to justify an original stance, shows some character that often is missing from those who publically express a point of view. I would not be surprised if we saw Mr. Breshears arguing sometime in the future that pthreads are better than Win32 threads---perhaps after pthreads have come out with some innovations that make them even more effective.
Don't feel bad about it now. Patent prosecution is expensive (unless you do it yourself, which for most people is a bad idea because they don't claim very many rights, and thus end up with weak patents). Feel bad a couple of years from now if this technology becomes extremely popular.
It wasn't really a stupid idea. In copyright law, independent creation is a defense to infringement. Patent law does not provide this defense. Ascertaining the better approach is definitely worthy of debate. There's even a good article recommending software patent reform through a combination of a mini-patent registration system and an independent invention defense against claims of infringement.
That posting is dated January 20th (2007 I assume). The patent's international filing date was November 9, 2006. Thus, the Slashdot posting would not anticipate the patent application. It might bolster an argument that the claimed invention is obvious, but it probably would not defeat the patent application if it was the only evidence of obviousness.
It is wonderful to hear that the PDF specification will be the subject of open standardization. Caution should be exercised when implementing products though. Almost 400 patents have been granted to Adobe. Adobe has another 50 patent applications in process. There may also be additional patents that have been assigned to Adobe or that Adobe has an exclusive license to practice. Adobe may also have intellectual property in foreign markets that are greater in scope than what Adobe has in the United States.
Caution should be exercised because ISO does not require that its standards be patent-free. Necessary patents merely must be available on a reasonable and non-discriminatory basis. Adobe (or anyone else really) may also seek patents on how PDFs are used, manipulated, etc.
This doesn't necessarily mean that Adobe is bad or that any Open Source Software projects will ever face any obstacles from Adobe. It simply means that some care should be taken to determine whether any of Adobe's patents cover features of the PDF standard or its uses, especially when developing software that mimics an existing proprietary product. If there is a question, then OSS developers should contact Adobe to try to get a license (perhaps for the consideration of a promise that the resulting product remain open source).
The best way to show scorn for a record label deserving scorn is not to listen to the songs it sells. Likewise, the best way to show scorn for a movie studio is neither purchase nor download the movies it sells. When you are listening to the music or watching the movies of entities you don't like, you're not listening to the music or watching the movies of those who you supposedly support. It's like pirating Windows: you end up taking away market share from Linux, Apple, BSD, etc. Sure, Microsoft makes less money from you, but it keeps its dominant position. When you download major label songs illegally, you take away market share from independent artists, reducing their chances of achieving the celebrity status you're helping establish for the major label artists.
This kind of activity drives the market price for movies down to nothing. The movie industry already has done much to discourage piracy. In particular, DVDs are sold at extremely low prices (with hopes of making profit based on high volume sales). But even low prices can't compete against free when quality and convenience are not at issue.
While big studios creating mass market movies can absorb much of the impact of piracy by selling large volumes to people who don't pirate movies (at least not all the time), independent movie makers are hurt by this race to the bottom. Lower movie prices make it more difficult for independents to make any profit, reducing the possibility of funding. Higher volume sales of mainstream movies fills up the time of consumers who have less reason to be choosey about they spend their money on (especially when they don't spend any money).
When justifying piracy, people ignore that their actions don't just affect the studios who they are stiffing. Their actions affect the market as a whole, promoting a culture of mass mediocracy.
After all, at one point a U.S. court even ruled that a manual for carrying out murders as a hit man was ! That ruling was overturned on appeal, and the case was settled out of court before a final decision was ever reached, but still -- given that a handbook for killing people was considered free speech by at least one court, it's a bit of a stretch to think that a DVD-copying program should be given less protection.
It is important to understand that this is not a legally pursuasive argument and to understand why it falls short. U.S. law is not about the weight of judicial opinions. Whether one court or a thousand courts have decided an issue one way means nothing legally if a higher court interprets the law in a different way. It does not matter that this case was settled out-of-court. The Appeals Court for the Fourth Circuit issued a published opinion, an interpretation of law, which is binding on all the district courts in the Fourth Circuit. The decision even binds other panels of Fourth Circuit appellate judges.
Perhaps if the lower court's decision was very well written, then it might have some pursuasive value (at least in another circuit in which the area of law is undecided). But it is nonsensical to use this case to argue that DVD-copying programs should be protected under the First Amendment because they should receive at least as much protection as manuals on killing. All that citing to this case shows is that manuals on killing are not protected by the First Amendment in the Fourth Circuit.
From TFA: "the ability of drug manufacturers to easily obtain patents for minor changes to products, or to receive patent exclusivity for new uses of existing products, have reduced incentives to develop new drugs."
TFA mischaracterized the actual report. The only place where the report uses the word "reduces" is on page 33 where it simply points out that "[s]ome experts and analysts who are critical of the pharmaceutical industry often state that the emphasis on 'me too' drugs reduces innovation" (emphasis added). Reporting on a position is not the same as endorsing it. Critics of the pharmaceutical industry can't use a report on their own criticism as evidence that their criticism is sound.
The big question is who cares whether a minor variant on a drug that produces minimal gains is patentable? When the patent on the original version expires, doctors can still prescribe the medicine and consumers can still get the original benefits. And if there is some substantial gain due to the supposedly minor change, then why shouldn't the inventor get a patent? Also, if someone finds a new way of using an existing drug, something that was non-obvious, why shouldn't patent protection exist for that new use? If it is truly new and non-obvious, no one was using it for the alternative purpose nor would others have thought to use it for the alternative purpose.
Going through the actual report would show that the GAO report goes in a different direction from saying "patents are worthless." On page 36 the report suggests linking the length of patent protection to the therapeutic value (it suggest maybe 10 years protection for drugs offering less innovative benefits and up to 30 years for drugs considered innovative).
The article, the Slashdot headline, and the article summary all got it wrong when it comes to what the GAO report really said.
One of the more entertaining protests against a set of deletions (for the topics Operation CWAL and Byeard Maggott) was an episode of The Maggott Show that criticized Wikipedia's deletion policies and the application of those policies by one of its editors. Byeard Maggott, the creator of the series, told the Wikipedia editor about the episode, starting an entertaining dialogue, during which the editor pointed out that he is called much worse things than jackass "on a regular basis by those who dislike [his] opinions on road safety issues.
They apply for a ton of expensive patents that the little players can't afford.
Are patents necessarily that expensive? Look at the current fee schedule. A basic patent would cost about $1,200 in fees. The big costs are getting a patent agent or patent attorney in to draft up the claims properly and push the patent through the USPTO. And a lot of that cost can be reduced if the patent applicant is willing to take care of the dirty work of identifying the invention and producing an enabling disclosure.
Delaying patent processing for individuals who "troll" the patent office could delay patent processing for everyone else. Applicants for United States patent have the option of keeping their patent applications secret until the patents are issued (although a patent applicant who does this, instead of allowing the patent application to be published after eighteen months, loses the right to get a patent in many countries). If an applicant for a United States patent chooses to abandon one of these applications, then the application is never made public. If the patent issues, then it is prior art from the date of filing. If it is abandoned, it is not prior art.
This causes a problem in processing additional applications that claim to have invented what was in the unpublished patent application. Either the subsequent patent applicants have to narrow their claims, without knowing what the potential prior art is, or they have to wait while the patent office sorts out the first patent application. Punishing the first patent applicant by delaying the patent processing would also punish subsequent patent applicants.
Whether the creator of the prior art could file a patent also depends on whether the patent applicant conceived of the invention before whoever conceived of the prior art. Publishing an invention does not prevent someone else who invented it first from filing a patent application. Although it is an absolute bar if the inventor does not file within 12 months.
It's worth noting that the patent application may also may disclose something more precise than the prior art---an improvement perhaps. In that case, the patent applicant would still be able to claim the improved invention, unless the improvement was obvious to one of ordinary skill in the art.
This endeavor is likely to help in more precisely defining patent claims. Patents that are peer-reviewed potentially would be narrower and stronger. This is good because it would mean less pointless and preventable litigation.
This endeavor is also good as it would increase the average level of knowledge in the software industry of what patent claims are and what they mean. This would also mean less pointless and preventable litigation because 1) more software engineers would know how to steer around existing patents and 2) fewer patent holders would threaten to sue based on narrow patents.
The article for some reason links to an unrelated decision in the wrong court. It's an interesting decision that appears to be related to the PATRIOT act, but it has nothing to do with Crater v. Lucent. The correct link is here.
The conclusions of the Wired article may be a bit far reaching, at least based on a quick reading of the decision. Crater's patent infringement claim wasn't dismissed because of the secrecy of the documents requested. Their claim was dismissed because when the United States hires a contractor to make something and the contractor infringes in the processing of fulfilling the contract, the inventor has to sue the United States, not the contractor. See 14 USC Sec. 1498(a).
Crater continued to sue Lucent on a misappropriation of trade secrets claim and a breach of contract claim, which fall under State law, not Federal law. The lower court originally dismissed the claims because the evidence to support the claims was being protected as secret information. The Federal Circuit reversed this decision, holding that the lower court has to first determine what the trade secret or breach of contract claims are precisely (evidently, at the time of the lower court's ruling, evidence had not even been introduced that there ever was a contract). Only then should the lower court analyze the requested documents to determine how they affect the claims.
Of course, if the party being sued manages to keep all the evidence secret, it could be difficult to establish a case. Of course, if they had orginally agreed to settle disputes through arbitration, they wouldn't be able to go through discovery in the first place and Crater would have had to establish a case using only information found through their own investigative efforts. At least in this case, they can force the United States to search for and redact relevant documents through FOIA requests.
Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair . . . I think google's implementation of this project very clearly falls under scholarship and/or research purposes.
All four factors of "fair use" must be taken into consideration by the courts. See Rich. And because any alleged infringement can usually be distinguished from pre-existing case law, there is no such thing as an automatic fair use because one of the factors weighs heavily in favor of the alleged infringer. Copying 300 words can be an infringement while copying an entire work may not be an infringement. See Hollaar.
Until the courts decide whether a particular activity is a fair use, the alleged infringer is legally a kind of Schrodinger's Cat. Until the courts decide, Google is in a sense both a guilty infringer and an innocent fair user. Only legally observing Google's state by trial can definitively answer the question of whether Google's acts infringe on the rights of the plaintiff authors.
Most of the comments seem to focus on the morality of what the Fuddruckers webmaster (of html-peon) did or on what Mr. Briggs did. I think I even saw a comment on how stupid Fuddruckers must be.
What I haven't seen is the suggestion that perhaps Mr. Briggs passed up a modestly lucrative opportunity to profit a bit from his originally selfless efforts. After all, it's obvious that someone at Fuddruckers liked his game. He might have been able to convince them to legally purchase the rights, or at least agree to indemnify him if the original creators of the BurgerTime game ever decided to sue Mr. Briggs based on copyright infringement. Perhaps he might have convinced them to purchase a tweaked version of the game, customized for Fuddruckkers.
Instead, he decided to make a rather malicious effort to embarrass them, poisoning any potential commercial relationship. But, the opportunity to rant and show off modest technological l33t skillz was apparently enough to offset the potential of acquiring base, material crap such as money.
Changes the current "first to invent" standard to "first to file," which means patent rights go to the first inventor to file for a patent who can provide sufficient evidence for a claimed invention.
Biggest mistake, in my opinion. . ..
"First to file" really means "first inventor to file." If A invents something, but keeps it secret, and B comes up with the same invention, B gets the patent under a first to file system. But B must be an independent inventor.
Under our current system, A can file after B has filed triggering interference proceedings. These are costly proceedings that require both parties to produce evidence of when they each conceived of the invention and evidence that they were diligent in perfecting it.
While "first to invent" sounds more fair than "first to file" in theory, the emperical evidence is that it only affects a very small number of applications (somewhere around 3000 over the last 20 years). Independent inventors also are also a little more likely to lose in an interference when they filed first than they are to win in these proceedings when they invented first. See Mossinghoff , "The U.S. First-to-Invent System has Provided No Advantage to Small Entities."
Eliminates the subjective "best mode" requirement from 112 of the Patent Act, delineating objective criteria that an inventor must set forth in an application
This seems fine to me.
Elimination of the "best mode" requirement would simplify litigation. Proving that the patent holder contemplated or did not contemplate a better embodiment of the invention can be difficult. On the other hand, elimination of this requirement could make it easier for powerful de factor standards setters to obtain narrow patents on minor changes to the software they market without disclosing particular details of their inventions. See Morgan , page 9.
Imposes a duty of candor and good faith on parties to contested cases before the patent office, eliminating inequitable conduct as a defense of patent unenforceability.
Don't know what this means exactly. Kind of scary that you'd have to legislate "duty of candor and good faith though"
One does not always have "duty of candor and good faith." In criminal proceedings, the defendant has a right to remain silent. Perjury is illegal, but the defendant does not have to admit to guilt. It is up to the prosecutor to make the case. Good faith is also difficult to prove or disprove. Objective standards are much easier to work with.
Duty of candor and good faith already exists. The difference with this bill is that the USPTO would be the sole investigator and enforcer of this duty. Currently, these issues come up in court when a patent is being litigated. It's easy to alledge but costly to defend because of substantial discovery costs.
Reduces the scope of willful infringement by raising the standard of proof required, and limits the amount of damages a patentholder can collect from an infringer
Like any damage caps, this is good and bad. Good for the little guy getting sued by MegaCorp., terrible for the little company MegaCorp. is doing patent infringement on.
This provision could be really good though because there has been a trend of patent attorneys advising companies to not have their engineers and scientists look at other patents. The legal theory, which is supported by case law, is that the employees learn of the patent and any infringement is willful because the company didn't get a legal opinion. This extreme position is plain stupid. The scientists and engineers inventing cool stuff are the ones who can quickly understand an inv
Slashdot Mirror
It's really unfair to suggest that the patent examiner responsible for allowing this patent should respond to criticisms given that the examiner's reasoning is already publicly available. Just go to the USPTO Patent Application Information Retrieval system and search for patent number 7028023. You can see what the patent examiner reviewed, what was argued, what the response was, etc.
After reading through these documents, then it is fair to argue that there was a better approach to analyzing the patent application. For example, the examiner relied heavily on the argument that this patent anticipated the claimed invention when rejecting the claims. This patent was not closely related to the claimed invention (it involves a linked list paired with an array pointing into various places in the list). A sorted double-linked list may very well have formed a better basis for an argument because it is at least more closely related. Also, the examiner did not make any obviousness claim. Perhaps it was too difficult to find some teaching or suggestion that would have made the claimed invention obvious in light of the prior art, but perhaps the examiner would have been able to find something had the examiner spent less time writing out an argument that the claimed invention was not patentable art (not because of obviousness or novelty, but because of subject matter).
You would go straight to the United States Patent and Trademark Office. To request a reexamination, fill out this form and send it in along with the ex parte reexamination fee (currently $2,520, which isn't too much if you got people or businesses to chip in) and the appropriate statements.
Don't rush off and send some text books that discuss linked lists though. If you do a search for patent number 7028023 in the Patent Application Information Retrieval system and review the history of the application (or just read the claims of the issued patent), you'll see this patent does not cover basic linked lists, that the examiner was well-aware of linked lists, and that the examiner made a solid effort to find something that fully anticipated the claims of this invention. Sending in a basic linked list reference would be a waste of time and money.
That being said, I think these claims are anticipated somewhere. Being able to traverse a set of data in different ways based on different sorting criteria is not an uncommon requirement. And I think I saw *something* that suggested keeping a list with multiple pointers that allowed sorting by various methods.
However, thinking that there is evidence of anticipation is not the same thing as producing evidence of anticipation. Showing evidence of something broader that has already been considered is not enough to defeat a patent either. If you find something solid, submit it to slashdot along with a request for PayPal donations to cover the reexamination request filing fee. If they pick up the story and if you found something stronger than the irrelevant argument of you can't patent the linked list," then I'd donate.
The DMCA was really an omnibus copyright statute rather than a one- or two-issue bill. Intellectual property laws can be a pain for Congress to pass because there is always a lot of tension among the various interests (users, creators, investors). The easiest way to get something passed is to try to give something to everyone in hopes of getting support for a final compromise. Some parties got much less than they could have out of the DMCA because they were unwilling to support it (and those who passed it) no matter what they were given. Others were able to get get quite a lot by focusing on a single issue and promising support for the bill if it made it into the act. For example, the designers of boat hulls lobbied effectively and got a provision giving them new protection for their designs.
If the DMCA "safe harbour" takedown procedures did not exist, then service providers might be liable for monetary damages for hosting infringing works after something as simple as one of those "random emails." The service provider would have knowledge of the potentially infringing material and potentially be liable for some form of secondary infringement (that's the theory that killed old-Napster).
The takedown procedure does not require that a service provider take down material. A service provider can ignore the takedown notice, or never even register to receive such notices. In that case, the service provider would act in the same legal world that existed before the DMCA.
A service provider in such a situation might respond much more drastically to informal, "random emails" than a service provider who is open to takedown notices. Such a service provider might police its users much more actively, possibly removing materials without even an allegation of infringement being raised.
The DMCA takedown provision just provides an option that enables service providers to be much more hands-off when it comes to user content. Service providers who use this provision can let copyright owners do their own policing (and is actually required to re-post borderline works if the users posting the material is willing to dispute the infringement claim).
No. The takedown (and putback) procedures in the "safe harbour" provisions of the DMCA requires the takedown notice to include a "physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed," a "statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law," and a "statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed." Software cannot have a good faith belief about anything or attest to the accuracy of anything.
It is possible that someone might have a good belief that the information obtained from an automated process correctly identified infringing materials and possibly rely on such a process as the basis for a notification. But, if the use turned out to be trivial or erroneous, the person signing the statement might still open up some potential liability; especially if that person had reason to believe that the automated process was not sufficiently accurate to rely upon it (until an actual case arises, who knows whether a rate of 60 misidentifications out of 100,000 is too unreliable for someone to have a good faith belief in the process).
The point is that belief and the ability to attest to something are human activities. Technology may be leveraged to aid in forming a belief and analyzing the accuracy of data, but reporting information is not the same as saying that the information can be relied on for a specific purpose. We decide whether to rely on such information (or whether to build systems that rely on such information, again without "belief," just a reaction that ultimately must derive from human judgment).
Still, contrast this with the European Union's takedown procedures, laid out in Directive 2000/31/EC, Article 14(b), which limits the liability of a provider who "upon obtaining... knowledge or awareness [of illegal activity or information], acts expeditiously to remove or to disable access to the information." As one blogger put it, "the main difference between the U.S. and the EU on matters of notice and takedown is that the EU removes all of the formalities that exist under U.S. law and, with them, all of the protections."
A quad-band GMS phone with a provider that has service worldwide could come in handy. While rates can be expensive, it may still be cheaper and more convenient than trying to get setup in each country or region that you visit.
With a little bit of additional investigative work (I clicked on the button that said "View Complete Thread" under the pthreads better than Win32 threads posting), I discovered a post that may shed some light on Mr. Breshears' change of heart:
It appears that a posting my someone called Joe Seigh may have given Mr. Breshears another perspective to consider. That he was willing to change his position, rather than stretch to justify an original stance, shows some character that often is missing from those who publically express a point of view. I would not be surprised if we saw Mr. Breshears arguing sometime in the future that pthreads are better than Win32 threads---perhaps after pthreads have come out with some innovations that make them even more effective.
Don't feel bad about it now. Patent prosecution is expensive (unless you do it yourself, which for most people is a bad idea because they don't claim very many rights, and thus end up with weak patents). Feel bad a couple of years from now if this technology becomes extremely popular.
It wasn't really a stupid idea. In copyright law, independent creation is a defense to infringement. Patent law does not provide this defense. Ascertaining the better approach is definitely worthy of debate. There's even a good article recommending software patent reform through a combination of a mini-patent registration system and an independent invention defense against claims of infringement.
That posting is dated January 20th (2007 I assume). The patent's international filing date was November 9, 2006. Thus, the Slashdot posting would not anticipate the patent application. It might bolster an argument that the claimed invention is obvious, but it probably would not defeat the patent application if it was the only evidence of obviousness.
It is wonderful to hear that the PDF specification will be the subject of open standardization. Caution should be exercised when implementing products though. Almost 400 patents have been granted to Adobe. Adobe has another 50 patent applications in process. There may also be additional patents that have been assigned to Adobe or that Adobe has an exclusive license to practice. Adobe may also have intellectual property in foreign markets that are greater in scope than what Adobe has in the United States.
Caution should be exercised because ISO does not require that its standards be patent-free. Necessary patents merely must be available on a reasonable and non-discriminatory basis. Adobe (or anyone else really) may also seek patents on how PDFs are used, manipulated, etc.
This doesn't necessarily mean that Adobe is bad or that any Open Source Software projects will ever face any obstacles from Adobe. It simply means that some care should be taken to determine whether any of Adobe's patents cover features of the PDF standard or its uses, especially when developing software that mimics an existing proprietary product. If there is a question, then OSS developers should contact Adobe to try to get a license (perhaps for the consideration of a promise that the resulting product remain open source).
The best way to show scorn for a record label deserving scorn is not to listen to the songs it sells. Likewise, the best way to show scorn for a movie studio is neither purchase nor download the movies it sells. When you are listening to the music or watching the movies of entities you don't like, you're not listening to the music or watching the movies of those who you supposedly support. It's like pirating Windows: you end up taking away market share from Linux, Apple, BSD, etc. Sure, Microsoft makes less money from you, but it keeps its dominant position. When you download major label songs illegally, you take away market share from independent artists, reducing their chances of achieving the celebrity status you're helping establish for the major label artists.
This kind of activity drives the market price for movies down to nothing. The movie industry already has done much to discourage piracy. In particular, DVDs are sold at extremely low prices (with hopes of making profit based on high volume sales). But even low prices can't compete against free when quality and convenience are not at issue.
While big studios creating mass market movies can absorb much of the impact of piracy by selling large volumes to people who don't pirate movies (at least not all the time), independent movie makers are hurt by this race to the bottom. Lower movie prices make it more difficult for independents to make any profit, reducing the possibility of funding. Higher volume sales of mainstream movies fills up the time of consumers who have less reason to be choosey about they spend their money on (especially when they don't spend any money).
When justifying piracy, people ignore that their actions don't just affect the studios who they are stiffing. Their actions affect the market as a whole, promoting a culture of mass mediocracy.
It is important to understand that this is not a legally pursuasive argument and to understand why it falls short. U.S. law is not about the weight of judicial opinions. Whether one court or a thousand courts have decided an issue one way means nothing legally if a higher court interprets the law in a different way. It does not matter that this case was settled out-of-court. The Appeals Court for the Fourth Circuit issued a published opinion, an interpretation of law, which is binding on all the district courts in the Fourth Circuit. The decision even binds other panels of Fourth Circuit appellate judges.
Perhaps if the lower court's decision was very well written, then it might have some pursuasive value (at least in another circuit in which the area of law is undecided). But it is nonsensical to use this case to argue that DVD-copying programs should be protected under the First Amendment because they should receive at least as much protection as manuals on killing. All that citing to this case shows is that manuals on killing are not protected by the First Amendment in the Fourth Circuit.
But the Wachowski brothers were able to copyright The Matrix.
TFA mischaracterized the actual report. The only place where the report uses the word "reduces" is on page 33 where it simply points out that "[s]ome experts and analysts who are critical of the pharmaceutical industry often state that the emphasis on 'me too' drugs reduces innovation" (emphasis added). Reporting on a position is not the same as endorsing it. Critics of the pharmaceutical industry can't use a report on their own criticism as evidence that their criticism is sound.
The big question is who cares whether a minor variant on a drug that produces minimal gains is patentable? When the patent on the original version expires, doctors can still prescribe the medicine and consumers can still get the original benefits. And if there is some substantial gain due to the supposedly minor change, then why shouldn't the inventor get a patent? Also, if someone finds a new way of using an existing drug, something that was non-obvious, why shouldn't patent protection exist for that new use? If it is truly new and non-obvious, no one was using it for the alternative purpose nor would others have thought to use it for the alternative purpose.
Going through the actual report would show that the GAO report goes in a different direction from saying "patents are worthless." On page 36 the report suggests linking the length of patent protection to the therapeutic value (it suggest maybe 10 years protection for drugs offering less innovative benefits and up to 30 years for drugs considered innovative).
The article, the Slashdot headline, and the article summary all got it wrong when it comes to what the GAO report really said.One of the more entertaining protests against a set of deletions (for the topics Operation CWAL and Byeard Maggott) was an episode of The Maggott Show that criticized Wikipedia's deletion policies and the application of those policies by one of its editors. Byeard Maggott, the creator of the series, told the Wikipedia editor about the episode, starting an entertaining dialogue, during which the editor pointed out that he is called much worse things than jackass "on a regular basis by those who dislike [his] opinions on road safety issues.
They apply for a ton of expensive patents that the little players can't afford. Are patents necessarily that expensive? Look at the current fee schedule. A basic patent would cost about $1,200 in fees. The big costs are getting a patent agent or patent attorney in to draft up the claims properly and push the patent through the USPTO. And a lot of that cost can be reduced if the patent applicant is willing to take care of the dirty work of identifying the invention and producing an enabling disclosure.
Delaying patent processing for individuals who "troll" the patent office could delay patent processing for everyone else. Applicants for United States patent have the option of keeping their patent applications secret until the patents are issued (although a patent applicant who does this, instead of allowing the patent application to be published after eighteen months, loses the right to get a patent in many countries). If an applicant for a United States patent chooses to abandon one of these applications, then the application is never made public. If the patent issues, then it is prior art from the date of filing. If it is abandoned, it is not prior art.
This causes a problem in processing additional applications that claim to have invented what was in the unpublished patent application. Either the subsequent patent applicants have to narrow their claims, without knowing what the potential prior art is, or they have to wait while the patent office sorts out the first patent application. Punishing the first patent applicant by delaying the patent processing would also punish subsequent patent applicants.
Whether the creator of the prior art could file a patent also depends on whether the patent applicant conceived of the invention before whoever conceived of the prior art. Publishing an invention does not prevent someone else who invented it first from filing a patent application. Although it is an absolute bar if the inventor does not file within 12 months.
It's worth noting that the patent application may also may disclose something more precise than the prior art---an improvement perhaps. In that case, the patent applicant would still be able to claim the improved invention, unless the improvement was obvious to one of ordinary skill in the art.
This endeavor is likely to help in more precisely defining patent claims. Patents that are peer-reviewed potentially would be narrower and stronger. This is good because it would mean less pointless and preventable litigation.
This endeavor is also good as it would increase the average level of knowledge in the software industry of what patent claims are and what they mean. This would also mean less pointless and preventable litigation because 1) more software engineers would know how to steer around existing patents and 2) fewer patent holders would threaten to sue based on narrow patents.
The article for some reason links to an unrelated decision in the wrong court. It's an interesting decision that appears to be related to the PATRIOT act, but it has nothing to do with Crater v. Lucent. The correct link is here.
The conclusions of the Wired article may be a bit far reaching, at least based on a quick reading of the decision. Crater's patent infringement claim wasn't dismissed because of the secrecy of the documents requested. Their claim was dismissed because when the United States hires a contractor to make something and the contractor infringes in the processing of fulfilling the contract, the inventor has to sue the United States, not the contractor. See 14 USC Sec. 1498(a).
Crater continued to sue Lucent on a misappropriation of trade secrets claim and a breach of contract claim, which fall under State law, not Federal law. The lower court originally dismissed the claims because the evidence to support the claims was being protected as secret information. The Federal Circuit reversed this decision, holding that the lower court has to first determine what the trade secret or breach of contract claims are precisely (evidently, at the time of the lower court's ruling, evidence had not even been introduced that there ever was a contract). Only then should the lower court analyze the requested documents to determine how they affect the claims.
Of course, if the party being sued manages to keep all the evidence secret, it could be difficult to establish a case. Of course, if they had orginally agreed to settle disputes through arbitration, they wouldn't be able to go through discovery in the first place and Crater would have had to establish a case using only information found through their own investigative efforts. At least in this case, they can force the United States to search for and redact relevant documents through FOIA requests.
All four factors of "fair use" must be taken into consideration by the courts. See Rich. And because any alleged infringement can usually be distinguished from pre-existing case law, there is no such thing as an automatic fair use because one of the factors weighs heavily in favor of the alleged infringer. Copying 300 words can be an infringement while copying an entire work may not be an infringement. See Hollaar .
Until the courts decide whether a particular activity is a fair use, the alleged infringer is legally a kind of Schrodinger's Cat. Until the courts decide, Google is in a sense both a guilty infringer and an innocent fair user. Only legally observing Google's state by trial can definitively answer the question of whether Google's acts infringe on the rights of the plaintiff authors.
Most of the comments seem to focus on the morality of what the Fuddruckers webmaster (of html-peon) did or on what Mr. Briggs did. I think I even saw a comment on how stupid Fuddruckers must be.
What I haven't seen is the suggestion that perhaps Mr. Briggs passed up a modestly lucrative opportunity to profit a bit from his originally selfless efforts. After all, it's obvious that someone at Fuddruckers liked his game. He might have been able to convince them to legally purchase the rights, or at least agree to indemnify him if the original creators of the BurgerTime game ever decided to sue Mr. Briggs based on copyright infringement. Perhaps he might have convinced them to purchase a tweaked version of the game, customized for Fuddruckkers.
Instead, he decided to make a rather malicious effort to embarrass them, poisoning any potential commercial relationship. But, the opportunity to rant and show off modest technological l33t skillz was apparently enough to offset the potential of acquiring base, material crap such as money.
"First to file" really means "first inventor to file." If A invents something, but keeps it secret, and B comes up with the same invention, B gets the patent under a first to file system. But B must be an independent inventor.
Under our current system, A can file after B has filed triggering interference proceedings. These are costly proceedings that require both parties to produce evidence of when they each conceived of the invention and evidence that they were diligent in perfecting it.
While "first to invent" sounds more fair than "first to file" in theory, the emperical evidence is that it only affects a very small number of applications (somewhere around 3000 over the last 20 years). Independent inventors also are also a little more likely to lose in an interference when they filed first than they are to win in these proceedings when they invented first. See Mossinghoff , "The U.S. First-to-Invent System has Provided No Advantage to Small Entities."
Elimination of the "best mode" requirement would simplify litigation. Proving that the patent holder contemplated or did not contemplate a better embodiment of the invention can be difficult. On the other hand, elimination of this requirement could make it easier for powerful de factor standards setters to obtain narrow patents on minor changes to the software they market without disclosing particular details of their inventions. See Morgan , page 9.
One does not always have "duty of candor and good faith." In criminal proceedings, the defendant has a right to remain silent. Perjury is illegal, but the defendant does not have to admit to guilt. It is up to the prosecutor to make the case. Good faith is also difficult to prove or disprove. Objective standards are much easier to work with.
Duty of candor and good faith already exists. The difference with this bill is that the USPTO would be the sole investigator and enforcer of this duty. Currently, these issues come up in court when a patent is being litigated. It's easy to alledge but costly to defend because of substantial discovery costs.
This provision could be really good though because there has been a trend of patent attorneys advising companies to not have their engineers and scientists look at other patents. The legal theory, which is supported by case law, is that the employees learn of the patent and any infringement is willful because the company didn't get a legal opinion. This extreme position is plain stupid. The scientists and engineers inventing cool stuff are the ones who can quickly understand an inv