I assume this is tongue and cheek, but the Eastern District of Texas (in its entirety) has 10 Federal judges and 10 magistrate judges. In Marshall Texas, where a majority of the "trolls" file, there are three judges. (http://www.txed.uscourts.gov/page1.shtml?location=info)
Notwithstanding the sometimes (frequently?) wacky jury results, an interesting thing is starting to happen though with the Eastern District of Texas: the judges are getting very good at patent cases. The judges are very good at doing "claim construction" and other technical aspects of patent cases. The result is cases tend not to languish because the judge is confused or baffled by the process or technology.
By contrast, there are districts that it is virtually impossible to litigate patent infringement cases because there is NO expertise among the judges.
This is ridiculous. First to File does not eliminate derivation (i.e., taking someone else's invention) and does not eliminate prior art. In fact, the reform bill includes new rules regarding derivation.
Regarding prior art, prior use, prior sale, prior publication, prior patenting, etc. are all still grounds for invalidity.
Moving to a first to file system only means that everyone needs to "rush" to the patent office to file. Which, in reality, is not much different than it was in the case of two near simultaneous patent applicants since the later-filer-but-earlier-inventor has to show diligence and non-concealment in getting an application on file to overcome the earlier-filed application.
No. Well, sort of no. The system isn't much different for that person than it is under the current system.
The first file only impacts the situation in which two people file a patent application at or about the same time. The first to file rule says that one with the earlier postmark wins, essentially. Under the current rules, someone can have filed later in time but shown by evidence that they had possession of the invention sooner by proof of diligence and non-concealment.
I think that there is a lot of confusion in this thread about what First to File really means.
among other things, the lawyer friend can tell you exactly how to register the copyrights on your software.
As an IP Lawyer, I can tell you that that's not really rocket science. The copyright office gives you pretty much everything you need to know here: http://www.copyright.gov/circs/circ61.pdf
So I think you are in part correct that the simple site isn't living up to its name--it takes a lot of effort to dumb stuff down. However, when you look at the "advanced" pages you start to realize how certain material gets categorized that way: scientific words and pages with primarily people of place names.
The other problem is that it's doing it based on volume of pages. The simple site actually has relatively few number of pages in total thereby more heavily increasing the "advanced" pages.
Finally, just to be clear, it doesn't seem to be computing the percentage of content, but rather what percentage of pages (in total) fall into one or the other category.
I am a lawyer, but not your lawyer. It seems to me that order would matter.
If you assign your copyright first, then there is no GPL issue. The GPL simply wouldn't apply. The assignee (i.e., the new owner) did not need the license to use the software. And even if GPL did apply, they are under no obligation to continue distributing it and you have given up your right to do so (e.g., you sold all your rights to them).
If you make a GPL transfer first, and the assign second, you could have a copy of the software that could subsequently be transfered under the GPL. The real obvious issue is that a properly prepared assignment reps against this scenario. You are likely going to be in breach of the assignment.
I use a product X, of which is infringing upon product y, I am not liable for uses of product X. The patent system doesn't support 3rd party liability. it's just distributors buckling under legal threats.
You would be very, very wrong. Your use of an infringing product still makes you an infringer. (35 U.S.C. Sec. 271(a))("whoever without authority makes, uses, offers to sell, or sells any patented invention...). Now, there are default rules that say that a purchaser of a good is "indemnified" from claims of infringement by the seller. (See UCC Art. 2 Sec. 312) This is typically how end user avoid litigation.
In addition, you're also wrong to think that the patent system doesn't support third party liability. It does. One party's can be sued for another person's direct infringement. It's called "indirect infringement." (35 U.S.C. Sec. 271 (b) and(c)). The rules on when this apply are stated in the statute and are not always so easy to discern. One way to think about it: a party cannot escape liability by simply knowing moving the infringement downstream.
And, just so that you know, it is a somewhat common strategy that a patent owner sues the end user, direct infringer. There is nothing worse as a supplier than receiving about 30 letters from angry customers seeking indemnification from the infringement suit. This is a great technique to annoy the party with deep pockets and drive home the advantages of settling early.
Consider that DVD was developed in 1995, so the base MPEG-2 patents expire within 5 years, if not earlier.
Patents last 28 years (in the US at least), that puppy has another 13 years or so on it.
Huh? US Patents don't last 28 years. New patents have a term of 20 years from the earliest filing date. Patents filed before June 8, 1995 have a term that is the longer of (i) 20 years from the earliest filing date; or (ii) 17 years from the date of issue.
Sort of? If you mean the lower court by "the court," the answer is largely no it is not precedent because the lower court's rulings were overturned on appeal.
However, the settlement came after an appeal to the Federal Circuit. The appeal resulted in a vacated judgment and the case was remanded to the lower court. The opinion of the appellate case, found here, will be precedential and binding on all federal courts. This settlement ends the "further proceedings" part of the case. As a result, there is no final decision by the court, but there is a final appellate decision.
No offense, but you clearly didn't RTFP. In order to be good prior art (anticipating art), the relevant art must include all of the elements of a claim. You can make an obviousness argument if you can find all of the elements in two or more references. To help you out, I've broken down the first independent claim into manageable pieces. You'll quickly notice that neither of your examples are even close:
1. A system for providing financial information about a target entity in response to a user request, comprising:
[ ]one or more computers configured to provide a user interface including:
[ ] a main chart for showing a graph of financial data over
[ ] a first time period;
[ ] a second chart displayed concurrently with the main chart, and
[ ] for showing a graph of financial data over a second time period that
[ ] includes the first time period; and
[ ] a user-adjustable viewing window displayed on the second chart,
[ ] wherein the first time period of the main chart is defined by placement of the user-adjustable viewing window on the second chart.
IAAL. I work with technology contracts. I think that the only reason a lawyer will be scratching his head is because of the genuine unlikelihood that the customer could actually prove a fraud case against a vendor. That's not to say it's impossible, just so unlikely. What's clear is that this was not a contract case. If it was merely a contract case, it would have looked to the four corners of the agreement. The plaintiffs (the customer) had to work extra hard (i.e., $40M in legal fees hard) to prove the fraud.
Customer-clients regularly come to me with contracts that have: 1. no objective criteria to measure success/failure 2. all of the liability for delays, failure to perform, etc. allocated to the Customer 3. do not have sufficient input from the technical people that will actually be working on the project. 4. no contractual remedies for failure. 5. no change management process.
Point #1 is the most important. In this case, if there were objective criteria to measure success, then the breach of contract case is simple to prove. It is like engaging in the design/plan phase of development before you even sign the contract. If a customer can't figure out what objective criteria it needs, it's probably not a good time to enter a $40M contract. Take for example, the objective criteria that the EDS software will meet the minimum process per second with 150 active users. Easy, does it do? If not, see points 2 and 4.
Point #2 is often overlooked. Customers regularly sign contracts that permit a vendor to deliver something non-conforming on the delivery date and not be in breach. The contracts are also usually written so that the additional time spent correcting the non-conforming deliverables are paid by the Customer. These are usually sneakily inserted under the "right to cure" a breach provision. At some point, the vendor (not the customer) should be paying.
Point #3 is necessary in order to establish point #1 and point #2. Management has this idea: oh we need ___ system. Let's find a vendor of ___ system. However, it is the technical people that need to set the objective criteria and then be able to test that it was met.
Point #4 is the stick with which you beat the Vendor into meeting those requirements. Every customer should be asking, "what happens if they don't deliver?" I say, "show me the money." Of course, you can customize however you see fit. Customers however don't usually ask.
Finally, point #5 is so painful its hard to write about. A lot of time and money is lost because the customer does not have a good internal change management process. In addition, the customer does not put that change management process in writing with the vendor. Any change management process should be coordinated through a project manager. The process should require 1. estimates of cost and 2. affect on time line. These should require signature of someone higher up the chain than the project manager if there is a big impact on price or time--what constitutes a "big impact" should be spelled out (e.g., more than $10,000 or more than a 1 week).
As a last tidbit: technology people need to STOP SIGNING AGREEMENTS WITHOUT A REAL LEGAL REVIEW. This includes the stupid little EULAs that you click ok to. That includes the purchase of off the shelf software. That includes signing up a third party for professional services. Those words mean things. Spending $1-3K now saves a boat load on the backend.
At the outset, it can be true. This can and does happen: mickey mouse, indiana jones, james bond, sherlock holmes, etc. But that doesn't make much difference. You can have lots of people using the same trademark. The easiest example, think Delta (faucet, airline, dental, etc.).
The problem, as I see it, with the case at issue: 1. Few people (or no one) would think that the author, publisher or estate would make the association with the Nexus One.
2. The book and the Nexus-One operate in entirely different markets.
There is no likelihood of confusion, there is no issue.
There's no inconsistency. If you are the first to apply for a FEDERAL trademark but there are other users of the mark, your FEDERAL rights may be restricted, canceled, or otherwise narrowed.
You can apply for a Federal mark if you use or intend to use a mark in inter-state commerce (i.e., in more than one state). Otherwise you are limited to common law rights OR state rights.
You get trademark (or service mark) rights simply by using a mark to identify the source of a product in commerce; no registration is required. However, the scope of your rights will be limited to the territory in which you had actual use. For instance, if you have a Pizza shop (pizza analogy guy where are you?) in California under the name, "Cheezy Mushroom" or something, you would automatically start accruing rights in that mark the moment you started selling pizza. Your right to prevent other Cheezy Mushroom pizzas is limited by your geographic reach. This is called a COMMON LAW trademark.
If you started selling out of California, presto, you can apply for Federal protection and get Federal rights that gives you protection throughout the country.
Patents will be the death of innovation if the system continues in this way, particularly if the US judgements are assessed at insane levels of cost. If Microsoft had known about this patent when starting the development they'd have bought the company for less than this judgement.
Back in 2001, two companies now locked in a nasty legal battle were working together to develop software for the U.S. government. Microsoft Corp. needed a third-party developer, i4i Inc., to incorporate custom XML functionality into Word.
Well, on the one hand, the patent gives i4i the right to exclude others from practicing the claimed invention. The court has already told MS that Word is infringing, therefore selling Word would violate the patent rights. MS could simply removing the infringing feature and it could continue selling Word. MS is in control of this aspect.
On the other hand, at the moment, i4i has very little incentive to offer MS any sort of license. i4i won at the lower court and on appeal. Plus, I believe the story goes that they approached MS and MS sent them away and then went ahead and implemented it anyway. They will be able to demand infringement-sized royalties the closer it gets to January 11.
I would have far less of a problem with software patents if they actually disclosed fully functional source code with the patent
Some patents do include source code. But the law has pretty much made this non-essential. This has happened for the same reason that most electronic patents no longer include the diagrams with elaborate gating, switches, etc. Courts and the PTO have more or less made the enablement requirement assume that one of ordinary skill (including reasonably skilled programmers) could put together the source code if given the high level steps. You don't need the source code if you know the steps.
In addition, source code has a serious flaw: not all source code is created the same. It would be of little help if the source code is obfuscated, in a language few remember of know (my favorite that comes up from time to time in MHR is MIIS), or if certain functions relevant to the invention are taken out of context of the rest of the system. Filing 1000+ pages of source code is not going to make the system better. It will probably make it worse.
IAaIPL with a pretty big lawfirm, so I'll take a crack at this:
Why allow software to be patented instead of copyrighted?
There is no "instead." Currently you can obtain both: one for "original work of authorship fixed in a tangible medium of expression" (i.e., copyright), and one for the "new, useful, non-obvious" "process, machine, manufacture, or composition of matter, or any new and useful improvement thereof" (i.e., patent).
Patents should be for THINGS (concrete stuff).
Well, I'm sure that one make the concrete industry happy, but I don't think it is a logical policy distinction.
Snark aside, there are a few easily articulated reasons. First, it really depends on what you mean by "concrete stuff" and "things." There are lots of "things" that aren't concrete (we usually say "tangible"). But interpreting what you mean by "concrete" from your subsequent bullet, I'll tell you that your conception of the dichotomy between patents and copyrights is almost 100% inverted. Patents are essentially stakes in the ground around an idea whereas copyright is the protection of the actual expression of an idea. As it relates to software, it's the difference between the idea for the code and the code itself.
Second, the statutory classes include non-concrete things such as processes. This is the "because the law says so" argument.
Third, it's not just tangible things because it's very difficult to draw the line between "concrete stuff" and the not-so-concrete stuff. If you look at the claims at issue in this case, they're not just the algorithm. It's a computer programmed to do the algorithm.
Think about it like this: a lever and a fulcrum are essentially the mechanical expression of using a physics equation for leverage. If you were the first person to think of how to apply the leverage equation to lift things, that would be quite an advance--I have assumed away the obviousness issues since the inventor is the first person to ever think of it and focused only on whether it would be patentable at all.
Copyright should cover TEXT (abstract stuff).
It's not the "abstract stuff" that is covered at all. It is the actual expression of the abstract stuff that is covered. You do not get a copyright for your incorrect ideas about intellectual property, only the expression of it.
Seems to me that these systems should exist to prevent others from stealing your specific work, the result of *your* labor; not to prevent others from engaging in the same line of business. Which seems to be the point of much of software patenting.
If you've ever been involved in a copyright dispute, you'd recognize how little protection that actually offers you. Furthermore, if you've ever been involved in a major software development project, the amount of time actually writing a specific piece of code is diminishingly small compared to the other time, effort and energy expended to get to that point: design, plan, etc.
Viewed in this lens, protecting only the expression is not a lot of protection since it's easy to copy the idea without copying the code.
i have tons of doodles and outlines for things i'd like to see on the market or share.
Your individual experience says little about whether patenting and copyrighting advances or encourages innovation. Patents and copyrights offer some additional incentives. Those incentives are not enough for you, clearly. You are not along, there is a whole world of trade secrets for innovations that would be under-rewarded via patents and copyrights.
But your argument is really a push for MORE benefits; not less. You would be unmotivated to contribute to innovation under the current system. The absence of that system would not provide MORE innovation from you.
Only individuals and not corporations may apply for patents.
Only the actual inventor can apply for and be granted the patent.
Well, in the US (unlike the rest of the world), patents are filed in the name of inventor. However, since patents and patent applications are like any personal property, they can be sold. The law really doesn't limit to whom a seller (the individual inventors) may sell his or her patents, but see my point below.
Patents cannot be sold, only licensed.
This wouldn't change a thing. You can structure a license to effectively be a "sale" without calling it a sale. [As an aside, there is a line of cases that distinguish between a license and a "sale of substantially all the rights" (aka an assignment)]. If there is some limit on what part of the whole you're allowed to license then people that intend to "sell" the patent will go right up to that line.
Also, this doesn't make much sense in the real world.
First, if you're a company that employs the inventor, you're going to be pretty annoyed when that inventor walks and takes the invention with him to your competitor.
Second, it also doesn't make sense if you're selling your business, going into bankruptcy, trying to use the patent as collateral for a loan, etc.
Finally, there are probably all kinds of weird tax issues with the license-only, no sale provisions.
...with the majority really just wanting a foothold for litigation riches.
Contrary to this popular belief, lots of patent applicants want a patent to start their business and many others want to have a portfolio for defensive purposes. I'll also throw this out there, most of the patent applicants are not the same party that ends up litigating the patent. Many inventors and most companies cannot finance patent litigation. Even if they can finance the litigation, they're too risk adverse to monetize it this way. There is a lot of risk in patent litigation. It's much easier to take a lowball license fee than it is to risk/pay for 1) reexamination and 2) actual litigation.
The most notorious group of patent litigators are usually companies that have acquired the patent for a nominal amount from the original inventors either through a bankruptcy, auction, or, occasionally, via a firesale when a company is in dire straights. Once they have it, they have little or no emotional attachment to the invention and there is little life left in the patent (term is about to expire) so they don't worry about making broad sweeping allegations of infringement for fear of invalidating the patent. They also don't fear invalidating the patent because they don't have any incentive to use it defensively since they have no products of their own.
Finally, I'll note that only the tiniest minority of patents ever see the light of day. Most collect dust on someone's shelf.
I'm not sure how this got moderated informative. The earliest filing date of both patents is Oct. 17, 1994! Your implementation is 7 years too late, and LiveConnect is about 3 years too late. You're welcome to try again.
To be rock solid prior art, you'd need something dated Oct. 17, 1993 or earlier.
Not true. This is an ISSUED patent; see the patent number: 7,617,530. You can also check its status in public pair (http://portal.uspto.gov/external/portal/pair): 10-21-2009 ISSUE.NTF Issue Notification 1 10-01-2009 IFEE Issue Fee Payment (PTO-85B) 1 10-01-2009 LET. Miscellaneous Incoming Letter 1 10-01-2009 WFEE Fee Worksheet (PTO-875) 2 10-01-2009 N417 EFS Acknowledgment Receipt 2 08-24-2009 NOA Notice of Allowance and Fees Due (PTOL-85) 10
I'll draw your attention to the first and last lines in the excerpt from the file wrapper.
What does matter is the quality of the idea and the quality of the process to determine the validity of the patent application. This is where the problem lies today. It's not that people shouldn't get patents for software, it's that the patents that are being granted are of such poor quality that it calls into question the whole system.
In part, I think that the Redhat brief is consistent with this statement--the brief does not think that abstract ideas should be patentable (neither does the SCOTUS, PTO or Fed. Cir). If you read the brief carefully, it argues that patents on software are too vague to be useful and that the proliferation of vague patents makes the current system untenable. Compare that situation to, for example, patents that cover mechanical devices where the elements are discrete things that you can touch.
In patent speak, these are all problems under 35 USC Sec. 112. The problem for all of the briefs like this is that the issue before the SCOTUS is not 112, it's 101. Section 101 defines the "subject matter" of patents. It does not address the "quality" of the patents.
That said, a lot of people have argued in a number of places that really what's happening is that the PTO and the Fed. Cir. want to use 101 as a way to exclude poorly claimed inventions that step closer into the realm of mere abstract ideas and speculation than actual implementation.
But the SCOTUS does not take case to affirm the decision. So one of two things is going to happen: they are going to overturn the Bilski decision as too rigid or they are going to take the opportunity to rewrite the laws of 101 and 112.
Yes. Unlike copyrights, the government can (and does) own patent rights. When the government funds the work giving rise to the patents, the contractor (or university) will own the patent, but the government actually get a non-exclusive right to the patent. See Bayh-Dole, 35 U.S.C. Sec. 200 et. seq.
When Bayh-Dole applies, the owning entity then has an obligation to actually exploit the invention. If they don't the government has "march-in" rights that would let the government take ownership. Not that that's ever happened.
Slashdot Mirror
I assume this is tongue and cheek, but the Eastern District of Texas (in its entirety) has 10 Federal judges and 10 magistrate judges. In Marshall Texas, where a majority of the "trolls" file, there are three judges. (http://www.txed.uscourts.gov/page1.shtml?location=info)
Notwithstanding the sometimes (frequently?) wacky jury results, an interesting thing is starting to happen though with the Eastern District of Texas: the judges are getting very good at patent cases. The judges are very good at doing "claim construction" and other technical aspects of patent cases. The result is cases tend not to languish because the judge is confused or baffled by the process or technology.
By contrast, there are districts that it is virtually impossible to litigate patent infringement cases because there is NO expertise among the judges.
... for each instance of this being implemented on another device? Seriously.
This is ridiculous. First to File does not eliminate derivation (i.e., taking someone else's invention) and does not eliminate prior art. In fact, the reform bill includes new rules regarding derivation.
Regarding prior art, prior use, prior sale, prior publication, prior patenting, etc. are all still grounds for invalidity.
Moving to a first to file system only means that everyone needs to "rush" to the patent office to file. Which, in reality, is not much different than it was in the case of two near simultaneous patent applicants since the later-filer-but-earlier-inventor has to show diligence and non-concealment in getting an application on file to overcome the earlier-filed application.
No. Well, sort of no. The system isn't much different for that person than it is under the current system.
The first file only impacts the situation in which two people file a patent application at or about the same time. The first to file rule says that one with the earlier postmark wins, essentially. Under the current rules, someone can have filed later in time but shown by evidence that they had possession of the invention sooner by proof of diligence and non-concealment.
I think that there is a lot of confusion in this thread about what First to File really means.
among other things, the lawyer friend can tell you exactly how to register the copyrights on your software.
As an IP Lawyer, I can tell you that that's not really rocket science. The copyright office gives you pretty much everything you need to know here:
http://www.copyright.gov/circs/circ61.pdf
So I think you are in part correct that the simple site isn't living up to its name--it takes a lot of effort to dumb stuff down. However, when you look at the "advanced" pages you start to realize how certain material gets categorized that way: scientific words and pages with primarily people of place names.
The other problem is that it's doing it based on volume of pages. The simple site actually has relatively few number of pages in total thereby more heavily increasing the "advanced" pages.
Finally, just to be clear, it doesn't seem to be computing the percentage of content, but rather what percentage of pages (in total) fall into one or the other category.
I am a lawyer, but not your lawyer. It seems to me that order would matter.
If you assign your copyright first, then there is no GPL issue. The GPL simply wouldn't apply. The assignee (i.e., the new owner) did not need the license to use the software. And even if GPL did apply, they are under no obligation to continue distributing it and you have given up your right to do so (e.g., you sold all your rights to them).
If you make a GPL transfer first, and the assign second, you could have a copy of the software that could subsequently be transfered under the GPL. The real obvious issue is that a properly prepared assignment reps against this scenario. You are likely going to be in breach of the assignment.
You would be very, very wrong. Your use of an infringing product still makes you an infringer. (35 U.S.C. Sec. 271(a))("whoever without authority makes, uses, offers to sell, or sells any patented invention...). Now, there are default rules that say that a purchaser of a good is "indemnified" from claims of infringement by the seller. (See UCC Art. 2 Sec. 312) This is typically how end user avoid litigation.
In addition, you're also wrong to think that the patent system doesn't support third party liability. It does. One party's can be sued for another person's direct infringement. It's called "indirect infringement." (35 U.S.C. Sec. 271 (b) and(c)). The rules on when this apply are stated in the statute and are not always so easy to discern. One way to think about it: a party cannot escape liability by simply knowing moving the infringement downstream.
And, just so that you know, it is a somewhat common strategy that a patent owner sues the end user, direct infringer. There is nothing worse as a supplier than receiving about 30 letters from angry customers seeking indemnification from the infringement suit. This is a great technique to annoy the party with deep pockets and drive home the advantages of settling early.
Consider that DVD was developed in 1995, so the base MPEG-2 patents expire within 5 years, if not earlier.
Patents last 28 years (in the US at least), that puppy has another 13 years or so on it.
Huh? US Patents don't last 28 years. New patents have a term of 20 years from the earliest filing date. Patents filed before June 8, 1995 have a term that is the longer of (i) 20 years from the earliest filing date; or (ii) 17 years from the date of issue.
Sort of? If you mean the lower court by "the court," the answer is largely no it is not precedent because the lower court's rulings were overturned on appeal.
However, the settlement came after an appeal to the Federal Circuit. The appeal resulted in a vacated judgment and the case was remanded to the lower court. The opinion of the appellate case, found here, will be precedential and binding on all federal courts. This settlement ends the "further proceedings" part of the case. As a result, there is no final decision by the court, but there is a final appellate decision.
No offense, but you clearly didn't RTFP. In order to be good prior art (anticipating art), the relevant art must include all of the elements of a claim. You can make an obviousness argument if you can find all of the elements in two or more references. To help you out, I've broken down the first independent claim into manageable pieces. You'll quickly notice that neither of your examples are even close:
1. A system for providing financial information about a target entity in response to a user request, comprising:
[ ]one or more computers configured to provide a user interface including:
[ ] a main chart for showing a graph of financial data over
[ ] a first time period;
[ ] a second chart displayed concurrently with the main chart, and
[ ] for showing a graph of financial data over a second time period that
[ ] includes the first time period; and
[ ] a user-adjustable viewing window displayed on the second chart,
[ ] wherein the first time period of the main chart is defined by placement of the user-adjustable viewing window on the second chart.
IAAL. I work with technology contracts. I think that the only reason a lawyer will be scratching his head is because of the genuine unlikelihood that the customer could actually prove a fraud case against a vendor. That's not to say it's impossible, just so unlikely. What's clear is that this was not a contract case. If it was merely a contract case, it would have looked to the four corners of the agreement. The plaintiffs (the customer) had to work extra hard (i.e., $40M in legal fees hard) to prove the fraud.
Customer-clients regularly come to me with contracts that have:
1. no objective criteria to measure success/failure
2. all of the liability for delays, failure to perform, etc. allocated to the Customer
3. do not have sufficient input from the technical people that will actually be working on the project.
4. no contractual remedies for failure.
5. no change management process.
Point #1 is the most important. In this case, if there were objective criteria to measure success, then the breach of contract case is simple to prove. It is like engaging in the design/plan phase of development before you even sign the contract. If a customer can't figure out what objective criteria it needs, it's probably not a good time to enter a $40M contract. Take for example, the objective criteria that the EDS software will meet the minimum process per second with 150 active users. Easy, does it do? If not, see points 2 and 4.
Point #2 is often overlooked. Customers regularly sign contracts that permit a vendor to deliver something non-conforming on the delivery date and not be in breach. The contracts are also usually written so that the additional time spent correcting the non-conforming deliverables are paid by the Customer. These are usually sneakily inserted under the "right to cure" a breach provision. At some point, the vendor (not the customer) should be paying.
Point #3 is necessary in order to establish point #1 and point #2. Management has this idea: oh we need ___ system. Let's find a vendor of ___ system. However, it is the technical people that need to set the objective criteria and then be able to test that it was met.
Point #4 is the stick with which you beat the Vendor into meeting those requirements. Every customer should be asking, "what happens if they don't deliver?" I say, "show me the money." Of course, you can customize however you see fit. Customers however don't usually ask.
Finally, point #5 is so painful its hard to write about. A lot of time and money is lost because the customer does not have a good internal change management process. In addition, the customer does not put that change management process in writing with the vendor. Any change management process should be coordinated through a project manager. The process should require 1. estimates of cost and 2. affect on time line. These should require signature of someone higher up the chain than the project manager if there is a big impact on price or time--what constitutes a "big impact" should be spelled out (e.g., more than $10,000 or more than a 1 week).
As a last tidbit: technology people need to STOP SIGNING AGREEMENTS WITHOUT A REAL LEGAL REVIEW. This includes the stupid little EULAs that you click ok to. That includes the purchase of off the shelf software. That includes signing up a third party for professional services. Those words mean things. Spending $1-3K now saves a boat load on the backend.
At the outset, it can be true. This can and does happen: mickey mouse, indiana jones, james bond, sherlock holmes, etc. But that doesn't make much difference. You can have lots of people using the same trademark. The easiest example, think Delta (faucet, airline, dental, etc.).
The problem, as I see it, with the case at issue:
1. Few people (or no one) would think that the author, publisher or estate would make the association with the Nexus One.
2. The book and the Nexus-One operate in entirely different markets.
There is no likelihood of confusion, there is no issue.
There's no inconsistency. If you are the first to apply for a FEDERAL trademark but there are other users of the mark, your FEDERAL rights may be restricted, canceled, or otherwise narrowed.
You can apply for a Federal mark if you use or intend to use a mark in inter-state commerce (i.e., in more than one state). Otherwise you are limited to common law rights OR state rights.
You get trademark (or service mark) rights simply by using a mark to identify the source of a product in commerce; no registration is required. However, the scope of your rights will be limited to the territory in which you had actual use. For instance, if you have a Pizza shop (pizza analogy guy where are you?) in California under the name, "Cheezy Mushroom" or something, you would automatically start accruing rights in that mark the moment you started selling pizza. Your right to prevent other Cheezy Mushroom pizzas is limited by your geographic reach. This is called a COMMON LAW trademark.
If you started selling out of California, presto, you can apply for Federal protection and get Federal rights that gives you protection throughout the country.
Uh, they did know: http://blog.seattlepi.com/microsoft/archives/178682.asp
Well, on the one hand, the patent gives i4i the right to exclude others from practicing the claimed invention. The court has already told MS that Word is infringing, therefore selling Word would violate the patent rights. MS could simply removing the infringing feature and it could continue selling Word. MS is in control of this aspect.
On the other hand, at the moment, i4i has very little incentive to offer MS any sort of license. i4i won at the lower court and on appeal. Plus, I believe the story goes that they approached MS and MS sent them away and then went ahead and implemented it anyway. They will be able to demand infringement-sized royalties the closer it gets to January 11.
Some patents do include source code. But the law has pretty much made this non-essential. This has happened for the same reason that most electronic patents no longer include the diagrams with elaborate gating, switches, etc. Courts and the PTO have more or less made the enablement requirement assume that one of ordinary skill (including reasonably skilled programmers) could put together the source code if given the high level steps. You don't need the source code if you know the steps.
In addition, source code has a serious flaw: not all source code is created the same. It would be of little help if the source code is obfuscated, in a language few remember of know (my favorite that comes up from time to time in MHR is MIIS), or if certain functions relevant to the invention are taken out of context of the rest of the system. Filing 1000+ pages of source code is not going to make the system better. It will probably make it worse.
IAaIPL with a pretty big lawfirm, so I'll take a crack at this:
There is no "instead." Currently you can obtain both: one for "original work of authorship fixed in a tangible medium of expression" (i.e., copyright), and one for the "new, useful, non-obvious" "process, machine, manufacture, or composition of matter, or any new and useful improvement thereof" (i.e., patent).
Well, I'm sure that one make the concrete industry happy, but I don't think it is a logical policy distinction.
Snark aside, there are a few easily articulated reasons. First, it really depends on what you mean by "concrete stuff" and "things." There are lots of "things" that aren't concrete (we usually say "tangible"). But interpreting what you mean by "concrete" from your subsequent bullet, I'll tell you that your conception of the dichotomy between patents and copyrights is almost 100% inverted. Patents are essentially stakes in the ground around an idea whereas copyright is the protection of the actual expression of an idea. As it relates to software, it's the difference between the idea for the code and the code itself.
Second, the statutory classes include non-concrete things such as processes. This is the "because the law says so" argument.
Third, it's not just tangible things because it's very difficult to draw the line between "concrete stuff" and the not-so-concrete stuff. If you look at the claims at issue in this case, they're not just the algorithm. It's a computer programmed to do the algorithm.
Think about it like this: a lever and a fulcrum are essentially the mechanical expression of using a physics equation for leverage. If you were the first person to think of how to apply the leverage equation to lift things, that would be quite an advance--I have assumed away the obviousness issues since the inventor is the first person to ever think of it and focused only on whether it would be patentable at all.
It's not the "abstract stuff" that is covered at all. It is the actual expression of the abstract stuff that is covered. You do not get a copyright for your incorrect ideas about intellectual property, only the expression of it.
If you've ever been involved in a copyright dispute, you'd recognize how little protection that actually offers you. Furthermore, if you've ever been involved in a major software development project, the amount of time actually writing a specific piece of code is diminishingly small compared to the other time, effort and energy expended to get to that point: design, plan, etc.
Viewed in this lens, protecting only the expression is not a lot of protection since it's easy to copy the idea without copying the code.
Your individual experience says little about whether patenting and copyrighting advances or encourages innovation. Patents and copyrights offer some additional incentives. Those incentives are not enough for you, clearly. You are not along, there is a whole world of trade secrets for innovations that would be under-rewarded via patents and copyrights.
But your argument is really a push for MORE benefits; not less. You would be unmotivated to contribute to innovation under the current system. The absence of that system would not provide MORE innovation from you.
This is a silly proposal.
Well, in the US (unlike the rest of the world), patents are filed in the name of inventor. However, since patents and patent applications are like any personal property, they can be sold. The law really doesn't limit to whom a seller (the individual inventors) may sell his or her patents, but see my point below.
This wouldn't change a thing. You can structure a license to effectively be a "sale" without calling it a sale. [As an aside, there is a line of cases that distinguish between a license and a "sale of substantially all the rights" (aka an assignment)]. If there is some limit on what part of the whole you're allowed to license then people that intend to "sell" the patent will go right up to that line.
Also, this doesn't make much sense in the real world.
First, if you're a company that employs the inventor, you're going to be pretty annoyed when that inventor walks and takes the invention with him to your competitor.
Second, it also doesn't make sense if you're selling your business, going into bankruptcy, trying to use the patent as collateral for a loan, etc.
Finally, there are probably all kinds of weird tax issues with the license-only, no sale provisions.
Contrary to this popular belief, lots of patent applicants want a patent to start their business and many others want to have a portfolio for defensive purposes. I'll also throw this out there, most of the patent applicants are not the same party that ends up litigating the patent. Many inventors and most companies cannot finance patent litigation. Even if they can finance the litigation, they're too risk adverse to monetize it this way. There is a lot of risk in patent litigation. It's much easier to take a lowball license fee than it is to risk/pay for 1) reexamination and 2) actual litigation.
The most notorious group of patent litigators are usually companies that have acquired the patent for a nominal amount from the original inventors either through a bankruptcy, auction, or, occasionally, via a firesale when a company is in dire straights. Once they have it, they have little or no emotional attachment to the invention and there is little life left in the patent (term is about to expire) so they don't worry about making broad sweeping allegations of infringement for fear of invalidating the patent. They also don't fear invalidating the patent because they don't have any incentive to use it defensively since they have no products of their own.
Finally, I'll note that only the tiniest minority of patents ever see the light of day. Most collect dust on someone's shelf.
I'm not sure how this got moderated informative. The earliest filing date of both patents is Oct. 17, 1994! Your implementation is 7 years too late, and LiveConnect is about 3 years too late. You're welcome to try again.
To be rock solid prior art, you'd need something dated Oct. 17, 1993 or earlier.
Not true. This is an ISSUED patent; see the patent number: 7,617,530. You can also check its status in public pair (http://portal.uspto.gov/external/portal/pair):
10-21-2009 ISSUE.NTF Issue Notification 1
10-01-2009 IFEE Issue Fee Payment (PTO-85B) 1
10-01-2009 LET. Miscellaneous Incoming Letter 1
10-01-2009 WFEE Fee Worksheet (PTO-875) 2
10-01-2009 N417 EFS Acknowledgment Receipt 2
08-24-2009 NOA Notice of Allowance and Fees Due (PTOL-85) 10
I'll draw your attention to the first and last lines in the excerpt from the file wrapper.
That said, the claims DO NOT cover sudo.
What does matter is the quality of the idea and the quality of the process to determine the validity of the patent application. This is where the problem lies today. It's not that people shouldn't get patents for software, it's that the patents that are being granted are of such poor quality that it calls into question the whole system.
In part, I think that the Redhat brief is consistent with this statement--the brief does not think that abstract ideas should be patentable (neither does the SCOTUS, PTO or Fed. Cir). If you read the brief carefully, it argues that patents on software are too vague to be useful and that the proliferation of vague patents makes the current system untenable. Compare that situation to, for example, patents that cover mechanical devices where the elements are discrete things that you can touch.
In patent speak, these are all problems under 35 USC Sec. 112. The problem for all of the briefs like this is that the issue before the SCOTUS is not 112, it's 101. Section 101 defines the "subject matter" of patents. It does not address the "quality" of the patents.
That said, a lot of people have argued in a number of places that really what's happening is that the PTO and the Fed. Cir. want to use 101 as a way to exclude poorly claimed inventions that step closer into the realm of mere abstract ideas and speculation than actual implementation.
But the SCOTUS does not take case to affirm the decision. So one of two things is going to happen: they are going to overturn the Bilski decision as too rigid or they are going to take the opportunity to rewrite the laws of 101 and 112.
Yes. Unlike copyrights, the government can (and does) own patent rights. When the government funds the work giving rise to the patents, the contractor (or university) will own the patent, but the government actually get a non-exclusive right to the patent. See Bayh-Dole, 35 U.S.C. Sec. 200 et. seq.
When Bayh-Dole applies, the owning entity then has an obligation to actually exploit the invention. If they don't the government has "march-in" rights that would let the government take ownership. Not that that's ever happened.