Even though you're marked redundant, I'll respond.
It's not unconstitutional because patents are granted to the inventors. You'll never see a business name in the inventor field of a patent--as, compared to say, the rest of the world where entities are regularly listed as the inventor.
Instead, patents, and in some senses a patent application, are treated like any other piece of personal property. That means that the owner can sell all or some part of the rights in that patent. Companies end up with ownership of patents in much the same way as they own anything else they purchase.
Before I get a bunch of responses that say companies just take the invention from their employees, I'll respond to that as well. Companies acquire assignment to inventions of employees usually by way of employment agreements, but this makes sense (in general). Your employer is paying you to do work. Since they're paying you, and you're doing their work, it follows that you're being fully compensated for your work (which includes your inventive activities).
I can't speak to whether the right to the fruit of ones own labor and creativity is a natural right, but, in the US, copyright is a CONSTITUTIONAL right. Art. I, Sec. 8, Cl. 8. It even predates freedom of speech in the US Constitution. It is one of the few times that the Constitution actually speaks to what CONGRESS is supposed to do.
Um, if she really has a patent over this, I'd assume that she'd have taken the extra step of patenting it in Japan as well. While it's a bit more expensive, it seems that a technology applicable like this is well worth the little bit of extra money.
I have not actually looked to see if a PCT application or a JP national phase application has been made. But, it would seem VERY likely.
Except that everyone citing willfulness as a reason is obviously NOT an intellectual property attorney. The willfulness test everyone citing doesn't include the recent Seagate case that has essentially done away with the old rule for enhanced damages. Enhanced damages (e.g. treble damages) now requires a recklessness standard.
And, contrary to the assertions here, under this standard new standard, lack of actual knowledge is arguably not a defense. If the infringer objectively should have known, then you can get enhanced damages.
Congrats, you likely breached your agreement and could be on the hook for damages to both your assignee and the publisher.
Just looking at one of the earlier cited copyright assignments, it contains this phrase:
I hereby warrant that I am the sole owner (or authorized agent of the copyright owner(s)), with the exception of third party material detailed in Part C below. Permission has been obtained for third party material included in this paper.
Also, your initial transfer to your friend would probably not cure. The publisher would probably be a subsequent purchaser in good faith since you failed to mention that your friend registered the copyright assignment. So, as a result, you could be on the hook to your assignee because they are now no longer the owner.
Finally, your assignment to your friend would only be valid if proper consideration were paid. You didn't even mention whether he paid you any money.
First, Texas has typically been favorable to plaintiffs of all types.
Second, the Eastern District of Texas has fashioned themselves as a Rocket Docket where litigation occurs much faster than elsewhere in the country. The Western District of Wisconsin is similarly situation.
There's, of course, lots of advantages to being in a rocket docket: few delays, short discovery, and quick results.
A lot of people feel that patents are like the lottery, but with slightly better odds. Most patents never see the light of day. Or if they do, not for very long. There's a lot of reasons for this: i) lack of sophistication of the inventor/owner; ii) shear cost of enforcement/negotiation; iii) duration of the patent prosecution; and iv) valuelessness of the resulting patent claims after prosecution.
However, on occasion, some patents DO become quite valuable. Those are often sought after licenses that command a pretty penny.
This is entirely DIFFERENT than the patent troll scenario (to the extent there are patent trolls). In those cases, the patent troll attempts to leverage a patent in excess of the marginal value of patent to a potential licensee (who is usually an entity with whom the patent troll does not compete in the market) using the threat of willful infringement, treble damages, and an injunction that halts sale of an already existing, entrenched product. Often the patent troll will seek licensees whose entire business rests on the accused infringing product.
Most definitely. Most of what I do is technology licensing.
For many companies, getting a license to a patent is just as good as owning the patent (and usually without the unknown risks/costs associated with patent prosecution). In particular, an exclusive patent license basically gives the same right to exploit an invention as a patent owner would have had, and stops others from doing the same.
The problem the slashdot crowd has is a statistical one. It only gets reported when the claims are so outrageous or so painfully obvious. But, this makes up an increasingly small portion of the patents currently in force. Many companies see great value in some patents.
aren't patents kind of a use it or lose it thing? Again, I'm a patent n00b so forgive me if I'm ignorant on these points.
No. That's a trademark.
in order to file for a patent you had to have some concrete evidence, such as prototypes, detailed schematics, etc
Reduction to practice per se is not required. If a patent application tries to claim something non-functional (like perpetual motion) the application will be rejected without some evidence of the success of an invention.
Also, it's very possible for a patent specification to be "not enabled." This was one of the arguments about the stem cell patents (they claimed lots of stem cells but only did it successfully with humans and a couple other animals, but not every animal). Most patents will pass this, though, if one reasonably skilled in the art could practice the invention disclosed.
In this case, there are plenty of schematics and diagrams and descriptions of how to do it. That's not an issue.
Well, just from a cursory review of the patent claims, I imagine infringement is going to turn on the construction of "the instrument audio signal."
Guitar Hero doesn't use a real instrument and the guitar doesn't produce sounds. The game system is responsive to button pushing not to the sounds produced by the guitar. Gibson's patent would be a very REALISTIC version of guitar hero.
Except that, your argument makes no sense. If a cash register is patentable, then it met the criteria for patentability including novelty and nonobviousness. Therefore, using a cash register to conduct business is also not obvious BEFORE a cash register exists. It's only obvious AFTER it comes into existence. There are lots of other nuances that are missed in your example, but I'll put them aside since that's not the point.
On to your issue with the "1-click" method. If the mechanism is novel and nonobvious and deserving of "some protection," then using the same mechanism is also going to be novel and nonobvious.
The real problem is when method claims rope in more than their physical embodiment--arguably one of the problem with the 1-click patent. The question then becomes whether the specification is so fully enabled to permit it to cover any method of clicking once to complete a purchase.
The problem is coming up with a GENERIC definition of a business method. Particular examples of business methods aren't difficult. The point being that most people know one when they see one, but describing the class generically risks including too much (e.g. other method type claims).
Also, business method is really only necessary for classification purposes. Beyond that, a "business method patent" is like every other type of patent and so must meet the same basic criteria as any other patent. There isn't a different standard.
Well, IAAAL (I am also a laywer), and I'll throw my hat into the ring too and say that the merger doctrine DOES NOT MAKE a Scrabble board unprotectable. At best, you've misconstrued the idea to fit what you want it.
Well, IAAAL (I am also a laywer), and I'll throw my hat into the ring too and say that the merger doctrine makes a Scrabble board unprotectable. At best, you've misconstrued the idea to fit what you want it.
Merger doctrine is usually explained as, "when the idea and the expression are inseparable then preventing another from copying the expression would monopolize the idea." Here its not clear that the "idea" is the board.
In this case, the idea is arguably "a crossword board game with special scoring squares and valued pieces." There are LOTS of different boards one could create. The Scrabble version is just one of many possible combinations of squares and dimensions. Thus, there would not be a monopoly on the idea, only the particular expression of that idea.
Moreover, the fact that the rules in the abstract are not protectable (though, again a particular expression of those rulse like the written instructions or directions might be) does not make the board any less protected. At worst, the board then is a derivative work of a particular set of rules governing a particular conception of the idea mentioned above. The merger doctrine does not make a work unprotectable because its based on an idea: every expression is based on an idea.
I do think that you have a better argument with the utility doctrine, but that wouldn't get you to the more arbitrary elements of board design. So, I wouldn't want to hang my hat on that argument.
Algorithms are not patentable. Particular implementations of algorithms are definitely patentable. Always have been. Machines that implement well-known equations from physics are definitely patentable.
In your case, implementing particular equations for the purpose of compression and encryption would definitely be patentable IF (that's a big IF) they also meet the other criteria for patentability.
Man, if only I had a moderation point. Very good post.
For every person decrying the PR missteps, the facts remain: 1) the documents were probably illegally disclosed: theft of trade secrets, industrial espionage, or mere conversion; 2) wikileaks was evasive in response to the bank's lawyers mere request for contacts in the applicable jurisdictions way before this made news; and 3) the bank had to do something to protect its rights.
It should come as no surprise to anyone that when you purposefully evade the legal system (no matter how frivolous the claim) you are likely to end up on the wrong end of a court order: an injunction, contempt ruling, or a default judgment, to name a few.
The lawyers think- "Having these documents out is bad. But we could bring a legal challenge to their availability. If having them out is bad, it stands to reason that having a chance to try to get them back in is good."
First, your analysis isn't how most lawyers think; it's how their clients think. And, let me be the first lawyer to say that many lawyers are considerably more cautious than their clients. Most lawyers don't rush to take action unless there's a really good reason.*
Also, many lawyers are familiar with the "Striesand effect" (if not by that name).
And, even if they're not cautious, lawyers aren't usually the ones steering the boat. At best, they're the guy on top of the ship screaming "iceberg!" And, then they're given unenviable task of being the person to also execute the very public actions.
"hey, we could sue this small public-interest nonprofit into oblivion, which would undoubtedly accomplish halting the spread of this information on the internet,"
I doubt, very highly, that suing wikileaks into oblivion was the advice given. Rather, the question was how to address espionage and trade secret issues. In most cases, enforcing your rights is the right choice since it'll never be heard (court enforced gag order) and the documents are returned or destroy. The riskier choice is leaving them out there for public consumption.
The problem in this case (as became obvious from the e-mail correspondence between the lawyer and K. Kim) was that 1) the documents here show illegal activity and have public interest; 2) the locations of the documents make enforcing a court order incredibly unlikely; and 3) the documents are housed at a sympathetic organization.
* A special note that trade secret and industrial espionage are usually good reasons to act quickly. As I note later, most of the time, getting a court to impose an order requiring the return or destruction of documents and a gag on further disclosure isn't difficult. Wikileaks, however, is organized in such a way that the typical response was ill-suited.
g. EULAs as discussed here are licences an end user must accept in order to use the software. The GPL is a copyright licence which you must accept in order to redistribute the software.
Both are copyright licenses.
Both have terms that impact an end user. In the case of the GPL, see the limitation of liability and the disclaimer of warranties.
Moreover, as discussed in earlier posts in this same chain, it's not clear exactly where the rights to "use" the software derive under the GPL. In one sense, the GPL is a mere restatement of the terms of an implied license to use the software. That implied license has few restrictions on mere use, but allows you to use the software as is.
It doesn't get any less restrictive than that. The restrictions only apply if you want to break copyright on the software.
Restrictiveness says nothing about whether it's a license.
Moreover, few EULAs (and few courts) would enforce a EULA with an absolute waiver of liability like the GPL includes. If the GPL weren't enforced as a contract with end users, then developers could potentially be on the hook for unlimited liability--not a good result for anyone.
Again, not quite right. (And people wonder why GPL is a headache)
The book thing is really asking for trouble. On the one hand, you acquire title to the tangible manifestation of a book. Thus, there are no further limits on your right to dispose of that copy of your book. This is sometimes called the first sale doctrine. You are also free to sell and transfer your copy of the book. On the other hand, there is an implied license to use the materials in the book. You would not be free to make copies from your copy and sell them.
If the GPL was relying on the first sale doctrine (as you suggest), then any number of sections in the GPL would be rendered meaningless--including the second sentence of section 9 (see below). Much of the language of "conveying" would be silly since you'd have the right to convey your copy without restriction anyway (benefit of having title).
Now, there is language about propagation (a word begging for dispute), but I assume that that only means to duplicate. Again, this right to duplicate (propagate) has its roots in the copyright laws. But if you're correct, then any restriction on the right to "propogate" seems silly since you can acquire infinite copies of a GPL program from a distributor and then transfer title. E.g. each time you want to send a copy, download it first from someone else. *blinks*
As the license says, it is explicitly affirming a right you already have.
And, where, pray tell, did those "rights" come from? The GPL simultaneously implies rights to end users and yet asserts copyrights against propagators. Consider the following.
One does not ordinarily have the "right" to "use" copyrighted works without permission. In this sense, "use" means one of the exclusive rights in a copyright. They come from some license. When one buys a book, you have a right to "use" the book, but you don't have the right to reproduce it. One could understand this to be an IMPLIED license.
The GPL's language is, in contract language, a RESTATEMENT of this implied license. You DO accept the terms of that IMPLIED license when you download or run it. Of course, the license (but for the warranties and limitations of liability, a topic I discuss below) does not put any other limitation on use. So, it's not like acceptance/rejection means much. Nevertheless, it is a license.
Now, as to the warranties and limitation of liability. It would be interesting to see how a court would construe these clauses if you are correct (and if the GPL's inconsistency is correct).
If it's true that the GPL does not form a contract with an end user, developer's beware: you're on the hook for unlimited liability for anything that you contribute to a GPL product. Worse yet, you're not getting much consideration for that unlimited liability.
Moreover, if it's true that the GPL doesn't form a contract with end users, that software had better damn well work. Otherwise, you're potentially on the hook for warranty claims: non-infringement, fitness for a purpose, merchantability, etc.
I think that the parent's post is probably one of the favorite myths of this site. And, as a matter of law, it is simply not true. When you "accept" GPL software, you "accept" a few very important things:
2. Basic Permissions.
All rights granted under this License are granted for the term of copyright on the Program, and are irrevocable provided the stated conditions are met. This License explicitly affirms your unlimited permission to run the unmodified Program. The output from running a covered work is covered by this License only if the output, given its content, constitutes a covered work. This License acknowledges your rights of fair use or other equivalent, as provided by copyright law.
You may make, run and propagate covered works that you do not convey, without conditions so long as your license otherwise remains in force.
***
15. Disclaimer of Warranty.
THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. 16. Limitation of Liability.
IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MODIFIES AND/OR CONVEYS THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In this sense, it is an agreement with END USERS. Among other things, it grants to the end user the permission to run the software. It also addresses distribution, but that is not the point.
I also states that you get it without any warranties (non-infringement, merchantability, fitness for a purpose, etc.). And it states that even if you think you had damages because of the use of the software, you'd have no right to recover anything.
I'll point out, most people think that limitations on liability that limit your damages to $0 as some of the most heinous parts of EULAs.
If you don't agree to those terms, you can reject the offer.
Even under the terms of most EULAs (and most case law), a EULA is only effective if you have some right to reject: return, refund, etc. ** Contrary to what some think, that right to reject doesn't have to be "easy" or obvious. **
Simply not true. Under US law, you can make something public domain by simply stating that it is so. "I make this work part of the public domain." Once you say that, you can never retract that offer. Very few people do that though, and even for those that do, most don't leave enough of a record to make it clear to a subsequent user.
There are lots of issues, of course, with allowing something to merely be public domain. The biggest one is the right to attribution. And, relatedly, a third party can take that work and obtain a copyright on a derivative work that includes it without any compensation to the originator (the copyright would not extend to the original work, but most people don't care too much about that).
That has precisely nothing to do with the role of patents.
Not quite right, depending on how you look at it. Patents require disclosure and the law presumes that once there's disclosure it's available for other to use. The purpose of the patent right is precisely to encourage that disclosure while briefly permitting the disclosing party ability to exclude others from practicing the patented invention. In this sense, it does prevent others from capitalizing on another's inventions.
You are right, though, that the patent is meant to create an incentive in order to promote the useful arts. That incentive has everything to do with the ability to prevent a second-comer from capitalizing on the effort of another person.
If that were the idea behind patents, then independent invention would be an absolute defence.
There's not a defense of independent invention for many different reasons. One would be to encourage faster disclosure. If independent invention were really a defense there would be absolutely no reason to disclose. So no, you're wrong about this.
Patents encourage those crossing this common ground to stake a claim that amounts to a trap against those crossing this same ground as they inevitably will.
I will not dispute that patents are granted for trivial changes, but this is a line drawing problem. One that courts, commentators and lawyers struggle with all of the time. The question though is who should bear the burden for showing that this is trivial? In an ideal world, the adversarial process of patent examination would suffice. However, there's not enough time or money in the USPTO to give a perfect examination to every application.
We should be fostering a free market for new technologies, not imposing artificial monopolies that stifle technological progress.
No offense, but this is just gibberish. Among other things, most patents do not create monopolies. In the most basic sense, a monopoly requires many buyers and only one seller. There are almost no patents that can successfully exclude all others in a field. Furthermore, contrary to what people think, enforcing patents is an expensive, time consuming proposition.
Few patent owners ever litigate or ever commercialize their patents. It's called a patent lottery for a reason.
Quite honestly, I hope that someday a law will get passed that bans universities from patenting the products of their research.
Except for the fact that current federal law actually makes it a point to force universities to get patent protection or lose those rights to the federal government. It's called Bayh-Dole.
And contrary to your assertions, the whole point is that by giving the universities the right to acquire title to the invention and then imposing commercialization obligations upon them means more of the inventions actually will get to market. Now its true, it some cases this probably doesn't work, for example, a blockbuster technology that everyone would adopt. But that's not most technology. Indeed, doing something that everyone else can do is not usually very profitable.
The reason the patent is a good tool for this is actually a result of the market. Most companies want patent protection because it gives them an advantage in the marketplace. So by allowing universities to patent those inventions, they have a tool to license the technology in order to commercialize it--basically giving the licensing company an extra incentive to actually exploit the technology.
As a significant note, you can read about how infrequently technology was commercialized prior to Bayh-Dole. The numbers are quite staggering. Most "inventions" were never licensed. The federal government retained title to all of its funded inventions, and very little commercialization was done.
...Imaginary Property merely gets in the way. It hampers me daily...
So you mean that patents are working?
In all seriousness though, you're hardly "innovating" in any sense of the word if you're doing things that have been described by someone else in a patent filed so long ago that it's issued. That's just about the craziest reasoning I've seen on slashdot.
But more to your original point, the idea of patents is to prevent "parasitic maggots" that capitalize, copy, and lazily "innovate" using someone else's effort. So, rather than the patent being parasitic, the system that you advocate for actually promotes and fosters laziness all the while minimizing the reward to the originator.
And, there is no system of patents that guarantees payment in perpetuity. Once you consider the fact that it takes years to get through the patent office, in many fields the lifetime of a patent is relatively short in business terms. **
Now, I'm not going to defend EVERY patent out there. Hell, I've seen my fair share that are incomprehensible and/or entirely obvious (both in the legal and technical sense). This does not seem to be the case here--at least not yet.
I'll probably get modded down as a troll and blow what karma I do have since you voice a very popular opinion. But, I'll do it anyway.
[** Copyright, on the other hand, does come much closer. When you're discussing about protecting anything at the "author's life+" then you're talking about a long time relative to any particular individual.]
Slashdot Mirror
Even though you're marked redundant, I'll respond.
It's not unconstitutional because patents are granted to the inventors. You'll never see a business name in the inventor field of a patent--as, compared to say, the rest of the world where entities are regularly listed as the inventor.
Instead, patents, and in some senses a patent application, are treated like any other piece of personal property. That means that the owner can sell all or some part of the rights in that patent. Companies end up with ownership of patents in much the same way as they own anything else they purchase.
Before I get a bunch of responses that say companies just take the invention from their employees, I'll respond to that as well. Companies acquire assignment to inventions of employees usually by way of employment agreements, but this makes sense (in general). Your employer is paying you to do work. Since they're paying you, and you're doing their work, it follows that you're being fully compensated for your work (which includes your inventive activities).
I can't speak to whether the right to the fruit of ones own labor and creativity is a natural right, but, in the US, copyright is a CONSTITUTIONAL right. Art. I, Sec. 8, Cl. 8. It even predates freedom of speech in the US Constitution. It is one of the few times that the Constitution actually speaks to what CONGRESS is supposed to do.
Everything else you say is gibberish.
Um, if she really has a patent over this, I'd assume that she'd have taken the extra step of patenting it in Japan as well. While it's a bit more expensive, it seems that a technology applicable like this is well worth the little bit of extra money.
I have not actually looked to see if a PCT application or a JP national phase application has been made. But, it would seem VERY likely.
Except that everyone citing willfulness as a reason is obviously NOT an intellectual property attorney. The willfulness test everyone citing doesn't include the recent Seagate case that has essentially done away with the old rule for enhanced damages. Enhanced damages (e.g. treble damages) now requires a recklessness standard.
And, contrary to the assertions here, under this standard new standard, lack of actual knowledge is arguably not a defense. If the infringer objectively should have known, then you can get enhanced damages.
Just looking at one of the earlier cited copyright assignments, it contains this phrase:
Also, your initial transfer to your friend would probably not cure. The publisher would probably be a subsequent purchaser in good faith since you failed to mention that your friend registered the copyright assignment. So, as a result, you could be on the hook to your assignee because they are now no longer the owner.
Finally, your assignment to your friend would only be valid if proper consideration were paid. You didn't even mention whether he paid you any money.
First, Texas has typically been favorable to plaintiffs of all types.
Second, the Eastern District of Texas has fashioned themselves as a Rocket Docket where litigation occurs much faster than elsewhere in the country. The Western District of Wisconsin is similarly situation.
There's, of course, lots of advantages to being in a rocket docket: few delays, short discovery, and quick results.
A lot of people feel that patents are like the lottery, but with slightly better odds. Most patents never see the light of day. Or if they do, not for very long. There's a lot of reasons for this: i) lack of sophistication of the inventor/owner; ii) shear cost of enforcement/negotiation; iii) duration of the patent prosecution; and iv) valuelessness of the resulting patent claims after prosecution.
However, on occasion, some patents DO become quite valuable. Those are often sought after licenses that command a pretty penny.
This is entirely DIFFERENT than the patent troll scenario (to the extent there are patent trolls). In those cases, the patent troll attempts to leverage a patent in excess of the marginal value of patent to a potential licensee (who is usually an entity with whom the patent troll does not compete in the market) using the threat of willful infringement, treble damages, and an injunction that halts sale of an already existing, entrenched product. Often the patent troll will seek licensees whose entire business rests on the accused infringing product.
Most definitely. Most of what I do is technology licensing.
For many companies, getting a license to a patent is just as good as owning the patent (and usually without the unknown risks/costs associated with patent prosecution). In particular, an exclusive patent license basically gives the same right to exploit an invention as a patent owner would have had, and stops others from doing the same.
The problem the slashdot crowd has is a statistical one. It only gets reported when the claims are so outrageous or so painfully obvious. But, this makes up an increasingly small portion of the patents currently in force. Many companies see great value in some patents.
No. That's a trademark.
Reduction to practice per se is not required. If a patent application tries to claim something non-functional (like perpetual motion) the application will be rejected without some evidence of the success of an invention.
Also, it's very possible for a patent specification to be "not enabled." This was one of the arguments about the stem cell patents (they claimed lots of stem cells but only did it successfully with humans and a couple other animals, but not every animal). Most patents will pass this, though, if one reasonably skilled in the art could practice the invention disclosed.
In this case, there are plenty of schematics and diagrams and descriptions of how to do it. That's not an issue.
Well, just from a cursory review of the patent claims, I imagine infringement is going to turn on the construction of "the instrument audio signal."
Guitar Hero doesn't use a real instrument and the guitar doesn't produce sounds. The game system is responsive to button pushing not to the sounds produced by the guitar. Gibson's patent would be a very REALISTIC version of guitar hero.
Except that, your argument makes no sense. If a cash register is patentable, then it met the criteria for patentability including novelty and nonobviousness. Therefore, using a cash register to conduct business is also not obvious BEFORE a cash register exists. It's only obvious AFTER it comes into existence. There are lots of other nuances that are missed in your example, but I'll put them aside since that's not the point.
On to your issue with the "1-click" method. If the mechanism is novel and nonobvious and deserving of "some protection," then using the same mechanism is also going to be novel and nonobvious.
The real problem is when method claims rope in more than their physical embodiment--arguably one of the problem with the 1-click patent. The question then becomes whether the specification is so fully enabled to permit it to cover any method of clicking once to complete a purchase.
The problem is coming up with a GENERIC definition of a business method. Particular examples of business methods aren't difficult. The point being that most people know one when they see one, but describing the class generically risks including too much (e.g. other method type claims).
Also, business method is really only necessary for classification purposes. Beyond that, a "business method patent" is like every other type of patent and so must meet the same basic criteria as any other patent. There isn't a different standard.
Big ol' typo.
Well, IAAAL (I am also a laywer), and I'll throw my hat into the ring too and say that the merger doctrine makes a Scrabble board unprotectable. At best, you've misconstrued the idea to fit what you want it.
Merger doctrine is usually explained as, "when the idea and the expression are inseparable then preventing another from copying the expression would monopolize the idea." Here its not clear that the "idea" is the board.
In this case, the idea is arguably "a crossword board game with special scoring squares and valued pieces." There are LOTS of different boards one could create. The Scrabble version is just one of many possible combinations of squares and dimensions. Thus, there would not be a monopoly on the idea, only the particular expression of that idea.
Moreover, the fact that the rules in the abstract are not protectable (though, again a particular expression of those rulse like the written instructions or directions might be) does not make the board any less protected. At worst, the board then is a derivative work of a particular set of rules governing a particular conception of the idea mentioned above. The merger doctrine does not make a work unprotectable because its based on an idea: every expression is based on an idea.
I do think that you have a better argument with the utility doctrine, but that wouldn't get you to the more arbitrary elements of board design. So, I wouldn't want to hang my hat on that argument.
Algorithms are not patentable. Particular implementations of algorithms are definitely patentable. Always have been. Machines that implement well-known equations from physics are definitely patentable.
In your case, implementing particular equations for the purpose of compression and encryption would definitely be patentable IF (that's a big IF) they also meet the other criteria for patentability.
Man, if only I had a moderation point. Very good post.
For every person decrying the PR missteps, the facts remain: 1) the documents were probably illegally disclosed: theft of trade secrets, industrial espionage, or mere conversion; 2) wikileaks was evasive in response to the bank's lawyers mere request for contacts in the applicable jurisdictions way before this made news; and 3) the bank had to do something to protect its rights.
It should come as no surprise to anyone that when you purposefully evade the legal system (no matter how frivolous the claim) you are likely to end up on the wrong end of a court order: an injunction, contempt ruling, or a default judgment, to name a few.
First, your analysis isn't how most lawyers think; it's how their clients think. And, let me be the first lawyer to say that many lawyers are considerably more cautious than their clients. Most lawyers don't rush to take action unless there's a really good reason.*
Also, many lawyers are familiar with the "Striesand effect" (if not by that name).
And, even if they're not cautious, lawyers aren't usually the ones steering the boat. At best, they're the guy on top of the ship screaming "iceberg!" And, then they're given unenviable task of being the person to also execute the very public actions.
I doubt, very highly, that suing wikileaks into oblivion was the advice given. Rather, the question was how to address espionage and trade secret issues. In most cases, enforcing your rights is the right choice since it'll never be heard (court enforced gag order) and the documents are returned or destroy. The riskier choice is leaving them out there for public consumption.
The problem in this case (as became obvious from the e-mail correspondence between the lawyer and K. Kim) was that 1) the documents here show illegal activity and have public interest; 2) the locations of the documents make enforcing a court order incredibly unlikely; and 3) the documents are housed at a sympathetic organization.
* A special note that trade secret and industrial espionage are usually good reasons to act quickly. As I note later, most of the time, getting a court to impose an order requiring the return or destruction of documents and a gag on further disclosure isn't difficult. Wikileaks, however, is organized in such a way that the typical response was ill-suited.
Both are copyright licenses.
Both have terms that impact an end user. In the case of the GPL, see the limitation of liability and the disclaimer of warranties.
Moreover, as discussed in earlier posts in this same chain, it's not clear exactly where the rights to "use" the software derive under the GPL. In one sense, the GPL is a mere restatement of the terms of an implied license to use the software. That implied license has few restrictions on mere use, but allows you to use the software as is.
Restrictiveness says nothing about whether it's a license.
Moreover, few EULAs (and few courts) would enforce a EULA with an absolute waiver of liability like the GPL includes. If the GPL weren't enforced as a contract with end users, then developers could potentially be on the hook for unlimited liability--not a good result for anyone.
Again, not quite right. (And people wonder why GPL is a headache)
The book thing is really asking for trouble. On the one hand, you acquire title to the tangible manifestation of a book. Thus, there are no further limits on your right to dispose of that copy of your book. This is sometimes called the first sale doctrine. You are also free to sell and transfer your copy of the book. On the other hand, there is an implied license to use the materials in the book. You would not be free to make copies from your copy and sell them.
If the GPL was relying on the first sale doctrine (as you suggest), then any number of sections in the GPL would be rendered meaningless--including the second sentence of section 9 (see below). Much of the language of "conveying" would be silly since you'd have the right to convey your copy without restriction anyway (benefit of having title).
Now, there is language about propagation (a word begging for dispute), but I assume that that only means to duplicate. Again, this right to duplicate (propagate) has its roots in the copyright laws. But if you're correct, then any restriction on the right to "propogate" seems silly since you can acquire infinite copies of a GPL program from a distributor and then transfer title. E.g. each time you want to send a copy, download it first from someone else. *blinks*
So, again, not quite right.
And, where, pray tell, did those "rights" come from? The GPL simultaneously implies rights to end users and yet asserts copyrights against propagators. Consider the following.
One does not ordinarily have the "right" to "use" copyrighted works without permission. In this sense, "use" means one of the exclusive rights in a copyright. They come from some license. When one buys a book, you have a right to "use" the book, but you don't have the right to reproduce it. One could understand this to be an IMPLIED license.
The GPL's language is, in contract language, a RESTATEMENT of this implied license. You DO accept the terms of that IMPLIED license when you download or run it. Of course, the license (but for the warranties and limitations of liability, a topic I discuss below) does not put any other limitation on use. So, it's not like acceptance/rejection means much. Nevertheless, it is a license.
Now, as to the warranties and limitation of liability. It would be interesting to see how a court would construe these clauses if you are correct (and if the GPL's inconsistency is correct).
If it's true that the GPL does not form a contract with an end user, developer's beware: you're on the hook for unlimited liability for anything that you contribute to a GPL product. Worse yet, you're not getting much consideration for that unlimited liability.
Moreover, if it's true that the GPL doesn't form a contract with end users, that software had better damn well work. Otherwise, you're potentially on the hook for warranty claims: non-infringement, fitness for a purpose, merchantability, etc.
Frankly, I hope you're wrong.
I think that the parent's post is probably one of the favorite myths of this site. And, as a matter of law, it is simply not true. When you "accept" GPL software, you "accept" a few very important things:
In this sense, it is an agreement with END USERS. Among other things, it grants to the end user the permission to run the software. It also addresses distribution, but that is not the point.
I also states that you get it without any warranties (non-infringement, merchantability, fitness for a purpose, etc.). And it states that even if you think you had damages because of the use of the software, you'd have no right to recover anything.
I'll point out, most people think that limitations on liability that limit your damages to $0 as some of the most heinous parts of EULAs.
If you don't agree to those terms, you can reject the offer.
Even under the terms of most EULAs (and most case law), a EULA is only effective if you have some right to reject: return, refund, etc. ** Contrary to what some think, that right to reject doesn't have to be "easy" or obvious. **
Simply not true. Under US law, you can make something public domain by simply stating that it is so. "I make this work part of the public domain." Once you say that, you can never retract that offer. Very few people do that though, and even for those that do, most don't leave enough of a record to make it clear to a subsequent user.
There are lots of issues, of course, with allowing something to merely be public domain. The biggest one is the right to attribution. And, relatedly, a third party can take that work and obtain a copyright on a derivative work that includes it without any compensation to the originator (the copyright would not extend to the original work, but most people don't care too much about that).
Not quite right, depending on how you look at it. Patents require disclosure and the law presumes that once there's disclosure it's available for other to use. The purpose of the patent right is precisely to encourage that disclosure while briefly permitting the disclosing party ability to exclude others from practicing the patented invention. In this sense, it does prevent others from capitalizing on another's inventions.
You are right, though, that the patent is meant to create an incentive in order to promote the useful arts. That incentive has everything to do with the ability to prevent a second-comer from capitalizing on the effort of another person.
There's not a defense of independent invention for many different reasons. One would be to encourage faster disclosure. If independent invention were really a defense there would be absolutely no reason to disclose. So no, you're wrong about this.
I will not dispute that patents are granted for trivial changes, but this is a line drawing problem. One that courts, commentators and lawyers struggle with all of the time. The question though is who should bear the burden for showing that this is trivial? In an ideal world, the adversarial process of patent examination would suffice. However, there's not enough time or money in the USPTO to give a perfect examination to every application.
No offense, but this is just gibberish. Among other things, most patents do not create monopolies. In the most basic sense, a monopoly requires many buyers and only one seller. There are almost no patents that can successfully exclude all others in a field. Furthermore, contrary to what people think, enforcing patents is an expensive, time consuming proposition.
Few patent owners ever litigate or ever commercialize their patents. It's called a patent lottery for a reason.
And contrary to your assertions, the whole point is that by giving the universities the right to acquire title to the invention and then imposing commercialization obligations upon them means more of the inventions actually will get to market. Now its true, it some cases this probably doesn't work, for example, a blockbuster technology that everyone would adopt. But that's not most technology. Indeed, doing something that everyone else can do is not usually very profitable.
The reason the patent is a good tool for this is actually a result of the market. Most companies want patent protection because it gives them an advantage in the marketplace. So by allowing universities to patent those inventions, they have a tool to license the technology in order to commercialize it--basically giving the licensing company an extra incentive to actually exploit the technology.
As a significant note, you can read about how infrequently technology was commercialized prior to Bayh-Dole. The numbers are quite staggering. Most "inventions" were never licensed. The federal government retained title to all of its funded inventions, and very little commercialization was done.
So you mean that patents are working?
In all seriousness though, you're hardly "innovating" in any sense of the word if you're doing things that have been described by someone else in a patent filed so long ago that it's issued. That's just about the craziest reasoning I've seen on slashdot.
But more to your original point, the idea of patents is to prevent "parasitic maggots" that capitalize, copy, and lazily "innovate" using someone else's effort. So, rather than the patent being parasitic, the system that you advocate for actually promotes and fosters laziness all the while minimizing the reward to the originator.
And, there is no system of patents that guarantees payment in perpetuity. Once you consider the fact that it takes years to get through the patent office, in many fields the lifetime of a patent is relatively short in business terms. **
Now, I'm not going to defend EVERY patent out there. Hell, I've seen my fair share that are incomprehensible and/or entirely obvious (both in the legal and technical sense). This does not seem to be the case here--at least not yet.
I'll probably get modded down as a troll and blow what karma I do have since you voice a very popular opinion. But, I'll do it anyway.
[** Copyright, on the other hand, does come much closer. When you're discussing about protecting anything at the "author's life+" then you're talking about a long time relative to any particular individual.]