I can take the patent law questions. Since patents are territorial and granted on applications submitted to that jurisdiction, it'll be the laws where an application are submitted. It doesn't really matter "where" you are when you do the inventing. If you invent something in Canada, you can still patent it in the US.
The more interesting question has to do with those acts that might constitute "prior art" that are limited by territory, for example "in public use or on sale in [the United States]" for Sec. 102(b) purposes.
As for Nation Y's claim to the invention, it's possible, I suppose, that there could be a law of a country that would require assignment of an invention to the government. I'll point out, though, that would probably be pretty unusual and difficult to enforce internationally. It would create some very interesting questions of title if a patent granted in a foreign jurisdiction were ever in dispute.
The more likely result is that a scientist on the space station already has an obligation to assign their inventions to the government supporting their trip to the ISS (as do most employees of most companies).
Actually, you've got it just backwards. Patents are not granted to shelter new inventions (that would require some time traveling, I'd imagine). Instead, patents are granted to reward the inventors of new inventions that elect to disclose the invention publicly. In reality, it shouldn't matter how you use your "reward." If the government gave you $20M instead of a period of exclusivity, it's unlikely that part of the deal would be that you can only use the $20M (a figure that probably is way too high on average, btw) to commercialize the patent. That would be wildly unfair.
Per the patent laws, patents are personal property. You can buy, sell and divide up patents like any other personal property. This only makes sense. If an independent inventor can't figure out how to make money making or using the patent himself, he should be able to sell it to someone that can for money.
This is the most specious of arguments. Not only is it wrong; it's entirely misleading.
In this case, "or later" allows the distributor to choose how to distribute the software. GPL's contractual rights and obligations run to the person doing the distribution. The originator will only be bound by GPLv2. Anyone distributing the software after being distributed under GPLv3 will be bound by the new contract.
So no, it is not effective "already" under the GPLv3.
Arguably this leads to its own problems. You could "effectively" have two (or, in the future, more) different licenses applying to the same project.
Let's be clear. You're talking about persuasive authority, not precedent. It will only be precedent if it gets to a conclusion of law at trial and then gets appealed (both are very small minority of cases). If there's no trial, there's no authority (persuasive or otherwise). If there's no appeal, at best the case becomes persuasive authority, but no other court will be bound by the conclusion.
If the case is appealed and the legal issues on appeal are GPL issues, then, yes, there could be precedent.
IAAL. The GPL is a contract. Anyone saying otherwise doesn't know what a contract from a promise. Indeed, I've read this claim so many times on slashdot. And, frankly, I think it's a reaction to the hatred towards EULAs. However, it is a total fiction. The GPL is a contract. I wager that most lawyers (if not every lawyer) would see the GPL as a contract.
Typically, a contract has three parts: offer, acceptance and consideration.
The offer is easy: "would you like this code that you can distribute subject to these conditions?" The consideration is easy: you get code and I will get any source code if you decide to distribute.
Acceptance is a bit harder. There isn't an obvious exchange of money or other pecuniary interest. There's not even a signature. Instead what you probably have is performance. This happens all of the time in the real world. Performance can be acceptance. There's plenty of cases on this point.
[As an aside, note that a signature is a requirement for a contract. It is neither necessary or sufficient (in most cases). You can sign a piece of paper, but unless there's consideration (and offer and acceptance) you don't have a contract. This is another legal fiction that I see all of the time on Slashdot.]
In the instant case, the real question in this case is whether the cause of action sounds in contract or in copyright. I would be mildly surprised if a court found a copyright infringement claim. Courts have attempted to answer this question by asking whether the party exceeded the scope of the license or whether they merely breached a condition of the license. For example, distributing a copyrighted work without the right to distribute. Under the GPL, there is a BROAD grant.
In cases that are said to sound in contract, courts ask whether there is a breach merely of a condition. For example, one court found that distribution without the requirement of attribution was a breach of contract; not copyright infringement.
IAAL, and, frankly, nothing stops a company like e360 from suing you, or, indeed, winning if they are able to obtain a default judgment like in this case. The reason why that seems genuinely unlikely is because you're not a big target and any damages would be pretty small.
Reading the opinion, the judge seemed to recognize that Spamhaus availed itself of the U.S. court systems and then, in a really stupid move, wanted out and gave up its rights in the process. Unsurprisingly, it lost at the district court, and Spamhaus was amazingly well-advised by the judge of the result of its actions at the time. Spamhaus only then got mad when it realized that it in fact might be subject to sanctions by the courts.
The 7th circuit gave Spamhaus a lot to be thankful for. And this opinion leaves a lot open for the district court now. Among other things, on remand to the district court, the district court has to: 1. do a better job of fact finding with regards to damages; and 2. go through the full analysis regarding injunctive relief.
What's also interesting about the injunctive relief decision is that while spamhaus may not use the same criteria to list e360, they can come up with a new and different reason to re-add them to the list.
Let's be clear here "distribution" is only one of the enumerated copyright rights. Your scenario invokes at least one other right: duplication. The other party's installation, use, etc. would probably raise yet others.
Also, even reading Nimmer's explanation of the distribution right, you should note how many issues there would be: "limited group" (how limited?), "limited purpose" (what was the limited purpose of your distribution?), on and on.
Finally, your question about the EULA is pretty fact specific. It may or may not be true that it is only effective upon execution. I don't think we have enough details, but the questions would be: where and when you had reasonable notice of the relevant terms.
... on the merits of this case yet. That means an examiner HASN'T yet looked at the application.
This is merely the 18 month publication of the application. It's very likely that this isn't going to issue the way it is now. It's very typical to start with the broadest claims that seem reasonable.
It's too late now to file 3rd party materials. So, watch the application through public PAIR and once you see a notice of allowance, then start to scream. Don't worry, that'll probably won't happen, if at all, until like another 2 years.
Prior art DOES go to the idea of obviousness, unless you're going to disagree with the Supreme Court. SCOTUS, in the Graham case stated the following factors as relevant for obviousness:
1. Scope and content of the prior art
2. Level of ordinary skill in the prior art
3. Differences between the claimed invention and the prior art and
4. Any other objective evidence of nonobviousness.
And, just as a refresher, it is NOT enough to point to disparate sources to hit each element of a claim. You need something more than that: it used to be a "teaching, suggestion or motivation" to combine the art. Even under KSR, vague assertions are not going to be enough.
You of course are right that KSR may have changed the rules somewhat, but that really remains to be seen. That is, most people seem to agree that KSR isn't a watershed decision for obviousness. One challenging a patent must still overcome the presumption of validity, and provide some reason to take the next step from the prior art that doesn't disclose all of the elements.
Also, it's likely that this situation would be distinguishable from the KSR opinion. Unlike KSR, this situation doesn't seem like it is merely taking two knowns and creating a mere combination without any synergies. There are "obvious" benefits, for example, over your mere paper version.
But back to the point of the original post, what evidence would YOU provide that shows that this idea is in fact "clearly obvious." You need something more than vague assertions about an organized geographical search system. Moreover, it's not "obvious" to me that merely putting a print version of organized heirarchy online would satisfy all of the elements.
Let's put slashdot's money where its mouth usually is. Here's the very first claim:
A system which associates on-line information with geographic areas, said system comprising:
a computer network wherein a plurality of computers have access to said computer network; and
an organizer executing in said computer network, wherein said organizer is configured to receive search requests from any one of said plurality of computers, said organizer comprising:
a database of information organized into a hierarchy of geographical areas wherein entries corresponding to each one of said hierarchy of geographical areas is further organized into topics; and
a search engine in communication with said database, said search engine configured to search geographically and topically, said search engine further configured to elect one of said hierarchy of geographical areas prior to selection of a topic so as to provide a geographical search area wherein within said hierarchy of geographical areas at least one of said entries associated with a border geographical area is dynamically replicated into at least one narrower geographical area, said search engine further configure to search said topics within said selected geographical search area.
To invalidate it as obvious, you have to find one or more documents/patents or example of a system that contain all of the elements of the claim (or enough sources that show that it was obvious to combine).
Remember, you have to be able to find documents that existed on or before the date of filing Jan 31, 1996.
Frankly, it would probably be easier to show that the disclosure was not enabling. But, let's have at it.
Except that those EULAs very often don't merely state that "you accept by pressing the accept button." Most state that either keeping the hardware or using the hardware is essentially the SAME AS pressing accept. There is NO dispute in courts that "performance" can be used to show acceptance.
Moreover, the worst part of your argument is that you acknowledge being AWARE of the EULA and choosing to ignore it. I would suggest that you refrain from offering legal advice.
On the other hand, there may be lots of other evidence that you could assert to show a contract is unenforceable, but that would require a more particular set of facts.
Another really bad argument. First, they really aren't that hard to read. If you don't understand consequential damages, arbitration, limitation of liability, warranties, choice of venue, choice of law, attorney's fees, etc., then hire yourself a lawyer.
Second, there is no requirement that you read OR understand a contract. There is no real concept of "informed consent" in contract law. You could try to argue that you lack the capacity to form a contract, but that's a sure loser.
Finally, EULAs are sometimes just as important to you and "throwing them all out" would be idiotic. They often set out things like your warranty coverage and your rights to use software (your "license") that you otherwise wouldn't have the right. Most importantly, it keeps things CHEAPER for you. If every computer/software company had unlimited liability, you would probably be spending considerably more for your purchases.
This is half ignorant. First, any distribution of something licensed under GPL/LGPL must be accompanied by certain terms. For example, the GPL/LGPL contain a disclaimer of warranty.
Second, the GPL actually GRANTS the end user rights to do certain thing. Among other things, it gives you the right to obtain the source code. Those rights, however, do impose obligations upon you as well: such as any distribution/modification is subject to those same terms.
So, in reality, it's not wrong to say that you have to agree to certain parts of the GPL.
I hate the parent's comment. It shows up in every slashdot thread whenever the story is about a contract question. The problem is that it's not legally, or even practically-speaking, accurate. Moreover, the fact that it gets modded up to +5 is really frustrating.
I have no idea why people think that one actually has to sign anything to form a contract. Most US states have no such requirement. The closest thing to any such requirement is in the statute of frauds, but the statute of frauds is applied very narrowly (the US doesn't typically like formalities).
Contracts are formed all the time without signing anything. More often than not, the only questions for a court in a contract between businesses and consumers are: 1) was there proper notice of the terms and 2) are the terms unconscionable?
In this case, there is a good argument there was not proper notice.
Nevertheless, I think anyone that posts "he didn't sign anything" should be modded like "first post"ers.
You can patent anything under the sun made by man.
However, there are a lot of reasons NOT to patent something.
First, you might not be able to patent anything. the composites and alloys might not be new, novel or nonobvious. Therefore, filing a patent application might spoil a perfectly good secret and you get no protection since it'll be published
Second, patents have a really short lifetime (now, 20 years from the application date). On the other hand, trade secrets gave be indefinite. There's no disclosure requirements.
Finally, determining the composite/alloy (or the process to make it) may be impossible merely by examining the finished product. A number of companies working with carbon fiber materials and some other exotic materials quickly realized that it may be impossible to tell what they consist of with any degree of accuracy without entirely ruining the substance. This is a perfect place for a trade secret (you get the same thing happening with nanotech inventions).
Actually, there's nothing that says that you can't use an inanimate object as an agent. In fact, most e-signature laws recognize this fact. In some sense, every time you click "accept" on a license agreement you have in fact given the machine the power to accept the terms of a license agreement.
It is an interesting question whether you could actually make an implied contract case out of these facts. The issue a court would have to decide is whether the owner of the router intended the router to be its agent for purposes of granting access to the network. One could see how a court might infer offer, acceptance and assent. Though, this would clearly be a novel legal theory and should not be interpreted as legal advice.
True. I said it often has that result. You don't need to look to software to see companies inventing around. It's happening in almost every competing product and design. However, that doesn't mean that there IS another a way.
Also, I think that the point is not that you implement "work arounds" but rather that you "invent around" a patent. However, as with everything, it's an economic decision. In the case where there is NOT a viable work around, enter license agreements or see the third point.
As to my third claim, what can I say, market forces?
As an aside, you can obvious tell the bias of the slashdot crowd given the fact that the worst posts that are the most virulently anti-patent seem to start out at 2+.
Well, your logic is somewhat circular. If it is legally determined "obvious" then, yes, it'll be invalid. But the fact that a patent covers the easy way to do something doesn't make it legally "obvious" or "invalid." I'd also argue that it's not at all clear which way the fact that there is not another easy way cuts. It could very well mean that the putative-inventor was actually a genius and found the only reasonable way. That's something that should enjoy a benefit.
Finally, as with any other sort of trespass, you can usually pay for the right to use the easy way. In real property they're called easements. In the IP world, it's called a license. The good thing about the IP world is that (at least for patents) you're not paying for forever.
The patent system incentivizes would-be infringers to "invent around." Indeed, it's arguably one of the goals of the patent system. That is, one of the benefits of having patents is that it forces inventors to invent some more. This has lots of benefits: * it requires others to think about the problem more * it often produces newer, better, more efficient solutions * it opens up opportunities in fields where it would have been cost prohibitive to even explore (but for the "rent" imposed by a patent)
The same thing has been going on for decades in every industry, not just software. There are entire engineering firms that are dedicated to just that pursuit.
People need to quit repeating this idea that no government can get a copyright. It's only the federal government that can't get a copyright. State governments can get all the copyrights that they want.
And since the I.D. wasn't produced by the state government, it's copyrightable.
First, on the US gov't point, the U.S. government doesn't issue driver's licenses yet. The states do. That provision of the copyright law doesn't apply to the states.
Second, the fact that something is a derivative work doesn't mean that it's not copyrightable. Indeed, most works are derivative works.
The proper question would be whether the material added to the state driver's license was sufficiently original or creative to constitute a copyrightable work.
The parent doesn't follow the logic all the way through to the end because if it did one would quickly realize that most every machine is essentially the embodiment of math.
Moreover, it doesn't take a genius to describe an algorithm as a machine--it's a trivial exercise and so trivial that patent folks usually don't talk about "patents on software" but rather patents on methods implemented by computers.
A reinvention would be a huge step backwards. Just putting your brain to work on it for a second reveals a pandora's box of problems. The biggest problem: instead of just litigating the merits of the patent, you're also always going to be litigating when reinvention occurs.
To avoid that issue, courts would find that publication as a patent would act as constructive notice that someone invented something already. And presto, buh-bye reinvention loophole.
The patent law already handles the "accidental" infringement issue--it's called not willful infringement.
It's also a curious position to take that you'd incentive society and industry to not keep apprised of the latest developments. It's the same weird argument someone made earlier in this thread that we should encourage software development to occur as trade secrets.
Slashdot Mirror
I can take the patent law questions. Since patents are territorial and granted on applications submitted to that jurisdiction, it'll be the laws where an application are submitted. It doesn't really matter "where" you are when you do the inventing. If you invent something in Canada, you can still patent it in the US.
The more interesting question has to do with those acts that might constitute "prior art" that are limited by territory, for example "in public use or on sale in [the United States]" for Sec. 102(b) purposes.
As for Nation Y's claim to the invention, it's possible, I suppose, that there could be a law of a country that would require assignment of an invention to the government. I'll point out, though, that would probably be pretty unusual and difficult to enforce internationally. It would create some very interesting questions of title if a patent granted in a foreign jurisdiction were ever in dispute.
The more likely result is that a scientist on the space station already has an obligation to assign their inventions to the government supporting their trip to the ISS (as do most employees of most companies).
Actually, you've got it just backwards. Patents are not granted to shelter new inventions (that would require some time traveling, I'd imagine). Instead, patents are granted to reward the inventors of new inventions that elect to disclose the invention publicly. In reality, it shouldn't matter how you use your "reward." If the government gave you $20M instead of a period of exclusivity, it's unlikely that part of the deal would be that you can only use the $20M (a figure that probably is way too high on average, btw) to commercialize the patent. That would be wildly unfair.
Per the patent laws, patents are personal property. You can buy, sell and divide up patents like any other personal property. This only makes sense. If an independent inventor can't figure out how to make money making or using the patent himself, he should be able to sell it to someone that can for money.
This is the most specious of arguments. Not only is it wrong; it's entirely misleading.
In this case, "or later" allows the distributor to choose how to distribute the software. GPL's contractual rights and obligations run to the person doing the distribution. The originator will only be bound by GPLv2. Anyone distributing the software after being distributed under GPLv3 will be bound by the new contract.
So no, it is not effective "already" under the GPLv3.
Arguably this leads to its own problems. You could "effectively" have two (or, in the future, more) different licenses applying to the same project.
Let's be clear. You're talking about persuasive authority, not precedent. It will only be precedent if it gets to a conclusion of law at trial and then gets appealed (both are very small minority of cases). If there's no trial, there's no authority (persuasive or otherwise). If there's no appeal, at best the case becomes persuasive authority, but no other court will be bound by the conclusion.
If the case is appealed and the legal issues on appeal are GPL issues, then, yes, there could be precedent.
IAAL. The GPL is a contract. Anyone saying otherwise doesn't know what a contract from a promise. Indeed, I've read this claim so many times on slashdot. And, frankly, I think it's a reaction to the hatred towards EULAs. However, it is a total fiction. The GPL is a contract. I wager that most lawyers (if not every lawyer) would see the GPL as a contract.
Typically, a contract has three parts: offer, acceptance and consideration.
The offer is easy: "would you like this code that you can distribute subject to these conditions?" The consideration is easy: you get code and I will get any source code if you decide to distribute.
Acceptance is a bit harder. There isn't an obvious exchange of money or other pecuniary interest. There's not even a signature. Instead what you probably have is performance. This happens all of the time in the real world. Performance can be acceptance. There's plenty of cases on this point.
[As an aside, note that a signature is a requirement for a contract. It is neither necessary or sufficient (in most cases). You can sign a piece of paper, but unless there's consideration (and offer and acceptance) you don't have a contract. This is another legal fiction that I see all of the time on Slashdot.]
In the instant case, the real question in this case is whether the cause of action sounds in contract or in copyright. I would be mildly surprised if a court found a copyright infringement claim. Courts have attempted to answer this question by asking whether the party exceeded the scope of the license or whether they merely breached a condition of the license. For example, distributing a copyrighted work without the right to distribute. Under the GPL, there is a BROAD grant.
In cases that are said to sound in contract, courts ask whether there is a breach merely of a condition. For example, one court found that distribution without the requirement of attribution was a breach of contract; not copyright infringement.
For this reason, this case might be important.
IAAL, and, frankly, nothing stops a company like e360 from suing you, or, indeed, winning if they are able to obtain a default judgment like in this case. The reason why that seems genuinely unlikely is because you're not a big target and any damages would be pretty small.
Reading the opinion, the judge seemed to recognize that Spamhaus availed itself of the U.S. court systems and then, in a really stupid move, wanted out and gave up its rights in the process. Unsurprisingly, it lost at the district court, and Spamhaus was amazingly well-advised by the judge of the result of its actions at the time. Spamhaus only then got mad when it realized that it in fact might be subject to sanctions by the courts.
The 7th circuit gave Spamhaus a lot to be thankful for. And this opinion leaves a lot open for the district court now. Among other things, on remand to the district court, the district court has to:
1. do a better job of fact finding with regards to damages; and
2. go through the full analysis regarding injunctive relief.
What's also interesting about the injunctive relief decision is that while spamhaus may not use the same criteria to list e360, they can come up with a new and different reason to re-add them to the list.
Let's be clear here "distribution" is only one of the enumerated copyright rights. Your scenario invokes at least one other right: duplication. The other party's installation, use, etc. would probably raise yet others.
Also, even reading Nimmer's explanation of the distribution right, you should note how many issues there would be: "limited group" (how limited?), "limited purpose" (what was the limited purpose of your distribution?), on and on.
Finally, your question about the EULA is pretty fact specific. It may or may not be true that it is only effective upon execution. I don't think we have enough details, but the questions would be: where and when you had reasonable notice of the relevant terms.
... on the merits of this case yet. That means an examiner HASN'T yet looked at the application.
This is merely the 18 month publication of the application. It's very likely that this isn't going to issue the way it is now. It's very typical to start with the broadest claims that seem reasonable.
It's too late now to file 3rd party materials. So, watch the application through public PAIR and once you see a notice of allowance, then start to scream. Don't worry, that'll probably won't happen, if at all, until like another 2 years.
Prior art DOES go to the idea of obviousness, unless you're going to disagree with the Supreme Court. SCOTUS, in the Graham case stated the following factors as relevant for obviousness:
1. Scope and content of the prior art
2. Level of ordinary skill in the prior art
3. Differences between the claimed invention and the prior art and
4. Any other objective evidence of nonobviousness.
And, just as a refresher, it is NOT enough to point to disparate sources to hit each element of a claim. You need something more than that: it used to be a "teaching, suggestion or motivation" to combine the art. Even under KSR, vague assertions are not going to be enough.
You of course are right that KSR may have changed the rules somewhat, but that really remains to be seen. That is, most people seem to agree that KSR isn't a watershed decision for obviousness. One challenging a patent must still overcome the presumption of validity, and provide some reason to take the next step from the prior art that doesn't disclose all of the elements.
Also, it's likely that this situation would be distinguishable from the KSR opinion. Unlike KSR, this situation doesn't seem like it is merely taking two knowns and creating a mere combination without any synergies. There are "obvious" benefits, for example, over your mere paper version.
But back to the point of the original post, what evidence would YOU provide that shows that this idea is in fact "clearly obvious." You need something more than vague assertions about an organized geographical search system. Moreover, it's not "obvious" to me that merely putting a print version of organized heirarchy online would satisfy all of the elements.
To invalidate it as obvious, you have to find one or more documents/patents or example of a system that contain all of the elements of the claim (or enough sources that show that it was obvious to combine).
Remember, you have to be able to find documents that existed on or before the date of filing Jan 31, 1996.
Frankly, it would probably be easier to show that the disclosure was not enabling. But, let's have at it.
Except that those EULAs very often don't merely state that "you accept by pressing the accept button." Most state that either keeping the hardware or using the hardware is essentially the SAME AS pressing accept. There is NO dispute in courts that "performance" can be used to show acceptance.
Moreover, the worst part of your argument is that you acknowledge being AWARE of the EULA and choosing to ignore it. I would suggest that you refrain from offering legal advice.
On the other hand, there may be lots of other evidence that you could assert to show a contract is unenforceable, but that would require a more particular set of facts.
Another really bad argument. First, they really aren't that hard to read. If you don't understand consequential damages, arbitration, limitation of liability, warranties, choice of venue, choice of law, attorney's fees, etc., then hire yourself a lawyer.
Second, there is no requirement that you read OR understand a contract. There is no real concept of "informed consent" in contract law. You could try to argue that you lack the capacity to form a contract, but that's a sure loser.
Finally, EULAs are sometimes just as important to you and "throwing them all out" would be idiotic. They often set out things like your warranty coverage and your rights to use software (your "license") that you otherwise wouldn't have the right. Most importantly, it keeps things CHEAPER for you. If every computer/software company had unlimited liability, you would probably be spending considerably more for your purchases.
This is half ignorant. First, any distribution of something licensed under GPL/LGPL must be accompanied by certain terms. For example, the GPL/LGPL contain a disclaimer of warranty.
Second, the GPL actually GRANTS the end user rights to do certain thing. Among other things, it gives you the right to obtain the source code. Those rights, however, do impose obligations upon you as well: such as any distribution/modification is subject to those same terms.
So, in reality, it's not wrong to say that you have to agree to certain parts of the GPL.
I hate the parent's comment. It shows up in every slashdot thread whenever the story is about a contract question. The problem is that it's not legally, or even practically-speaking, accurate. Moreover, the fact that it gets modded up to +5 is really frustrating.
I have no idea why people think that one actually has to sign anything to form a contract. Most US states have no such requirement. The closest thing to any such requirement is in the statute of frauds, but the statute of frauds is applied very narrowly (the US doesn't typically like formalities).
Contracts are formed all the time without signing anything. More often than not, the only questions for a court in a contract between businesses and consumers are: 1) was there proper notice of the terms and 2) are the terms unconscionable?
In this case, there is a good argument there was not proper notice.
Nevertheless, I think anyone that posts "he didn't sign anything" should be modded like "first post"ers.
This is very much NOT true.
You can patent anything under the sun made by man.
However, there are a lot of reasons NOT to patent something.
First, you might not be able to patent anything. the composites and alloys might not be new, novel or nonobvious. Therefore, filing a patent application might spoil a perfectly good secret and you get no protection since it'll be published
Second, patents have a really short lifetime (now, 20 years from the application date). On the other hand, trade secrets gave be indefinite. There's no disclosure requirements.
Finally, determining the composite/alloy (or the process to make it) may be impossible merely by examining the finished product. A number of companies working with carbon fiber materials and some other exotic materials quickly realized that it may be impossible to tell what they consist of with any degree of accuracy without entirely ruining the substance. This is a perfect place for a trade secret (you get the same thing happening with nanotech inventions).
Actually, there's nothing that says that you can't use an inanimate object as an agent. In fact, most e-signature laws recognize this fact. In some sense, every time you click "accept" on a license agreement you have in fact given the machine the power to accept the terms of a license agreement.
It is an interesting question whether you could actually make an implied contract case out of these facts. The issue a court would have to decide is whether the owner of the router intended the router to be its agent for purposes of granting access to the network. One could see how a court might infer offer, acceptance and assent. Though, this would clearly be a novel legal theory and should not be interpreted as legal advice.
True. I said it often has that result. You don't need to look to software to see companies inventing around. It's happening in almost every competing product and design. However, that doesn't mean that there IS another a way.
Also, I think that the point is not that you implement "work arounds" but rather that you "invent around" a patent. However, as with everything, it's an economic decision. In the case where there is NOT a viable work around, enter license agreements or see the third point.
As to my third claim, what can I say, market forces?
As an aside, you can obvious tell the bias of the slashdot crowd given the fact that the worst posts that are the most virulently anti-patent seem to start out at 2+.
Well, your logic is somewhat circular. If it is legally determined "obvious" then, yes, it'll be invalid. But the fact that a patent covers the easy way to do something doesn't make it legally "obvious" or "invalid." I'd also argue that it's not at all clear which way the fact that there is not another easy way cuts. It could very well mean that the putative-inventor was actually a genius and found the only reasonable way. That's something that should enjoy a benefit.
Finally, as with any other sort of trespass, you can usually pay for the right to use the easy way. In real property they're called easements. In the IP world, it's called a license. The good thing about the IP world is that (at least for patents) you're not paying for forever.
The patent system incentivizes would-be infringers to "invent around." Indeed, it's arguably one of the goals of the patent system. That is, one of the benefits of having patents is that it forces inventors to invent some more. This has lots of benefits:
* it requires others to think about the problem more
* it often produces newer, better, more efficient solutions
* it opens up opportunities in fields where it would have been cost prohibitive to even explore (but for the "rent" imposed by a patent)
The same thing has been going on for decades in every industry, not just software. There are entire engineering firms that are dedicated to just that pursuit.
People need to quit repeating this idea that no government can get a copyright. It's only the federal government that can't get a copyright. State governments can get all the copyrights that they want.
And since the I.D. wasn't produced by the state government, it's copyrightable.
First, on the US gov't point, the U.S. government doesn't issue driver's licenses yet. The states do. That provision of the copyright law doesn't apply to the states.
Second, the fact that something is a derivative work doesn't mean that it's not copyrightable. Indeed, most works are derivative works.
The proper question would be whether the material added to the state driver's license was sufficiently original or creative to constitute a copyrightable work.
Good try at being a lawyer though.
It's not a free patent, it's just that it's listed on an online patent viewing site.
Second, it's not even a patent yet. It's a patent application.
The parent doesn't follow the logic all the way through to the end because if it did one would quickly realize that most every machine is essentially the embodiment of math.
Moreover, it doesn't take a genius to describe an algorithm as a machine--it's a trivial exercise and so trivial that patent folks usually don't talk about "patents on software" but rather patents on methods implemented by computers.
A reinvention would be a huge step backwards. Just putting your brain to work on it for a second reveals a pandora's box of problems. The biggest problem: instead of just litigating the merits of the patent, you're also always going to be litigating when reinvention occurs.
To avoid that issue, courts would find that publication as a patent would act as constructive notice that someone invented something already. And presto, buh-bye reinvention loophole.
The patent law already handles the "accidental" infringement issue--it's called not willful infringement.
It's also a curious position to take that you'd incentive society and industry to not keep apprised of the latest developments. It's the same weird argument someone made earlier in this thread that we should encourage software development to occur as trade secrets.