I am a little concerned by the breadth of the Federal Circuit's ruling. It seems that the panel went far beyond the issue-at-hand (i.e., that a student researcher has standing to bring an inventorship claim -- an entirely reasonable proposition, I think) when it found the student's instructer to be the student's fiduciary. A finding of a fiduciary relationship has significant implications: in general, a fiduciary owes her benficiary a duty of care, loyalty, etc. For example, the lawyer-client relationship is a fiduciary relationship. I'm just not sure that we want to start making professors the fiduciaries of their students, and thereby impose upon those professors a significant new area of legal liability.
In addition, the scope of a fiduciary relationship is a question of state law (in this case, Illinois law), not Federal law -- a fact not brought out in the linked article. Thus, the panel is not only stretching the bounds of the fiduciary relationship, but also imposing liability based on its "best guess" as to what an Illinois state court would recognize. I am not aware of any Illinois opinion that holds that a professor is the fiduciary of his student (altho since I haven't looked at the question, I'm eager to be humbled by someone smarter).
Amen. This one looks like it's particularly narrow, since many of the terms aappear to be written in what's called "means plus function" format (e.g., "predetermined interface browser means,"). Under the law, the scope of a "means plus function" patent limitation is often restricted to the precise embodiment(s) of the limitation that is expressed in the patent's specification (the specification is everything other than the claims.) So, if my claim says "means for flying," but my specification only talks about a helicopter, I can't go claiming that a jet plane infringes my patent, even though a jet plane is also be a "means for flying." This is a gross oversimplification of the law, of course, but it'll give you the general idea as to the perils of reading patents.
After all, if patents could be understood just by reading them and applying common sense, a lot of lawyers would be out of a job.
I have not researched this specific issue, but it seems to me that there is a distinction between passing a law that makes something previously legal, illegal and then seeks to prosecute people for their conduct prior to the change, and retroactively altering the statute of limitations for an already existing crime. The primary concern of Constitution's prohibition against ex post facto laws is to prevent the government from playing gotcha -- sending people to jail for actions that were legal when they were undertaken (i.e., the former). That concern does not necessarily exist when the statute of limitations for an *already existing* crime changes (i.e., the latter). After all, if an activity has always been illegal, you're already on notice that your liberty is at stake if you engage in it. Changing the limitations period for that activity simply means you cannot now seek sanctuary for something you knew you should not have been doing when you were doing it, so to speak.
In other words, depending on how the Ashcroft bill is written (e.g., if it simply removes the statute of limitations for already existing computer crimes), the prohibition against ex post facto laws may not even come into play.
Its good to see that the big companies are being hurt by this. In the past they could use cross-licensing agreements to tie up whole areas of technology for themselves and shut out new companies.
A point of clarification: In the United States, a cross-license such as the one described above can run afoul of the Sherman Act if the involved companies use their cross-licenses to exercise monopoly power in the marketplace beyond that which the Patent Act allows. Similarly, a patent can be declared "unenforceable" (not "invalid," which is what occurs when a patent is successfully challenged with prior art) during the period that it is used to improperly restrain trade. The intersection between patent law and antitrust law is an interesting one, and deserves further discussion.
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I am a little concerned by the breadth of the Federal Circuit's ruling. It seems that the panel went far beyond the issue-at-hand (i.e., that a student researcher has standing to bring an inventorship claim -- an entirely reasonable proposition, I think) when it found the student's instructer to be the student's fiduciary. A finding of a fiduciary relationship has significant implications: in general, a fiduciary owes her benficiary a duty of care, loyalty, etc. For example, the lawyer-client relationship is a fiduciary relationship. I'm just not sure that we want to start making professors the fiduciaries of their students, and thereby impose upon those professors a significant new area of legal liability.
In addition, the scope of a fiduciary relationship is a question of state law (in this case, Illinois law), not Federal law -- a fact not brought out in the linked article. Thus, the panel is not only stretching the bounds of the fiduciary relationship, but also imposing liability based on its "best guess" as to what an Illinois state court would recognize. I am not aware of any Illinois opinion that holds that a professor is the fiduciary of his student (altho since I haven't looked at the question, I'm eager to be humbled by someone smarter).
Amen. This one looks like it's particularly narrow, since many of the terms aappear to be written in what's called "means plus function" format (e.g., "predetermined interface browser means,"). Under the law, the scope of a "means plus function" patent limitation is often restricted to the precise embodiment(s) of the limitation that is expressed in the patent's specification (the specification is everything other than the claims.) So, if my claim says "means for flying," but my specification only talks about a helicopter, I can't go claiming that a jet plane infringes my patent, even though a jet plane is also be a "means for flying." This is a gross oversimplification of the law, of course, but it'll give you the general idea as to the perils of reading patents.
After all, if patents could be understood just by reading them and applying common sense, a lot of lawyers would be out of a job.
I have not researched this specific issue, but it seems to me that there is a distinction between passing a law that makes something previously legal, illegal and then seeks to prosecute people for their conduct prior to the change, and retroactively altering the statute of limitations for an already existing crime. The primary concern of Constitution's prohibition against ex post facto laws is to prevent the government from playing gotcha -- sending people to jail for actions that were legal when they were undertaken (i.e., the former). That concern does not necessarily exist when the statute of limitations for an *already existing* crime changes (i.e., the latter). After all, if an activity has always been illegal, you're already on notice that your liberty is at stake if you engage in it. Changing the limitations period for that activity simply means you cannot now seek sanctuary for something you knew you should not have been doing when you were doing it, so to speak.
In other words, depending on how the Ashcroft bill is written (e.g., if it simply removes the statute of limitations for already existing computer crimes), the prohibition against ex post facto laws may not even come into play.
Its good to see that the big companies are being hurt by this. In the past they could use cross-licensing agreements to tie up whole areas of technology for themselves and shut out new companies. A point of clarification: In the United States, a cross-license such as the one described above can run afoul of the Sherman Act if the involved companies use their cross-licenses to exercise monopoly power in the marketplace beyond that which the Patent Act allows. Similarly, a patent can be declared "unenforceable" (not "invalid," which is what occurs when a patent is successfully challenged with prior art) during the period that it is used to improperly restrain trade. The intersection between patent law and antitrust law is an interesting one, and deserves further discussion.