The Fourth Amendment only applies to the Federal government, and no state statute can reduce or increase those rights. Of course, the state itself may be limited by the Fourth (through the Fourteenth), and in that case, no state statute can reduce those rights. California may try to pass laws that provide additional protection not governed by the Fourth, provided it does not violate the Supremacy clause, and that's fine, but its unlikely to limit federal activities expressly provided for by federal statute.
There is no real dispute over the right to wiretap without a warrant (although some claim to the contrary, its not the Federal government doing the claiming), at least not since the Bush administration got into hot water over that issue.
As to the applicability of the Fourth to metadata acquisition, the Supreme Court addressed that point more than thirty years ago in Smith v. Maryland. Cases claiming that Smith is somehow inapplicable to the NSA issues are working their way through the courts, and time will tell. But it is still a legal reach to assert that metadata acquisition somehow violates the Fourth Amendment, without qualification, given the clear Supreme Court law on the subject.
The question whether copyright existed to protect the "look and feel" of an application was open until the Supreme Court affirmed (4-4 en banc without opinion) the First Circuit decision in Lotus v. Borland. That case took decades to litigate, but addressed whether Borland was permitted in Quattro to execute Lotus 1-2-3 macros (the damned "/" tree of letter commands), even though the macro language was not aptentable. The mere "embodiment" of the "/" tree was deemed by Lotus to be protectible copyright. (In my view, Kapor should have been made a pariah for this assertion, but hey, its just me.)
The First Circuit held that when expression (if you can call the letter tree expression) equates to funtionality, it has merged with the unprotectible functionality. That has been the basis of almost all Copyright law since that time regarding reverse engineering and competition in the software industry. Any other rule would yield considerable chill to adopting new technologies, and in implementing imrpovements. The Internet itself might not have evolved as it did.
The most significant example was the Phoenix BIOS, a reverse-engineered implementation of the BIOS for the IBM PC that made clones possible. Under the Federal Circuit rule in Oracle, the Phoenix (and its progeny) would have been infringing, and we would live in a very different world than we do today.
I am cautiously optimistic that the Federal Circuit will take this matter up en banc and reverse, or perhaps SCOTUS will set it right. Until then, the conflict between Oracle and Borland cases will create a chilling uncertainty in the industry that will educate my granchildren's education, but serve little other good purpose.
In my view, an API merges with its functionality and should be unprotectable. That was the law everywhere in the United States, until today.
I'd be unimpressed with the business acumen of both the entrepreneur and the programmer. An entrepreneur who relates confidential information without an NDA has created difficulties at the very outset of his enterprise, which may or may not be costly later. (Consider the nonsense of the Facebook litigations.) A programmer who refuses work because he won't sign an agreement that merely binds him to refrain from doing something he would never want to do anyway, has refused work for no reason at all.
Of course, an overreaching and overbearing NDA is unsignable, and of course one with other provisions (noncompetes, etc.) raise different issues. But a routine NDA should be a non-problem for an honest programmer who doesn't intend to steal anything. And the failure to sign, at least for me, is a big red flag that another programmer would be a better solution.
Get over yourself. Most of us are fungible. No reason, other than inexperience, naiveté or reserving the right to cheat can be given to refuse, all of which make the programmer unsuitable for the task. As far as the moralistic argument about starting the relationship on the wrong foot, welcome to the twenty-first century, refusal to sign an NDA is precisely that, starting the relationship on the wrong foot -- it assures suspicion. And don't think refusal to sign puts you at a legal advantage, there are plenty of common-law and statutory ways to reach someone who has misappropriated, PARTICULARLY if it is explained to the judge that the refusal to sign was simply for some moralistic, idealistic handshakey kind of deal.
Tl;dr -> Refusing on that basis is a silly idea. Don't be silly.
Two words: Peer Review. The Wikipedia editorial process is not thought well of because the content is not edited by experts, and no feedback or improvement of hte process occurs. This is why the content is ever suspect, and the cred for those who write it is not enhanced by doing so.
Too bad I had to post anon due to predictable mod abuse, because I am serious about this topic, not trolling.
All evidence to the contrary. The issue at point obviously transcends party boundaries. When Orin Hatch chaired Senate Judiciary subcommittee on intellectual property in the 90s, it was the Republicans who led the RIAA charge against Grokster, and it was Leahy who shut down the Inducement of Copyright Act after a massive lobbying effort by public interest groups. The EFF, which could never be considered a conservative think-tank, has taken the front line in shutting down overreaching Copyright abuse.
So, it would appear that the bold-faced (and somewhat bald-faced) effort to turn this into an anti-Obama issue is, in fact, just another troll
It has been suggested in various writings that the newly issued Microsoft patent on an XML-based document would somehow resolve Microsoft's woes against i4i. This is most unlikely. A patent grants only rights to exclude others from practicing a claimed invention, and creates no right at all to practice the claimed invention. It is quite possible to obtain a patent governing a novel and unobvious variation of an existing patented technology. While the second patent would grant its owner the right to exclude people (including the first patent owner) from practicing the variation, it would grant no right to practice the variation if the variation also infringed the first patent.
Of course, it may be the case that the first company may want to practice the variation as well, in which case a cross-licensing deal might be worked out. But the issuing of a new patent on related technology does not, itself, help Microsoft out of its box unless the new technology does not infringe the i4i patent.
This is really pretty easy stuff guys. The examiner searches for prior art, and if he finds it, or an obvious combination of it, badda-bing, lovely rejection. If not, he is bound by statute to allow the patent, period. 35 USC s. 102 ("A person shall be entitled to a patent unless" there exists invalidating art). We all know you hate the law and the standards, but give this poor examiner a break, will you? He HAS to allow the patent UNLESS he comes up with a case to reject it. He HAS to do it. He HAS to. Suggesting bad faith or corruption as the cause of the examiner's allowance is obnoxious and naive.
The examiner did his research, and gave it his best shot. By amendment and argument, Amazon shot down his case. Nobody came to the rescue with any new art, and the examiner didn't find any. Indeed, despite the FAMOUSNESS of this battle, NOBODY has come up with any art to defeat the new claims or the old ones.
It should not be forgotten when convenient that the Supreme Court's role is limited to combing through the constitutionality of a past ruling.
Nonsense. False. Inaccurate. Mistaken. Did I mention that it is also wrong?
Article III vests the judicial power of the United States in one supreme Court, and such inferior courts as the Congress may from time to time ordain and establish. The power extends to all cases in law and equity. The Supreme court has original jurisdiction (to try cases) in rare and obscure circumstances (that never happens). In all other cases the Supreme Court has appellate jurisdiction, that is, the power to review the decisions of the lower Courts.
Now, there is little doubt since a case in the early days of our nation, Marbury v. Madison, that the Supreme Court has held the power to review acts of the other branches for constitutionality. And there is no doubt they do that quite a bit. But to say that this is the sole scope of their jurisdiction is to completely misunderstand what they do.
Appellate review of lower court cases, essentially, is to review the courts to make sure that they applied the correct law to the facts of the case, and followed the correct procedures in arriving at their fact findings. This is PRECISELY the issue in the e-Bay case, whether the congress meant what it said by writing,
The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.
The Federal Circuit looked at this language and decided that injunctions had to be given every time an infringement is found, without regard to principles of equity or the court's view whether the terms are reasonable. Yeah, I know. (and it is a little bit deeper than that, but not much). Anyhooo... the purpose of the Supreme Court's review here has NOTHING AT ALL TO DO WITH THE CONSTITUTION, but rather with respect to the construction and application of the statutory language.
interesting, but how does one defend "nearly identical" independently created source code from a copyright infringement lawsuit?
Use a clean room development process. To understand why this is so, you must understand how the burdens of proof are distributed in a copyright case. Initially, a plaintiff bears the burden to prove (by a preponderance of the evidence) copying of his work. It does not suffice to prove that the works are merely similar, as you would for a patent case. However, the burden can be satisfied by either direct or circumstantial evidence. Direct evidence would be the credible testimony of someone who saw the copying being done.
Circumstantial evidence can be shown in two ways: (i) by showing access to the work and substantial similarity; or (ii) by showing striking similarity, which is greater, somehow, than another standard called "virtual identity." If the plaintiff meets his burden, the burden shifts to the defendant, who can nevertheless prevail if she can prove, by a preponderance of the evidence, that the similarities can be accounted for by independent development. The difficulty is that it is often hard to prove the negative. This can be done, among other ways, by using a clean room.
If you have access to the evil empire's work, what you can do is to use your knowlege to write a specification of the product you want to have made. Then, to isolate the work from the access, have a gatekeeper (usually a lawyer) confirm that the specification does not contain any protectible expression, and then hire a third party engineer who has never had access to the work. Then you can go back and forth, using the gatekeeper to assure that no expression infects the third party engineer. Voila, an independently developed product that is demonstrably independent.
You can also try to prove independent development in various other ways, such as by credible testimony and documentation of independent development. But then you are subject to the whims of a jury's interpretation of the facts. Clean room is the best way to go, if you can.
What possible benefit would there be to occlude the Patent Office with "working models" of things for which there is no serious question whether it can work, other than to take up space and add expense to the legitimate independent inventor's efforts to secure an invention? The reason for doubting whether a warp engine can work is wholly legitimate, you know, because faster than speed light of macroscopic massive objects is -- well -- contrary to most modern physical theories.
In general, the office is frequently inundated with inventions that would violate the laws of physics or thermodynamics. Not that laws aren't meant to be broken, but in such cases the Office is well within its rights and duties to ask the inventor to put up or shut up. It should be noted that they do not do this, even of most cutting edge inventions, because they recognize that independent inventors rarely have the financial resources to realize their "working models."
Sure, bring in your working model atomic bomb, let's take a look. . .
Copyrights protect works of authorship fixed in tangible media, from unconsented reproduction, distribution and derivation FROM THE WORK and other exclusive rights, subject to a litany of limitations of those rights dedicated to the public. Patents protect novel, useful and unobvious inventions from the unconsented making, using or selling of the invention, whether or not they ever heard of the inventor or the invention, with very few limitations other than a very limited "experimental use" defense.
Copyright exists upon original creation, without respect to novelty, and requires no effort to protect. Patents do not exist until application is made and examined for compliance with statute.
The scope of copyright, which requires copying, is far far narrower than patents. This is why, for example, you can clean room a computer program to avoid copyright infringement, but clean rooming provides no protection.
Different rights to protect different things in different ways with different protections and limitations. This is why their terms are not necessarily the same.
If patents and copyrights were inalienable, then nobody could benefit from their exploitation. It is the alienable nature of property that makes property valuable. Markets make the value.
Who would hire an engineer to do research to develop a product, if you are not permitted to obtain exlcusive rights in the engineer's work? Why not simply wait until the engineer completes the work, if ever, and then negotiate for the rights?
It is simply unconscionable for RIAA to take that position now, having gone to the Supreme Court in the Grokster case and affirmatively representing that their proposed test would not impact innovation because uses such as "Mix, Rip, Burn" and the iPod are clearly lawful. From the transcript:
JUSTICE BREYER: You're not saying -- now you're 22 using different tests. Your test is "substantial." All 23 right, on your test, are we sure, if you were the counsel 24 to Mr. Carlson, that you recommend going ahead with the 25 Xerox machine? Are you sure, if you were the counsel to
1 the creator of the VCR, that you could recommend, given 2 the use, copying movies, that we should ever have a VCR? 3 Are you sure that you could recommend to the iPod inventor 4 that he could go ahead and have an iPod, or, for that 5 matter, Gutenberg, the press? I mean, you see the 6 problem. 7 MR. VERRILLI: Yeah, I think my answer to -
No, I have been around for quite a while, and am intimately familiar with the patent system to boot. While I am willing to fight for your right to be an anonymous coward, I suggest that it is pretty poor practice to begin a posting with an ad hominem attack, anonymous or otherwise. I might be new here, but also be right. I might also be wrong. My arguments might seem to you like condescension, but they are not intended as such -- rather, they are arguments, arguments that you have not joined except at all with a substantive response.
Let me explain it simply. Patents are bad. They are the tools of exploitation (profiteers exploiting the creative people).
At least this individual honestly states his position -- he is not attacking software patents per se, but rather patent in general. Although he gives no reasons in support of his position, other than the representation that "JFYII I studied patent Law. I got a distinction," there do exist reasonable arguments in support of the position he states. But they are irrelevant, because there are are also powerful arguments to the contrary, and the debate is never joined on the merits because the patent haters have a tendency to demagoguery, as exhibited by the poster.
It is understandable why -- the position of the patent-hater has been totally marginalized in the West -- and, more important, will never be enacted into law. As a student of the patent system, the poster knows that it is constitutionally enshrined in the United States, at least, and has a long and illustrious history of success. Two hundred years of technological dominance and industrial innovation do not prove that it was caused by patent system, but does demonstrate that the parade of horribles claimed by patent system detractors --as a whole-- is wildly overstated. Without a patent system, some of our nation's greatest inventors --particularly during the industrial revolution-- might never have been able to claim their due. Finally, nations with strong patent systems, for the most part, have dominated innovation while nations without them have languished.
This is certainly not an argument on which I would ground my defense of the patent system, but rather a taste of the counter-demagoguery that anti-patent movement people face. If not intellectually defensible to claim cause and effect, these points are enormously persuasive in fact, and are likely always to win the day in the Congress. The only place where it really matters.
At any rate, there are other forums where the debate over the patent system can be argued substantively, and I am not about to join this vapid list of random and unsupported remarks.
But as I said -- this isn't about software patents -- rather it is for the most part about criticism of patents, generally, a view that cannot be won in the United States, or about criticism of bad software patents, with which I generally agree, but which calls for repairs to the patent granting system, and not overhaul of the patent system itself.
Patent trolls aren't evil, but rational and predictable, akin to the mold that eventually grows on rotten meat.
You really, really need to listen to yourself. This "argument" is wholly devoid of substance, and is so on its face. First of all, wtf is a patent troll, that distinguishes it (assuming he is a faceless corporation rather than a legitimate and independent inventor) from, say, a property owner or landlord? Are you willing to defend the argument with that substitution, and if so, perhaps we need to rethink on which side of the argument we are laying?
And if you find some fundamental difference (and oh my there are certainly differences), deeper than the sea that makes you rebel at that, what is the difference between the "patent troll" (bad) protecting his intellectual property rights in "software patent" (evil), and the true genius independent inventor (good) defending his honor and creativity in a pioneering invention? Isn't that fundamentally just a question of whether the patent troll is suing a company we like, or an inventor we like is suing an evil corporation?
And what, pray tell, do you mean by a "software patent," that makes it so fundamentally different and unworkable from, you know, a patent on a method that has been enshrined in the patent act from time immemorial? Is it possible that a (good) invention could have been created that relates to electronic devices or circuits, and the methods of using them? If so, how do we distinguish? In partciular, are you seriously suggesting theat each and every one of the claims asserted against RIM in the lawsuit are software patents? Remember, infringement of a single valid claim of a single enforceable patent is sufficient.
Are you sure that NTP is an amoral patent troll asserting an improbable software patent, or is it every patent plaintiff who wins a case that you are complaining about? Are you sure that the patents-in-suit are evil and probably invalid softgware patents, or is it possible that NTP has succeeded to the rights to a meaningful invention? Is it possible, in particular, that RIM is simply a business that lifted itself up on the shoulders of others and arrogantly ignored the legitimate rights of the inventors on whose shoulders they are standing? RIM could have bought out of this suit easily earlier, and only talked settlement when it was clear they were facing an injunction worth billions. If, for just a second, you assume that they borrowed the invention of another and stood as a faceless, amoral giant corproation telling the inventor they will ignore his property for so long as lawyers allow -- where is the evil or emptiness of morality then?
In short, wtf is your argument? Is it:
Patents are bad?
Software patents are bad?
or
Bad software patents are bad?
Can you actually defend your case and distinctions without demagoguing on the third issue (with which we are in agreement)? I haven't seen a sound argument (and there are some) for cases (1) or (2) on this forum for years.
It is true that one of the main problems with the patent system today is that the "novel" requirement is hard to define precisely. But instead of making this requirement more defined, Hollaar pretty much suggests that we should just open the floodgates.
These words don't mean what you think they mean. Novelty is probably one of the easiest and best understood aspect of patent law. Although sometime notions, like "inherent novelty" are complex in practice, novelty is the baby exercise. You appear to be confusing novelty with unobviousness, and thus wholly misunderstanding the proposal.
If you say so. Its not hard to start talking settlement after you have already lost the case, but I would still consider that pretty unyielding, given that the value of the injunction has been estimated in excess of more than a billion. They could have settled for far less a few years ago.
Anyway, the offer scuttled, and RIM is again playing hardline, hoping past hope that the U.S. government will do for them what the U.S. courts would not, and make this all go away. Not likely, but time will tell.
I responded to the original post, which incorrectly and improperly suggested Prof. Hollaar is ignorant of patent issues. I don't disagree with you as to some of your remarks, and am not nearly so excited about this proposal as is he. However, he did make strong arguments in favor of his proposal, which require deeper analysis than to engage in name calling.
One point to make, however, is that "novelty" is a very specialized term in this context, and it is one of the Hollaar proposal's most difficult issue. A claimed invention is NOVEL, whenever no single prior art reference (or publicly practiced thing) contains ALL of the limitations in the claim. A single technical difference is enough to make the claim NOVEL. However, trivial technical differences, like design decisions are generally not sufficient to make the novel idea unobvious. Accordingly, the scope of "things" that can be protected by a four-year petit patent in his proposal is much, MUCH larger than that for which a big patent.
In other words, the restriction to novelty doesn't limit the scope of patentable content, it limits the scope of bases for REJECTING protection. The present standard is novel, useful and unobvious. The new standard would be merely novel and useful. I think you might agree with me that this could be a bad thing.
Given that this will be exploited by first entrants to quickly moving markets, I am concerned that the principal marketplace protections -- yes pretections -- of the patent system may be circumvented, and that the inventor protection this offers can significantly stunt innovation and American competitiveness.
His proposal DOES address important problems of the status quo, but not all the imporatnt problems of the status quo. And it exacerbates others. The proposal is not wrong because it is imperfect, but its benefits must be fairly weighed against its costs. This is how one makes an argument in the face of new ideas. Calling them "dumb," without more, is neither insightful nor helpful.
My point was simply that the validity of the patents in view of the prior art considered by the Court has been fully litigated and reviewed on appeal.
, I would have to question whether the USPTO is answerable to courts regarding its decisions
Well, the USPTO appears to think so. Manual of Patent Examination Practice 2659 (decisions of federal courts binding during reexamination)
- because it is most certainly answerable to the whims of congress (my initial point above), and congress is blowing very one-sidedly in this case.
You appear unable to distinguish between the whims of congressmen and ACTS of Congress. The Patent Act provides to the contrary:
35 U.S.C. 141-146 (chapter entitled "Review of Patent and Trademark Office Decision).
Even if the USPTO is ultimately answerable to the courts regarding its decisions, that would mean NTP would have to bring a whole new case against the USPTO - meaning 5 years during which it will be even harder than it has been for them to get an injunction.
Not likely, the injunction may be entered this week. Significantly, while the Administration is bound by the Courts, the Courts are not bound to stay proceedings in view of the reexamination. Many things would have to happen for a delay of the kind you suggest: (1) the PTO has to in fact invalidate the claims -- it has not yet done so; (2) the invalidation would have to be supported by the Patent Board of Appeals; and (3) the invalidation would have to require additional evidence to defeat, rather than mere appeal to the Federal Circuit; and (4) the Federal Circuit sustain the rejections. An unlikely parlay. Finally, it is doubtful that the trial, if it occurred, woudl require nearly as much time as you suggest.
You don't know what you are talking about. Professor Hollaar has an intimate understanding of these issues. He is a blue-chip expert in this arena, and your suggestions to the contrary are wholly unfounded.
Lee Hollaar is one of our nation's most brilliant non-legal scholars regarding intellectual property issues. Lee has been active in intellectual proprerty matters for decades, and is the author of the BNA publication "Legal Protection of Digital Information," which you can read for free online (complete with hyperlinks to case law!) at the AUTHOR's insistance. Although he is no doubt an IP maximalist, his is frequenty a reasoned and well-informed view.
He is the author of or worked closely with the authors of highly influential amicus briefs that led the United States Supreme Courts to decisions in landmark intellectual property law cases. He worked on the hill as a staffer, and also as an advisor to the Federal Circuit Court of Appeals. And he has served as technical expert and special master in many important IP and technology law cases, including United States v. Microsoft.
As it turns out, I do not agree with Lee on the necessity or benefits of his "petit patent" proposal, and might agree with a more critically worded and substantive revision of the poster's remarks. Unlikely many on this forum, I find Lee to be open to new ideas and revisions of his old ones when confronted with solid argument. This flexibility toward truth-seeking rather than lockstep ideology is one of the principal reasons he is such a formidable opponent at a debate on IP matters, and why his opinions, even when they are wrong, are highly influential.
But I would Never, NEVER suggest that the proposal was founded in ignorance. Professor Hollaar has enormous gravitas in the IP community, and his influence is well-deserved. Right or wrong (I often disagree and spar with him), your suggestions about his understanding are wholly unfounded.
"We rubber stamp almost everything. You shouldn't build a business on a patent until it has been tried in the courts."
That's just plain silly, of course. The patents in this case have withstood intense scrutiny, and been affirmed by the trial court and the Federal Circuit. There is no indication yet that these patents issued, if at all, for failure to adequately examine them for the initial application fee.
A patent is supposed to be a guarantee - the due diligence should have been done before the patent was granted.
Actually, no. Patent examination entails only a novelty search, a topical level search done by patent examiners who are familiar with an art area. If that's what you mean by due diligence, fine. There is a solid indication here that this application was well-examined below. There is no effort during examination to do more than generally survey the specific art area for prior art, and no more could be justified for the iniitial fee. That's it, and that's how it has been for hundreds of years. After that, the burden shifts to the prospective defendant to find better art if she can and invalidate it -- either through the courts or by bringing a reexamination petition to the USPTO.
The patents granted by the USPTO are effectively paper tigers and not worthy of investment trust.
Again, all evidence is to the contrary. The market for assertable technology has never been stronger. Certainly, many patents are unmarketable or unassertable. But the general statement is plainly false.
That the PTO had its head up its collective @$$ on computer patents in the 1990s (which everyone here knew) and that there is the slim possibility that the PTO has now pulled its head back out (which most people don't believe yet).
At least in this case, all evidence is to the contrary. These patents have been super-litigated and held up. The PTO reexam is highly unlikely to change that result, and if it did, would be highly unlikely to survive an appeal. Think about it. If there really was killer art found by some miracle long after the case had been litigated -- we would be discussing their invalidity on the merits.
I am coming to the connclusion that the Blackberry will be staying. People are begining to take sides, not to mention im sure there are plenty of things going on behind the scenes.
Of course the Blackberry will stay online, perhaps with a brief glitch. Nobody, least of all the plaintiffs, wants to see the valuable resource shut down. The problem is that RIM has been totally unyielding -- much to their detriment -- in an effort to win by hard-lining and stonewalling. Now that their failure has been dismal and almost absolute, this is just one last "hail mary" pass to get leverage in a hopeless negotiation.
Once the injunctin is in place, market forces will work their magic.
It says that the USPTO has and will continue to issue bullshit patents on anything put in front of them, but that when a patent affects 25% of the government, regardless of validity, they will toss it out so they don't risk actual reform.
All evidence is to the contrary. What is your basis for suggesting these patents are truly in trouble? A kazillion dollars were spent in defense of RIM at trial, including multi-kazillion dollars in an effort to identify real prior art to invalidate the claims of the patents in suit. After that, a judge and jury, dealing with legal and factual questions respectively, found the patents not invalid, and the judgments were twice affirmed by the Federal Circuit.
It is ROUTINE for initial official actions during examination and reexaminations to ding all or nearly all the claims of a patent, and this indicates nothing about whether the patent claims will survive, either unscathed or with irrelevant amendments. Until this process is over, you are simply hoping past hope that these facts will ultimately support your prejudices. It may feel good for yout to engage in name-calling, but that isn't much of an argument.
Slashdot Mirror
The Fourth Amendment only applies to the Federal government, and no state statute can reduce or increase those rights. Of course, the state itself may be limited by the Fourth (through the Fourteenth), and in that case, no state statute can reduce those rights. California may try to pass laws that provide additional protection not governed by the Fourth, provided it does not violate the Supremacy clause, and that's fine, but its unlikely to limit federal activities expressly provided for by federal statute.
There is no real dispute over the right to wiretap without a warrant (although some claim to the contrary, its not the Federal government doing the claiming), at least not since the Bush administration got into hot water over that issue.
As to the applicability of the Fourth to metadata acquisition, the Supreme Court addressed that point more than thirty years ago in Smith v. Maryland. Cases claiming that Smith is somehow inapplicable to the NSA issues are working their way through the courts, and time will tell. But it is still a legal reach to assert
that metadata acquisition somehow violates the Fourth Amendment, without qualification, given the clear Supreme Court law on the subject.
The question whether copyright existed to protect the "look and feel" of an application was open until the Supreme Court affirmed (4-4 en banc without opinion) the First Circuit decision in Lotus v. Borland. That case took decades to litigate, but addressed whether Borland was permitted in Quattro to execute Lotus 1-2-3 macros (the damned "/" tree of letter commands), even though the macro language was not aptentable. The mere "embodiment" of the "/" tree was deemed by Lotus to be protectible copyright. (In my view, Kapor should have been made a pariah for this assertion, but hey, its just me.)
The First Circuit held that when expression (if you can call the letter tree expression) equates to funtionality, it has merged with the unprotectible functionality. That has been the basis of almost all Copyright law since that time regarding reverse engineering and competition in the software industry. Any other rule would yield considerable chill to adopting new technologies, and in implementing imrpovements. The Internet itself might not have evolved as it did.
The most significant example was the Phoenix BIOS, a reverse-engineered implementation of the BIOS for the IBM PC that made clones possible. Under the Federal Circuit rule in Oracle, the Phoenix (and its progeny) would have been infringing, and we would live in a very different world than we do today.
I am cautiously optimistic that the Federal Circuit will take this matter up en banc and reverse, or perhaps SCOTUS will set it right. Until then, the conflict between Oracle and Borland cases will create a chilling uncertainty in the industry that will educate my granchildren's education, but serve little other good purpose.
In my view, an API merges with its functionality and should be unprotectable. That was the law everywhere in the United States, until today.
I'd be unimpressed with the business acumen of both the entrepreneur and the programmer. An entrepreneur who relates confidential information without an NDA has created difficulties at the very outset of his enterprise, which may or may not be costly later. (Consider the nonsense of the Facebook litigations.) A programmer who refuses work because he won't sign an agreement that merely binds him to refrain from doing something he would never want to do anyway, has refused work for no reason at all.
Of course, an overreaching and overbearing NDA is unsignable, and of course one with other provisions (noncompetes, etc.) raise different issues. But a routine NDA should be a non-problem for an honest programmer who doesn't intend to steal anything. And the failure to sign, at least for me, is a big red flag that another programmer would be a better solution.
Get over yourself. Most of us are fungible. No reason, other than inexperience, naiveté or reserving the right to cheat can be given to refuse, all of which make the programmer unsuitable for the task. As far as the moralistic argument about starting the relationship on the wrong foot, welcome to the twenty-first century, refusal to sign an NDA is precisely that, starting the relationship on the wrong foot -- it assures suspicion. And don't think refusal to sign puts you at a legal advantage, there are plenty of common-law and statutory ways to reach someone who has misappropriated, PARTICULARLY if it is explained to the judge that the refusal to sign was simply for some moralistic, idealistic handshakey kind of deal.
Tl;dr -> Refusing on that basis is a silly idea. Don't be silly.
Two words: Peer Review. The Wikipedia editorial process is not thought well of because the content is not edited by experts, and no feedback or improvement of hte process occurs. This is why the content is ever suspect, and the cred for those who write it is not enhanced by doing so.
Too bad I had to post anon due to predictable mod abuse, because I am serious about this topic, not trolling.
All evidence to the contrary. The issue at point obviously transcends party boundaries. When Orin Hatch chaired Senate Judiciary subcommittee on intellectual property in the 90s, it was the Republicans who led the RIAA charge against Grokster, and it was Leahy who shut down the Inducement of Copyright Act after a massive lobbying effort by public interest groups. The EFF, which could never be considered a conservative think-tank, has taken the front line in shutting down overreaching Copyright abuse.
So, it would appear that the bold-faced (and somewhat bald-faced) effort to turn this into an anti-Obama issue is, in fact, just another troll
It has been suggested in various writings that the newly issued Microsoft patent on an XML-based document would somehow resolve Microsoft's woes against i4i. This is most unlikely. A patent grants only rights to exclude others from practicing a claimed invention, and creates no right at all to practice the claimed invention. It is quite possible to obtain a patent governing a novel and unobvious variation of an existing patented technology. While the second patent would grant its owner the right to exclude people (including the first patent owner) from practicing the variation, it would grant no right to practice the variation if the variation also infringed the first patent.
Of course, it may be the case that the first company may want to practice the variation as well, in which case a cross-licensing deal might be worked out. But the issuing of a new patent on related technology does not, itself, help Microsoft out of its box unless the new technology does not infringe the i4i patent.
This is really pretty easy stuff guys. The examiner searches for prior art, and if he finds it, or an obvious combination of it, badda-bing, lovely rejection. If not, he is bound by statute to allow the patent, period. 35 USC s. 102 ("A person shall be entitled to a patent unless" there exists invalidating art). We all know you hate the law and the standards, but give this poor examiner a break, will you? He HAS to allow the patent UNLESS he comes up with a case to reject it. He HAS to do it. He HAS to. Suggesting bad faith or corruption as the cause of the examiner's allowance is obnoxious and naive.
The examiner did his research, and gave it his best shot. By amendment and argument, Amazon shot down his case. Nobody came to the rescue with any new art, and the examiner didn't find any. Indeed, despite the FAMOUSNESS of this battle, NOBODY has come up with any art to defeat the new claims or the old ones.
There are better battles to pitch than this one.
Nonsense. False. Inaccurate. Mistaken. Did I mention that it is also wrong?
Article III vests the judicial power of the United States in one supreme Court, and such inferior courts as the Congress may from time to time ordain and establish. The power extends to all cases in law and equity. The Supreme court has original jurisdiction (to try cases) in rare and obscure circumstances (that never happens). In all other cases the Supreme Court has appellate jurisdiction, that is, the power to review the decisions of the lower Courts.
Now, there is little doubt since a case in the early days of our nation, Marbury v. Madison, that the Supreme Court has held the power to review acts of the other branches for constitutionality. And there is no doubt they do that quite a bit. But to say that this is the sole scope of their jurisdiction is to completely misunderstand what they do.
Appellate review of lower court cases, essentially, is to review the courts to make sure that they applied the correct law to the facts of the case, and followed the correct procedures in arriving at their fact findings. This is PRECISELY the issue in the e-Bay case, whether the congress meant what it said by writing,
The Federal Circuit looked at this language and decided that injunctions had to be given every time an infringement is found, without regard to principles of equity or the court's view whether the terms are reasonable. Yeah, I know. (and it is a little bit deeper than that, but not much). Anyhooo... the purpose of the Supreme Court's review here has NOTHING AT ALL TO DO WITH THE CONSTITUTION, but rather with respect to the construction and application of the statutory language.
Just like an appellate court is supposed to do.
interesting, but how does one defend "nearly identical" independently created source code from a copyright infringement lawsuit?
Use a clean room development process. To understand why this is so, you must understand how the burdens of proof are distributed in a copyright case. Initially, a plaintiff bears the burden to prove (by a preponderance of the evidence) copying of his work. It does not suffice to prove that the works are merely similar, as you would for a patent case. However, the burden can be satisfied by either direct or circumstantial evidence. Direct evidence would be the credible testimony of someone who saw the copying being done.
Circumstantial evidence can be shown in two ways: (i) by showing access to the work and substantial similarity; or (ii) by showing striking similarity, which is greater, somehow, than another standard called "virtual identity." If the plaintiff meets his burden, the burden shifts to the defendant, who can nevertheless prevail if she can prove, by a preponderance of the evidence, that the similarities can be accounted for by independent development. The difficulty is that it is often hard to prove the negative. This can be done, among other ways, by using a clean room.
If you have access to the evil empire's work, what you can do is to use your knowlege to write a specification of the product you want to have made. Then, to isolate the work from the access, have a gatekeeper (usually a lawyer) confirm that the specification does not contain any protectible expression, and then hire a third party engineer who has never had access to the work. Then you can go back and forth, using the gatekeeper to assure that no expression infects the third party engineer. Voila, an independently developed product that is demonstrably independent.
You can also try to prove independent development in various other ways, such as by credible testimony and documentation of independent development. But then you are subject to the whims of a jury's interpretation of the facts. Clean room is the best way to go, if you can.
What possible benefit would there be to occlude the Patent Office with "working models" of things for which there is no serious question whether it can work, other than to take up space and add expense to the legitimate independent inventor's efforts to secure an invention? The reason for doubting whether a warp engine can work is wholly legitimate, you know, because faster than speed light of macroscopic massive objects is -- well -- contrary to most modern physical theories.
In general, the office is frequently inundated with inventions that would violate the laws of physics or thermodynamics. Not that laws aren't meant to be broken, but in such cases the Office is well within its rights and duties to ask the inventor to put up or shut up. It should be noted that they do not do this, even of most cutting edge inventions, because they recognize that independent inventors rarely have the financial resources to realize their "working models."
Sure, bring in your working model atomic bomb, let's take a look. . .
Copyrights protect works of authorship fixed in tangible media, from unconsented reproduction, distribution and derivation FROM THE WORK and other exclusive rights, subject to a litany of limitations of those rights dedicated to the public. Patents protect novel, useful and unobvious inventions from the unconsented making, using or selling of the invention, whether or not they ever heard of the inventor or the invention, with very few limitations other than a very limited "experimental use" defense.
Copyright exists upon original creation, without respect to novelty, and requires no effort to protect. Patents do not exist until application is made and examined for compliance with statute.
The scope of copyright, which requires copying, is far far narrower than patents. This is why, for example, you can clean room a computer program to avoid copyright infringement, but clean rooming provides no protection.
Different rights to protect different things in different ways with different protections and limitations. This is why their terms are not necessarily the same.
If patents and copyrights were inalienable, then nobody could benefit from their exploitation. It is the alienable nature of property that makes property valuable. Markets make the value.
Who would hire an engineer to do research to develop a product, if you are not permitted to obtain exlcusive rights in the engineer's work? Why not simply wait until the engineer completes the work, if ever, and then negotiate for the rights?
Seriously? These suggestions are completely incredible.
No, I have been around for quite a while, and am intimately familiar with the patent system to boot. While I am willing to fight for your right to be an anonymous coward, I suggest that it is pretty poor practice to begin a posting with an ad hominem attack, anonymous or otherwise. I might be new here, but also be right. I might also be wrong. My arguments might seem to you like condescension, but they are not intended as such -- rather, they are arguments, arguments that you have not joined except at all with a substantive response.
Let me explain it simply. Patents are bad. They are the tools of exploitation (profiteers exploiting the creative people).
At least this individual honestly states his position -- he is not attacking software patents per se, but rather patent in general. Although he gives no reasons in support of his position, other than the representation that "JFYII I studied patent Law. I got a distinction," there do exist reasonable arguments in support of the position he states. But they are irrelevant, because there are are also powerful arguments to the contrary, and the debate is never joined on the merits because the patent haters have a tendency to demagoguery, as exhibited by the poster.
It is understandable why -- the position of the patent-hater has been totally marginalized in the West -- and, more important, will never be enacted into law. As a student of the patent system, the poster knows that it is constitutionally enshrined in the United States, at least, and has a long and illustrious history of success. Two hundred years of technological dominance and industrial innovation do not prove that it was caused by patent system, but does demonstrate that the parade of horribles claimed by patent system detractors --as a whole-- is wildly overstated. Without a patent system, some of our nation's greatest inventors --particularly during the industrial revolution-- might never have been able to claim their due. Finally, nations with strong patent systems, for the most part, have dominated innovation while nations without them have languished.
This is certainly not an argument on which I would ground my defense of the patent system, but rather a taste of the counter-demagoguery that anti-patent movement people face. If not intellectually defensible to claim cause and effect, these points are enormously persuasive in fact, and are likely always to win the day in the Congress. The only place where it really matters.
At any rate, there are other forums where the debate over the patent system can be argued substantively, and I am not about to join this vapid list of random and unsupported remarks.
But as I said -- this isn't about software patents -- rather it is for the most part about criticism of patents, generally, a view that cannot be won in the United States, or about criticism of bad software patents, with which I generally agree, but which calls for repairs to the patent granting system, and not overhaul of the patent system itself.
Patent trolls aren't evil, but rational and predictable, akin to the mold that eventually grows on rotten meat.
You really, really need to listen to yourself. This "argument" is wholly devoid of substance, and is so on its face. First of all, wtf is a patent troll, that distinguishes it (assuming he is a faceless corporation rather than a legitimate and independent inventor) from, say, a property owner or landlord? Are you willing to defend the argument with that substitution, and if so, perhaps we need to rethink on which side of the argument we are laying?
And if you find some fundamental difference (and oh my there are certainly differences), deeper than the sea that makes you rebel at that, what is the difference between the "patent troll" (bad) protecting his intellectual property rights in "software patent" (evil), and the true genius independent inventor (good) defending his honor and creativity in a pioneering invention? Isn't that fundamentally just a question of whether the patent troll is suing a company we like, or an inventor we like is suing an evil corporation?
And what, pray tell, do you mean by a "software patent," that makes it so fundamentally different and unworkable from, you know, a patent on a method that has been enshrined in the patent act from time immemorial? Is it possible that a (good) invention could have been created that relates to electronic devices or circuits, and the methods of using them? If so, how do we distinguish? In partciular, are you seriously suggesting theat each and every one of the claims asserted against RIM in the lawsuit are software patents? Remember, infringement of a single valid claim of a single enforceable patent is sufficient.
Are you sure that NTP is an amoral patent troll asserting an improbable software patent, or is it every patent plaintiff who wins a case that you are complaining about? Are you sure that the patents-in-suit are evil and probably invalid softgware patents, or is it possible that NTP has succeeded to the rights to a meaningful invention? Is it possible, in particular, that RIM is simply a business that lifted itself up on the shoulders of others and arrogantly ignored the legitimate rights of the inventors on whose shoulders they are standing? RIM could have bought out of this suit easily earlier, and only talked settlement when it was clear they were facing an injunction worth billions. If, for just a second, you assume that they borrowed the invention of another and stood as a faceless, amoral giant corproation telling the inventor they will ignore his property for so long as lawyers allow -- where is the evil or emptiness of morality then?
In short, wtf is your argument? Is it:
Patents are bad?
Software patents are bad?
or
Bad software patents are bad?
Can you actually defend your case and distinctions without demagoguing on the third issue (with which we are in agreement)? I haven't seen a sound argument (and there are some) for cases (1) or (2) on this forum for years.
It is true that one of the main problems with the patent system today is that the "novel" requirement is hard to define precisely. But instead of making this requirement more defined, Hollaar pretty much suggests that we should just open the floodgates.
These words don't mean what you think they mean. Novelty is probably one of the easiest and best understood aspect of patent law. Although sometime notions, like "inherent novelty" are complex in practice, novelty is the baby exercise. You appear to be confusing novelty with unobviousness, and thus wholly misunderstanding the proposal.
I am still not sure what you are saying. Is it:
Patents are bad.
or
Bad patents are bad.
or
Software patents are bad.
or
Bad software patents are bad.
If you say so. Its not hard to start talking settlement after you have already lost the case, but I would still consider that pretty unyielding, given that the value of the injunction has been estimated in excess of more than a billion. They could have settled for far less a few years ago.
Anyway, the offer scuttled, and RIM is again playing hardline, hoping past hope that the U.S. government will do for them what the U.S. courts would not, and make this all go away. Not likely, but time will tell.
I responded to the original post, which incorrectly and improperly suggested Prof. Hollaar is ignorant of patent issues. I don't disagree with you as to some of your remarks, and am not nearly so excited about this proposal as is he. However, he did make strong arguments in favor of his proposal, which require deeper analysis than to engage in name calling.
One point to make, however, is that "novelty" is a very specialized term in this context, and it is one of the Hollaar proposal's most difficult issue. A claimed invention is NOVEL, whenever no single prior art reference (or publicly practiced thing) contains ALL of the limitations in the claim. A single technical difference is enough to make the claim NOVEL. However, trivial technical differences, like design decisions are generally not sufficient to make the novel idea unobvious. Accordingly, the scope of "things" that can be protected by a four-year petit patent in his proposal is much, MUCH larger than that for which a big patent.
In other words, the restriction to novelty doesn't limit the scope of patentable content, it limits the scope of bases for REJECTING protection. The present standard is novel, useful and unobvious. The new standard would be merely novel and useful. I think you might agree with me that this could be a bad thing.
Given that this will be exploited by first entrants to quickly moving markets, I am concerned that the principal marketplace protections -- yes pretections -- of the patent system may be circumvented, and that the inventor protection this offers can significantly stunt innovation and American competitiveness.
His proposal DOES address important problems of the status quo, but not all the imporatnt problems of the status quo. And it exacerbates others. The proposal is not wrong because it is imperfect, but its benefits must be fairly weighed against its costs. This is how one makes an argument in the face of new ideas. Calling them "dumb," without more, is neither insightful nor helpful.
So if your point is that the patents are valid
My point was simply that the validity of the patents in view of the prior art considered by the Court has been fully litigated and reviewed on appeal.
, I would have to question whether the USPTO is answerable to courts regarding its decisions
Well, the USPTO appears to think so. Manual of Patent Examination Practice 2659 (decisions of federal courts binding during reexamination)
- because it is most certainly answerable to the whims of congress (my initial point above), and congress is blowing very one-sidedly in this case.
You appear unable to distinguish between the whims of congressmen and ACTS of Congress. The Patent Act provides to the contrary:
35 U.S.C. 141-146 (chapter entitled "Review of Patent and Trademark Office Decision).
Even if the USPTO is ultimately answerable to the courts regarding its decisions, that would mean NTP would have to bring a whole new case against the USPTO - meaning 5 years during which it will be even harder than it has been for them to get an injunction.
Not likely, the injunction may be entered this week. Significantly, while the Administration is bound by the Courts, the Courts are not bound to stay proceedings in view of the reexamination. Many things would have to happen for a delay of the kind you suggest: (1) the PTO has to in fact invalidate the claims -- it has not yet done so; (2) the invalidation would have to be supported by the Patent Board of Appeals; and (3) the invalidation would have to require additional evidence to defeat, rather than mere appeal to the Federal Circuit; and (4) the Federal Circuit sustain the rejections. An unlikely parlay. Finally, it is doubtful that the trial, if it occurred, woudl require nearly as much time as you suggest.
You don't know what you are talking about. Professor Hollaar has an intimate understanding of these issues. He is a blue-chip expert in this arena, and your suggestions to the contrary are wholly unfounded.
Lee Hollaar is one of our nation's most brilliant non-legal scholars regarding intellectual property issues. Lee has been active in intellectual proprerty matters for decades, and is the author of the BNA publication "Legal Protection of Digital Information," which you can read for free online (complete with hyperlinks to case law!) at the AUTHOR's insistance. Although he is no doubt an IP maximalist, his is frequenty a reasoned and well-informed view.
He is the author of or worked closely with the authors of highly influential amicus briefs that led the United States Supreme Courts to decisions in landmark intellectual property law cases. He worked on the hill as a staffer, and also as an advisor to the Federal Circuit Court of Appeals. And he has served as technical expert and special master in many important IP and technology law cases, including United States v. Microsoft.
As it turns out, I do not agree with Lee on the necessity or benefits of his "petit patent" proposal, and might agree with a more critically worded and substantive revision of the poster's remarks. Unlikely many on this forum, I find Lee to be open to new ideas and revisions of his old ones when confronted with solid argument. This flexibility toward truth-seeking rather than lockstep ideology is one of the principal reasons he is such a formidable opponent at a debate on IP matters, and why his opinions, even when they are wrong, are highly influential.
But I would Never, NEVER suggest that the proposal was founded in ignorance. Professor Hollaar has enormous gravitas in the IP community, and his influence is well-deserved. Right or wrong (I often disagree and spar with him), your suggestions about his understanding are wholly unfounded.
What the USPTO has effectively done here is said:
"We rubber stamp almost everything. You shouldn't build a business on a patent until it has been tried in the courts."
That's just plain silly, of course. The patents in this case have withstood intense scrutiny, and been affirmed by the trial court and the Federal Circuit. There is no indication yet that these patents issued, if at all, for failure to adequately examine them for the initial application fee.
A patent is supposed to be a guarantee - the due diligence should have been done before the patent was granted.
Actually, no. Patent examination entails only a novelty search, a topical level search done by patent examiners who are familiar with an art area. If that's what you mean by due diligence, fine. There is a solid indication here that this application was well-examined below. There is no effort during examination to do more than generally survey the specific art area for prior art, and no more could be justified for the iniitial fee. That's it, and that's how it has been for hundreds of years. After that, the burden shifts to the prospective defendant to find better art if she can and invalidate it -- either through the courts or by bringing a reexamination petition to the USPTO.
The patents granted by the USPTO are effectively paper tigers and not worthy of investment trust.
Again, all evidence is to the contrary. The market for assertable technology has never been stronger. Certainly, many patents are unmarketable or unassertable. But the general statement is plainly false.
That the PTO had its head up its collective @$$ on computer patents in the 1990s (which everyone here knew) and that there is the slim possibility that the PTO has now pulled its head back out (which most people don't believe yet).
At least in this case, all evidence is to the contrary. These patents have been super-litigated and held up. The PTO reexam is highly unlikely to change that result, and if it did, would be highly unlikely to survive an appeal. Think about it. If there really was killer art found by some miracle long after the case had been litigated -- we would be discussing their invalidity on the merits.
I am coming to the connclusion that the Blackberry will be staying. People are begining to take sides, not to mention im sure there are plenty of things going on behind the scenes.
Of course the Blackberry will stay online, perhaps with a brief glitch. Nobody, least of all the plaintiffs, wants to see the valuable resource shut down. The problem is that RIM has been totally unyielding -- much to their detriment -- in an effort to win by hard-lining and stonewalling. Now that their failure has been dismal and almost absolute, this is just one last "hail mary" pass to get leverage in a hopeless negotiation.
Once the injunctin is in place, market forces will work their magic.
It says that the USPTO has and will continue to issue bullshit patents on anything put in front of them, but that when a patent affects 25% of the government, regardless of validity, they will toss it out so they don't risk actual reform.
All evidence is to the contrary. What is your basis for suggesting these patents are truly in trouble? A kazillion dollars were spent in defense of RIM at trial, including multi-kazillion dollars in an effort to identify real prior art to invalidate the claims of the patents in suit. After that, a judge and jury, dealing with legal and factual questions respectively, found the patents not invalid, and the judgments were twice affirmed by the Federal Circuit.
It is ROUTINE for initial official actions during examination and reexaminations to ding all or nearly all the claims of a patent, and this indicates nothing about whether the patent claims will survive, either unscathed or with irrelevant amendments. Until this process is over, you are simply hoping past hope that these facts will ultimately support your prejudices. It may feel good for yout to engage in name-calling, but that isn't much of an argument.