Well, you'd be protected by the First Sale Doctrine at least. Once a valid copy is sold, the copyright holder loses the ability to control what happens to that particular copy.
So if IV ever goes a small impoverished nation that is distributing IV's patented bug zapper, can we throw this in his face? Better yet, can someone ask him what he thinks about patenting life-saving drugs and charging a 1st world mark-up in the 3rd world?
That clause says Congress CAN grant patents, not that it MUST or SHOULD. Posner's not arguing that patents are unconstitutional, only that they don't make good policy.
e.g. Congress CAN tax you the poor at a 90% rate, but it's totally legit for someone to say that's a bad idea.
When your fresh new product gets hit by a patent troll with it's coffers full of 10-15 year old patents they will most certainly argue that back in 1998 this was cutting edge research
Sometimes true. But this is actually a feature IMHO. This solves the variable patent length problem -- i.e. what gets 10 years? What gets 20? If your invention is novel now, but will be so obvious in ten years that anyone can independently invent it, then you effectively get a 10 year patent.
I'd argue that this would more efficiently "promote the progress." Under the current system, the incentive is to make small incremental advances, because they're cheaper yet still get the same patent protection as larger advances. With an independent patent defense, the amount of protection would scale with the magnitude of the advance, thereby rewarding larger jumps.
In short, it's thanks to the troll that you were able to come up with that fine product "on your own" last year.
Maybe. Let's suppose the troll's publication actually contributed some indirect insight. One compromise is to permit juries to scale patent damages accordingly. So if the troll's insight contributed to 1% of your product, they get only get 1% of the award they normally would.
Some folks might say that whatever percentage the jury picks is somewhat arbitrary, but juries do this all the time already and it works well enough. For example, in most states, if there's a car accident between two drivers, a jury can decide that one driver is 60% at fault and the other 40%, and divide up damages accordingly.
Even if you prevail over the troll, with all the publicity of a court case, no one else can claim ignorance of the invention after that so the independent defense will only let one inventor across the bridge.
This conflates notice of a patent with notice of the actual invention. Patent holders often point out that the specifics of a patent are often more complicated than the one-liner the press assigns to them -- e.g. Apple might say that while "universal search" has been around for a while, what makes their patent novel is a non-relational database scheme, dynamic linking, insert-technical-jargon-here.
An independent invention defense lets the inventor flip that argument on its head -- why yes, I was aware that Apple has universal search in the iPhone, but universal search been around forever. What makes it special in my product is this technical implementation that wasn't disclosed by all the press reports surrounding the lawsuit.
Another approach, and one Mike sometimes suggests, is that independent invention is really just a proxy for obviousness. In that case, if you win independent invention, you win obviousness, and that kills the patent, thereby letting everyone across the bridge.
Here's who the negotiations leave out -- the companies that don't exist yet.
5 years from now, a start up may create an amazing new piece of technology, yet run afoul of the current patent thicket. Will any of negotiating parties adequately represent the interests of a not-yet-existing competitor? Doubtful.
Re: Hard for me to see how that could work in practice
If you could get around federal preemption, I could see this being asserted as a pure state law claim. Think of it this way: If you let a guy in a ski mask borrow your gun, which he then uses to rob a bank, the bank might sue you for negligence.
Here's the kicker though - under a pure negligence theory, you don't get statutory damages. You only get actual losses (plus punitives, which are still limited relative to statutory damages). Which is probably why copyright holders haven't tried rolling it out more often.
I think you're being a little too hard on the judge Mike. The whole point of a patent is that you don't have to compete. With the exception of FRAND patents, it's difficult to quantify the "damages" incurred from competition. Hence, injunctions banning competition.
That's not to say the patent itself was valid (or should be valid) or that Samsung was infringing. But I wouldn't chalk up the injunction itself as a crazy-activist-judge-ruling.
The current Supreme Court seems to take a fairly broad view of the First Amendment -- e.g. Citizens United -- so I wouldn't be too surprised if the argument got upheld.
To take it to an extreme, Verizon's argument is this: Imagine I own a billboard, which I permit Democrats to put ads on, but not Republicans. Net neutrality is like the government mandating that I have to host Republican ads as well. That seems to raise something of a First Amendment concern.
Obviously, the distinction is that Verizon is making "expressive choices" based on commercial rather than political concerns, but Citizens United makes that line a little murkier than it used to be.
The government subsidy argument is interesting, but I'm not sure how far it'll go. One of the arguments being advanced against Citizens United was that states had the right to regulate corporate speech as a condition of the "subsidy" corporations get in terms of limited liability, favorable tax treatment, etc. That argument didn't quite work out.
Side note -- universities actually are taking steps to curb note-sharing, usually through some policy you have to agree to when you enroll but sometimes via IP theories.
Samsung copies the iPhone but adds stuff to it -- super AMOLED,different processors, larger screen, Android, etc. And it's selling at a different price range.
Not sure what Samsung can add to Facebook.
That said, I think the takeaway might be less about copying and more about playing to your strengths. If Samsung had a reputation for building great software, I'd be curious. As it is, Samsung's Touchwiz software is definitely the weakest part of its phones. And I don't have a lot of confidence in Samsung's ability to build its own social network.
But yeah, this doesn't seem out-of-place for a preliminary injunction. I'd hazard that Apple's argument is two-fold here:
* The loss of market share is irreparable harm. It's impossible to identify what market share Apple would lose because of Samsung's alleged infringement, or how much that's worth. So money damages are inadequate.
* In response to Mike's point about a royalty -- you're assuming there's a set royalty rate. I'm assuming the patents that Apple is asserting aren't FRAND patents. As such, they're under no obligation to license AT ALL. Apple's arguing that the true value of the patent isn't in pressing for royalties, a la Microsoft, but in maintaining the existing monopoly.
There might be an argument for compulsory licensing of patents (although I'm skeptical). And more competition would be nice, although the whole point of patents is to limit competition. But while patent law is sort of screwy, none of this is the judge's fault.
That's actually a good case for an independent invention defense. Assume that to win a patent case, you had to prove that the defendant copied your invention from something you did. If you bundled a technical manual explaining how the invention worked with every product you sold, and the defendant purchased said product and manual, you'd have a relatively easy case.
"How do you know I copied your invention?"
"You bought the how-to manual."
On the post: If I Were The MPAA... How I Would Deal With My Car Break-In
Re: Re:
But suppose the First Sale Doctrine was weakened, e.g. because it's a virtual copy, it's only "licensed" rather than sold. That means each subsequent owner of the iPod who played the song would be liable for infringement, theft or not. See http://www.techdirt.com/articles/20120608/18350819256/why-supreme-court-needs-to-make-sure-that-sell ing-used-ipad-isnt-copyright-violation.shtml
On the post: Nathan Myhrvold: It's Ok To Kill Innovation If You're Also Killing Mosquitoes
What about the children?
On the post: Judge Posner On A Mission To Fix Patents; We Have Some Suggestions
Re: more dissembling by Masnick
e.g. Congress CAN tax you the poor at a 90% rate, but it's totally legit for someone to say that's a bad idea.
On the post: Judge Posner On A Mission To Fix Patents; We Have Some Suggestions
Re: Independent invention.
Sometimes true. But this is actually a feature IMHO. This solves the variable patent length problem -- i.e. what gets 10 years? What gets 20? If your invention is novel now, but will be so obvious in ten years that anyone can independently invent it, then you effectively get a 10 year patent.
I'd argue that this would more efficiently "promote the progress." Under the current system, the incentive is to make small incremental advances, because they're cheaper yet still get the same patent protection as larger advances. With an independent patent defense, the amount of protection would scale with the magnitude of the advance, thereby rewarding larger jumps.
Maybe. Let's suppose the troll's publication actually contributed some indirect insight. One compromise is to permit juries to scale patent damages accordingly. So if the troll's insight contributed to 1% of your product, they get only get 1% of the award they normally would.
Some folks might say that whatever percentage the jury picks is somewhat arbitrary, but juries do this all the time already and it works well enough. For example, in most states, if there's a car accident between two drivers, a jury can decide that one driver is 60% at fault and the other 40%, and divide up damages accordingly.
This conflates notice of a patent with notice of the actual invention. Patent holders often point out that the specifics of a patent are often more complicated than the one-liner the press assigns to them -- e.g. Apple might say that while "universal search" has been around for a while, what makes their patent novel is a non-relational database scheme, dynamic linking, insert-technical-jargon-here.
An independent invention defense lets the inventor flip that argument on its head -- why yes, I was aware that Apple has universal search in the iPhone, but universal search been around forever. What makes it special in my product is this technical implementation that wasn't disclosed by all the press reports surrounding the lawsuit.
Another approach, and one Mike sometimes suggests, is that independent invention is really just a proxy for obviousness. In that case, if you win independent invention, you win obviousness, and that kills the patent, thereby letting everyone across the bridge.
On the post: State Department Wants To Troll Terrorists Online
Re:
On the post: State Department Wants To Troll Terrorists Online
Time Suck
"I can't. This is important."
"What?"
"Someone is WRONG on the Internet."
http://xkcd.com/386/
On the post: EU To Open Up Secret Clinical Trial Data; TPP Looking Even More Retrogressive
Lives
Having lots of data available is crucial to evaluating, for example, if an anti-inflammatory drug is really giving people heart attacks.
On the post: Patent Office Releases Rules To Let Third Parties Provide Documents To Help Reject Patent Applications
Productivity
On the post: UN Wants To Host 'Patent' Summit To Deal With Smartphone Patent Thicket
Non-legacy players
5 years from now, a start up may create an amazing new piece of technology, yet run afoul of the current patent thicket. Will any of negotiating parties adequately represent the interests of a not-yet-existing competitor? Doubtful.
On the post: Court Says Negligence Claim For Allowing Downloading On Your WiFi Is 'Untenable'
Re: Hard for me to see how that could work in practice
Here's the kicker though - under a pure negligence theory, you don't get statutory damages. You only get actual losses (plus punitives, which are still limited relative to statutory damages). Which is probably why copyright holders haven't tried rolling it out more often.
On the post: And So It's Come To This: Samsung/Google Forced To Degrade Features In Patent Dispute
Patent = No Competition
That's not to say the patent itself was valid (or should be valid) or that Samsung was infringing. But I wouldn't chalk up the injunction itself as a crazy-activist-judge-ruling.
On the post: Judge Posner: Do Most Industries Even Need Patents?
Re: Re: Patent Abolition
Also, if we were serious about disclosure, we'd limit the laws protecting trade secrets.
On the post: Verizon's Bizarre Constitutional Argument: Net Neutrality Rules Violate Its First & Fifth Amendment Rights?
Citizens United
To take it to an extreme, Verizon's argument is this: Imagine I own a billboard, which I permit Democrats to put ads on, but not Republicans. Net neutrality is like the government mandating that I have to host Republican ads as well. That seems to raise something of a First Amendment concern.
Obviously, the distinction is that Verizon is making "expressive choices" based on commercial rather than political concerns, but Citizens United makes that line a little murkier than it used to be.
The government subsidy argument is interesting, but I'm not sure how far it'll go. One of the arguments being advanced against Citizens United was that states had the right to regulate corporate speech as a condition of the "subsidy" corporations get in terms of limited liability, favorable tax treatment, etc. That argument didn't quite work out.
On the post: US Gov't And Hollywood Have Turned Kim Dotcom Into A Beloved Cult Hero
Re: This can only mean one thing
On the post: University Sues Student For Graduating Too Fast
Re: A classic Mike moment
http://www.theaggie.org/2012/02/14/uc-csu-curb-use-of-note-sharing-websites/
On the post: How Not To Innovate: Trying To Create An Exact Replica Of Another Service
Re: Fails for a different reason.
Not sure what Samsung can add to Facebook.
That said, I think the takeaway might be less about copying and more about playing to your strengths. If Samsung had a reputation for building great software, I'd be curious. As it is, Samsung's Touchwiz software is definitely the weakest part of its phones. And I don't have a lot of confidence in Samsung's ability to build its own social network.
On the post: European Parliament Declares Its Independence From The European Commission With A Massive Rejection Of ACTA. Now What?
Re: Re: Re:
"America has its problems, but I would rather have its problems than most any other country’s in the world."
On the post: Getting More People Aware Of The Problems Of Patents & Copyright: Reducing Social Distance
Elect entrepreneurs to office
On the post: Dear Judge Koh: Competition Is No Reason To Ban A Phone
Re:
But yeah, this doesn't seem out-of-place for a preliminary injunction. I'd hazard that Apple's argument is two-fold here:
* The loss of market share is irreparable harm. It's impossible to identify what market share Apple would lose because of Samsung's alleged infringement, or how much that's worth. So money damages are inadequate.
* In response to Mike's point about a royalty -- you're assuming there's a set royalty rate. I'm assuming the patents that Apple is asserting aren't FRAND patents. As such, they're under no obligation to license AT ALL. Apple's arguing that the true value of the patent isn't in pressing for royalties, a la Microsoft, but in maintaining the existing monopoly.
There might be an argument for compulsory licensing of patents (although I'm skeptical). And more competition would be nice, although the whole point of patents is to limit competition. But while patent law is sort of screwy, none of this is the judge's fault.
On the post: James Watson, Co-Discoverer Of DNA's Structure, Says 'Patenting Human Genes Was Lunacy'
Re:
"How do you know I copied your invention?"
"You bought the how-to manual."
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