It's not true anymore, if it ever was. General internet searches can be, and are, done by patent examiners. I've received rejections under 103 based on internet search results.
Non-patent literature (NPL) generally is a valid source of prior art. People who say they are limited to search prior patents are mistaken.
MPEP section 904 explicitly provides for this: "The Internet is an Office-approved search tool that may be considered when planning and conducting a search for an application. The Internet provides the Office the opportunity to enhance operations by enabling patent examiners to efficiently locate and retrieve additional sources of information relating to a patent application."
Section 901.06 deals specifically with non-patent publications.
Who is following the law here, the examiner? Sounds like the prior art search was done poorly. it's not hard for an examiner to put together a rejection under 103. Once the file history is available we can see what actually happened, but this certainly looks to be the product of poor examiner, not procedures mandated by law.
It's possible. Doesn't look like the file history is accessible yet, but once it is you can see the original claims they filed and what arguments, if any, they made with respect to the fact that this is implemented on a mobile device. Just putting it on a mobile device, however, should not be enough to get around a 103 (obviousness) rejection.
I'm interested to see the file history when available so I can see what prior art the examiner cited in this case. I suspect this is an invalidity waiting to happen.
You can start with 17 U.S. Code. I don't think there is an explicit definition of "author" there, but the use of the term throughout the code indicates that it is contemplated to be a human being. Also, back in 2014, the Copyright Office, who is tasked with interpreting the code and issuing rules, advised that works created by animals were not subject to copyright. The court is following along that same line of reasoning. If we want to extend copyright protection to works created by animals, Congress would have to amend the copyright act to provide for it.
Problem with this assessment is there is no infringement (or theft, if you prefer that term) because the photographer had no legal right to exclusive use of the photo to begin with. There is no copyright in it, and that would be his only means of controlling the photo's reproduction etc. Since it is in the public domain and free for anyone to use, promoting "theft" of it is impossible.*
You'd think any attorney who even takes on this sort of thing would know (or should know) that it is both without merit and likely to spark a backlash against the client. Even an attorney working from home.
It's getting the point where it should be malpractice for an attorney to even consider filing this kind of suit without making every effort to talk the client out of it and to point out that they're likely to do much more harm than good to themselves.
I've only had one client who was even considering trying to bring action against someone who left an online review (not anonymous in that case), and I sent the client links to a bunch of these types of stories and he concluded on his own that he didn't want to move forward with any kind of lawsuit.
Yes, we have 228 years of case law on the 1st Amendment, and the state of that case law at any given time, at least insofar as it comes form the Supreme Court, sets the boundaries of the 1st Amendment. If the Bill of Rights were limited to only those things that were specifically stated in the text of the amendments, they'd be pretty poor protection against government overreach. The 4th Amendment, for example, does not include digital or electronic media, however it is quite clear from U.S. case law that the amendment also provides protections for a citizens' interests in those items.
Skipped ahead to 19:45 in the oral arguments. Having argued an appeal in front of a circuit court, I was cringing on behalf of this gov't attorney the whole time. I wonder what he did for the firm to send him to make those arguments :D
Some ex post facto laws have been allowed to stand. More pertinent, here, I believe Supreme Court case law on this establishes the Constitutional provision as applying to criminal law, not civil law.
Won't have anything to do with an equivalent of cybersquatting. All of the content-neutral requirements of the Lanham Act are still in place. "Squatting" on a trademark is no harder or easier now than before. You still have to show use in commerce relatively quickly, even if you file an intent-to-use application.
You can identify similarities between many trademarks. The question is whether they're so similar that there is a likelihood of confusion on the part of the beer buyers. I think that's quite a stretch here.
A patent would prevent third parties from producing the patented product (e.g. infringing ink cartridges). What was happening here is that a third party was refurbishing and reselling the same physical cartridges that Lexmark had already sold once. That is why the exhaustion doctrine applies. Exhaustion wouldn't apply to an infringing third party product, so if this third party started making its own cartridges instead of just reselling old Lexmark cartridges, they'd have a problem.
Maybe PayPal thinks its mark is famous. They don't have to show a likelihood of confusion or any competition between themselves and Pandora if that's the case (assuming they've alleged it and the mark is in fact found to be famous).
It's what they're supposed to do. The system is designed with the idea that the Supreme Court will be restrained, resolve issues directly in front of them narrowly, not rule on issues not sufficiently before the court, avoid Constitutional questions if possible, and so on.
It doesn't have to be overridden, overruled, or ignored. It's a concurring opinion and has no legal weight, so things will proceed as usual unless this judge can get the majority of the court to agree with him at some point.
Not the part everyone is excited about, because it's not the majority view of the court. I suppose you could present it as persuasive evidence, but that's about it.
You could certainly make a similar argument, but I'm not convinced you're going to get a court to accept it. The First Amendment has never been recognized as absolute, and while I personally favor an expansive reading of the First Amendment I think you'll have a hard time convincing a court that the DMCA anti-circumvention provision violates it. All copyright covers information, so the same argument could be made with respect to any copyright, which clearly goes against the intent of the Constitution. Even if you could get there in patents, I don't think it likely it would be expanded.
In case a lot of people aren't making it to the bottom of the original post...
The language everyone is fixated on comes from a concurring opinion, not the opinion of the majority of the court, and is therefore not binding precedent. More interesting academically, at least unless and until Mayer can persuade a majority or the Supreme Court adopts his viewpoint (which isn't likely to happen soon).
On the post: Stupid Patent Of The Month: JP Morgan Patents Interapp Permissions
Re: Re: Re: Stupid Patent of the Month
Non-patent literature (NPL) generally is a valid source of prior art. People who say they are limited to search prior patents are mistaken.
MPEP section 904 explicitly provides for this: "The Internet is an Office-approved search tool that may be considered when planning and conducting a search for an application. The Internet provides the Office the opportunity to enhance operations by enabling patent examiners to efficiently locate and retrieve additional sources of information relating to a patent application."
Section 901.06 deals specifically with non-patent publications.
On the post: Stupid Patent Of The Month: JP Morgan Patents Interapp Permissions
Re: Stupid Patent of the Month
On the post: Stupid Patent Of The Month: JP Morgan Patents Interapp Permissions
Re:
I'm interested to see the file history when available so I can see what prior art the examiner cited in this case. I suspect this is an invalidity waiting to happen.
On the post: Monkey Selfie Case May Settle: PETA Knows It'll Lose, And The Photographer Is Broke
Re: Re: Re: Re: Daily Mail
On the post: Monkey Selfie Case May Settle: PETA Knows It'll Lose, And The Photographer Is Broke
Re: Re: Re: Moving On
*this all applies to the U.S.
On the post: Psychiatrist Files Lawsuit Over Wordless One-Star Review
Re:
You'd think any attorney who even takes on this sort of thing would know (or should know) that it is both without merit and likely to spark a backlash against the client. Even an attorney working from home.
On the post: Psychiatrist Files Lawsuit Over Wordless One-Star Review
I've only had one client who was even considering trying to bring action against someone who left an online review (not anonymous in that case), and I sent the client links to a bunch of these types of stories and he concluded on his own that he didn't want to move forward with any kind of lawsuit.
On the post: Third Circuit Appeals Court Establishes First Amendment Right To Record Police
Re: Re: Re: missing something
On the post: Third Circuit Appeals Court Establishes First Amendment Right To Record Police
On the post: Coal CEO Threatens John Oliver With A SLAPP Suit
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On the post: Supreme Court Reminds US Government That Hate Speech Is, In Fact, Free Speech
Re: It makes sense...
On the post: Brewery Sues Competitor Over Schooner Logos And Use Of The Word 'Head'
Re: I think they look similar
On the post: Brewery Sues Competitor Over Schooner Logos And Use Of The Word 'Head'
Appears as though they're using their greater market power to try to bury Logboat in legal fees.
On the post: Strike Three: Lexmark Can't Use Patents, Trademarks Or Copyright To Block Third Party Ink Cartridges
Re: Re:
A patent would prevent third parties from producing the patented product (e.g. infringing ink cartridges). What was happening here is that a third party was refurbishing and reselling the same physical cartridges that Lexmark had already sold once. That is why the exhaustion doctrine applies. Exhaustion wouldn't apply to an infringing third party product, so if this third party started making its own cartridges instead of just reselling old Lexmark cartridges, they'd have a problem.
On the post: PayPal Sues Pandora Over Yawn-Inducing Logos And Tweets About People Opening The Wrong App
On the post: Supreme Court Adds Yet Another Smackdown To Patent Court, Says It Misinterpreted Patent Law In Apple/Samsung Case
Re: Ah... the Supreme SNORT
On the post: Prominent Pro-Patent Judge Issues Opinion Declaring All Software Patents Bad
Re: This shall not stand!
On the post: Prominent Pro-Patent Judge Issues Opinion Declaring All Software Patents Bad
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On the post: Prominent Pro-Patent Judge Issues Opinion Declaring All Software Patents Bad
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On the post: Prominent Pro-Patent Judge Issues Opinion Declaring All Software Patents Bad
The language everyone is fixated on comes from a concurring opinion, not the opinion of the majority of the court, and is therefore not binding precedent. More interesting academically, at least unless and until Mayer can persuade a majority or the Supreme Court adopts his viewpoint (which isn't likely to happen soon).
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