Ethics, Week 9, Nov 3 paper2 Speech Patents Ethics & libel: how far should we go talking about, say, Joe the Plumber? I saw a reporter's discussion (in the print newspaper) of why he should have NO expectation of privacy. Joe the plumber: (Samuel Joseph Wurzelbacher) no license He *might* need a journeyman's license; this is unclear. back taxes: $1,182 to Ohio child support Helen Jones-Kelly: director of Ohio Dept of Job & Family Services, authorized check on Wurzelbacher's child-support payments Julie McConnell, of the Toledo Police Dept, has been charged also. divorce records: 2006 income was $40K voter records He's registered, but his last name is misspelled "Worzelbacher" and Robert Wurzelbacher, son-in-law of Charles Keating & convicted of Savings & Loan fraud; 40 months in prison The last two is public, on paper records at the courthouse. The first one *might* be. "Given McCain’s tactics, it would not at all surprise me if this character [Wurzelbacher] has a real shady history" -- run4chocolate.wordpress.com/2008/10/16/joe-the-plumber-a-wurzelbacher-charlatan Lucas county clerk of courts: http://apps.co.lucas.oh.us/onlinedockets/Default.aspx Can we talk about Wurzelbacher's divorces? His finances? After all, HE brought up his hope of buying a business for $250K. Can we describe him as clueless, since he's confused cost with profit? Or should Obama or McCain be the target? What should we say if we find a record under the name "Wurzelbacher"? What should we say if we don't find a record we expect (eg license)? To hell with *facts*: see http://www.slate.com/id/2202480 ================================================================= ============= Hit Man published by Paladin Press, written by "Rex Feral", supposedly a single mom who writes true-crime books for a living. It is likely a work of fiction. To find it, google "hit man" "rex feral" Amazon.com In 1993, James Perry murdered Mildred Horn, her 8-year-old son Trevor, and nurse Janice Saunders. He was allegedly hired by Lawrence Horn. In Rice v Paladin Enterprises (1997), the federal court of appeals (4th circuit) held that the case *could* go to jury trial; ie freedom-of-press issues did not automatically prevent that. Many of the specifics of the Perry murders were out of the book. Many of them are rather compellingly "obvious": pay cash, rent a car under an assumed name, steal an out-of-state license plate, use an AR-7 rifle, make it look like a robbery The book also explains how to build a silencer, which is not at all obvious; Perry allegedly did just this. "The parties agree that the sole issue to be decided by the Court . . . is whether the First Amendment is a **complete** defense, as a matter of law, to the civil action set forth in the plaintiffs' Complaint. All other issues of law and fact are specifically reserved for subsequent proceedings." (emphasis added) Paladin has stipulated not only that, in marketing Hit Man, Paladin "intended to attract and assist criminals and would-be criminals who desire information and instructions on how to commit crimes," J.A. at 59, but also that it "intended and had knowledge" that Hit Man actually "would be used, upon receipt, by criminals and would-be criminals to plan and execute the crime of murder for hire." J.A. at 59 (emphasis added). Indeed, the publisher has even stipulated that, through publishing and selling Hit Man, it assisted Perry in particular in the perpetration of the very murders for which the victims' families now attempt to hold Paladin civilly liable. J.A. at 61. [note 2] [242] Notwithstanding Paladin's extraordinary stipulations that it not only knew that its instructions might be used by murderers, but that it actually intended to provide assistance to murderers and would-be murderers which would be used by them "upon receipt," and that it in fact assisted Perry in particular in the commission of the murders of Mildred and Trevor Horn and Janice Saunders, the district court granted Paladin's motion for summary judgment and dismissed plaintiffs' claims that Paladin aided and abetted Perry, holding that these claims were barred by the First Amendment as a matter of law. What's going on here? Why did Paladin stipulate all that? It looks to me like Paladin was acknowledging the hypotheticals as part of its claim that they didn't matter, that the first amendment protected them. The court ruled it did not: long-established caselaw provides that speech--even speech by the press--that constitutes criminal aiding and abetting does not enjoy the protection of the First Amendment Past cases that lost: publishing advice on how to make illegal drugs publishing advice on how to cheat on your taxes Brandenberg v Ohio was cited as a case of protected speech advocating lawlessness. But this case, due to Paladin's stipulations [!!], was much more *specific*. ===================== A popular theory was that after Paladin Press settled the case (which they did, under pressure from their insurer), the rights to the book ended up in the public domain. Paladin claims otherwise; however, the Utopian Anarchist Party promptly posted the entire book at overthrow.com and that was that. [Other parties may also have posted the book independently] (The bootleg copies don't have the diagrams, though) It has been claimed that _Hit Man_ was sold almost entirely to non-criminals who simply like antiestablishment stuff. Check out amazon.com for current prices of used editions. Other bad materials: Encyclopedia of Jihad Bomb-making instructions generally Note EofJ has significant political/religious component! 4th-circuit opinion: http://www.bc.edu/bc_org/avp/cas/comm/free_speech/rice.html Also see paladinpress.com ================================================================= ================================================================= Dozier Internet Law, www.cybertriallawyer.com [sort of a step back to copyright] 1. Lots of solid mainstream copyright cases: architectural designs jewelry designs advertising work (sitforthecure.com) stolen websites for: gamers sites physicians small businesses 2. Their AMAZING user agreement: dozierinternetlaw.cybertriallawyer.com Where are they coming from? ================================================================= corporate cybersmear: essential problem: * employee posts something critical at a site, "anonymously" * employer sues site, claiming libel * site caves, and provides real identity of poster * suit is dropped, poster is FIRED. This is a significant issue in the "free speech" of employees. See http://www.chillingeffects.org/johndoe/faq.cgi Note that the issue here is the use of the legal system to find identities of anonymous posters. Note that Baase has an extensive section on anonymity. What about employee bloggers? They are free to speak Their employers are free to fire them ================================================================= France (LICRA) v Yahoo: Baase, section 3.3.2 Yahoo offered nazi memorabilia for sale on its auction site. THey were sued by LICRA (LIgue Contre le Racisme et l'Antisémitisme) (This is a JURISDICTIONAL case that probably *should* be discussed elsewhere, except that it addresses a free-speech issue.) French courts decided they did have jurisdiction to hear the case. But Yahoo has no assets in France. Appellate US court (9th circuit), en banc, held that the US *might* have jurisdiction in the reverse case against LICRA (and UEJF). BUT the case was directed to be "dismissed without prejudice", as it's not yet ready to be decided. It was not "ripe". (same thing happened to US v Warshak, when the 6th circuit en banc ruled the case was not "ripe") Yahoo was asking a US court to assert that France had no authority. The 9th circuit refused to do that. Yet. Judge William Fletcher: Yahoo! is necessarily arguing that it has a First Amendment right to violate French criminal law and to facilitate the violation of French criminal law by others. As we indicated above, the extent -- indeed the very existence -- of such an extraterritorial right under the First Amendment is uncertain. Part of the issue: Yahoo was not able to point to any speech of its own that was "chilled" by the french decision. Yahoo *did* adopt an anti-hate-speech policy. The court did *not* address the notion that the only way to restrict access in France would be to restrict access in the US. These issues led to the declaration of non-ripeness. ****** JURISDICTIONAL case that was left undecided At about the same time, there was growing realization that advertising-based geolocation software (IP addr -> location) was better than sometimes understood, and that by using such software it *was* possible to block apperarance in France (at least to 90% of users). Yahoo never really implemented this; they decided instead to ban all "hate material", *everywhere*. This includes KKK memorabilia. ====================================================================== Is source code speech? Well, is it? Cases where it's been debated: * encryption * DMCA anti-circumvention (eg deCSS) Encryption: BIG issue for the US Gov't, 1977 - ~ 2000 For a while, the NSA (National Security Agency) tried very hard to block even publication of scientific papers. They would issue "secrecy orders". But eventually the government's weapon of choice was ITAR: International Trade in Armaments Regulations Suppose you make F-16 fighters. You need an export permit to sell these oversees. What about if you make open-source encryption software? Ditto! Even if you GIVE IT AWAY!! BOOKS were exempt. The rule applied only to machine-readable forms. For a while, there was a machine-readable T-shirt with RSA on it. Zimmermann case: Phil Zimmermann released PGP ("Pretty Good Privacy") as an open-source project in the early 90's. The gov't made him promise not to do it again. Zimmermann's associates outside the US released the next version. Zimmermann was under indictment for three years, but charges were eventually dropped. ========================= Schneier case: Bruce Schneier wrote a textbook on cryptography. All the algorithms were printed, and also included on a FLOPPY in the back of the book. Phil Karn applied for an export license. It was granted for the book, denied for the floppy. ======================== Bernstein case: Daniel Bernstein created a cipher called "snuffle". In 1995 he sued to be allowed to post it to a course website. In 1997 the district court ruled in his favor. In 1999 a 3-judge panel of the 9th circuit ruled in his favor, although more narrowly. Opinion of Judge Betty Fletcher: http://epic.org/crypto/export_controls/bernstein_decision_9_cir.html Prior-restraint was issue Bernstein's right to speak is the issue, not foreigners' right to hear But does source code qualify? see p 4230 4232: for loop 4233: LISP Snuffle was also intended, in part, as political expression. Bernstein discovered that the ITAR regulations controlled encryption exports, but not one-way hash functions. Because he believed that an encryption system could easily be fashioned from any of a number of publicly-available one-way hash functions, he viewed the distinction made by the ITAR regulations as absurd. To illustrate his point, Bernstein developed Snuffle, which is an encryption system built around a one-way hash function. Here is Fletcher's main point: Thus, cryptographers use source code to express their scientific ideas in much the same way that mathematicians use equations or economists use graphs. Of course, both mathematical equations and graphs are used in other fields for many purposes, not all of which are expressive. But mathema- ticians and economists have adopted these modes of expres- sion in order to facilitate the precise and rigorous expression of complex scientific ideas.13 Similarly, the undisputed record here makes it clear that cryptographers utilize source code in the same fashion. Gov't argument: ok, source code might be expressive, but you can also run it and then it *does* something: it has "direct functionality" Fletcher: source code *is* meant, in part, for reading More importantly, the idea of "direct functionality" is a problem: what if a computer could be ordered to do something with spoken commands? Would that make speech subject to restraint? In 1999, the full 9th circuit agreed to hear the case; it was widely expected to make it to the supreme court. But it did not. The gov't dropped the case. ====================================================================== Junger v Daley: Junger was prof at Case Western Reserve University. He wanted to teach a crypto course, with foreign students. 6th circuit: The issue of whether or not the First Amendment protects encryption source code is a difficult one because source code has both an expressive feature and a functional feature. The district court concluded that the functional characteristics of source code overshadow its simultaneously expressive nature. The fact that a medium of expression has a functional capacity should not preclude constitutional protection. Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment. BUT: there's still a recognition of the need for balancing: We recognize that national security interests can outweigh the interests of protected speech and require the regulation of speech. In the present case, the record does not resolve whether ... national security interests should overrule the interests in allowing the free exchange of encryption source code. ====================================================================== DeCSS case There are several; the best known is MPAA v Reimerdes, Corley, and Kazan. Eric Corley, aka Emmanuel Goldstein, is the publisher of 2600 magazine. Corley is the real publisher. DeCSS was developed in ~1999, Judge Kaplan memorandum, Feb 2000 As a preliminary matter, it is far from clear that DeCSS is speech protected by the First Amendment. In material respects, it is merely a set of instructions that controls computers. He then goes on to consider the "balancing" approach between free speech and regulation, considering the rationale for the regulation and the relative weights of each side. The computer code at issue in this case does little to serve these goals [of expressiveness]. Although this Court has assumed that DeCSS has at least some expressive content, the expressive aspect appears to be minimal when compared to its functional component. Computer code primarily is a set of instructions which, when read by the computer, cause it to function in a particular way, in this case, to render intelligible a data file on a DVD. It arguably "is best treated as a virtual machine . . . ." [ref to Volokh] Note that this renders irrelevant the Bernstein precedent! Gallery of DeCSS: www.cs.cmu.edu/~dst/DeCSS/Gallery Check out the haiku also page1.gif mathematical description DVD logo Does the entire gallery serve to establish an expressive purpose? ====================================================================== ====================================================================== PATENTS: Baase §4.7 Do they help advance progress? or hinder it? Intended to cover INVENTIONS rather than IDEAS. If you have an idea to sell hamburgers with salsa, or newspapers & beer together, or to create a website where people can post their own stuff, that's an IDEA. It can't be protected: everyone else is entitled to copy it freely. ============================================================= My (former) three-part test on when it is appropriate to recognize software patents: 1. The Supreme Court has turned down your last appeal 2. Federal marshals surround your cabin in the woods 3. You are out of ammo This could probably get me in trouble. ============================================================= Issues: * problems with the patent system generally * problems with the patent office as applied to software * fundamental problems with software patents Wright brothers patent on wing-warping History of software patents for a long time, software was held to be unpatentable, as mathematical algorithms are unpatentable. 1972: Gottschalk v Benson: can't patent a mathematical algorithm 1973: ATT somehow manages to patent setuid bit, claiming it's hardware patent dedicated to the public domain in 1979. 1981: Diamond v Diehr: computer + machine IS patentable. For a long time after, software patents always described the software in combination with some hardware device. Diamond v Diehr: SCOTUS says that an invention isn't automatically *un*patentable just because it contains an algorithm But PTO & lower courts read in the converse: algorithms are patentable Problem of "non-obviousness" the rules state that it's not enough to prove it's obvious *today*. Uh oh. Problem of "prior art" did someone else discover it first? often there are arguments about this Broad patents for fundamental new ideas, narrow patents for improvements compatibility issues: What if the default, standard implementation is patented? GIF => PNG MP3 => ogg vorbis software patent v copyright ============================================= Some patents xor cursor cpu Stack Pointer register Using an xml document to describe the grammar of another xml document British Telecom patent on the hyperlink, files 1976, granted 1989 Altavista patents on "web searching" compression algorithms RSA encryption choose primes p and q. Reveal n=pq Find e and d so x^(ed) = x mod n (this is not hard) Common values for e: 3, 5, 17, 257, 65537 e is the public key, d is the private key Uses STANDARD ARITHMETIC in its calculations The patent is for the APPLICATION of encryption! Compton 1989 patent on multimedia, despite Apple Hypercard in ~1987. Steir's patent 5,060,171 on artificially adding hair to a person's image [Garfinkel article] SetUID patent (patented and then placed by ATT into public domain in 1979) Eolas v Microsoft: About a way for running "applets" in a browser window. Is this really an "invention"? NTP v RIM: the blackberry patent mp3 Lempel-Ziv / LZW compression natural-order recalculation in spreadsheets: Cell A depends on B if A needs B's value in its formula Rule: Before calculating A, calculate all cells A depends on. Duh. The algorithm is called "topological sort"; 1963. RSA patents MS has tried to patent FAT disk format ==================== compatibility issues: GIF => PNG MP3 => ogg vorbis PTO (Patent & Trademark Office) problems: * researching "prior art" * secrecy of the process ignorance is no defense: "submarine" patents entire process is secret: you can be making good-faith effort to be noninfringing and get hit with a huge verdict. wilful: you had advance notice of infringing. Your belief that the patent was invalid is NOT a defense. Damages automatically triple. Three groups: * small inventors * large corporations * patent-holding companies how large corporations manage: patent banks legal departments cross-licensing small inventors: market your invention yourself?? sell to a holding company These are tricky places. They produce nothing, they interfere with progress, but they *do* produce a market for new patents. Open source voip Legal advantage of small inventor: somewhat diminished with rise in legal fees & increased ambiguity But small inventors *can* still sell to patent-holding companies. Legal situation of large corporations: * hard for small inventors to sue them * can cross-license =============================================== Is software legitimately a special case? Microsoft v Eolas (+ Univ of California, as part of UCSF) MS lost; ordered to pay 521 million Patent covers "a system allowing a user of a browser program ... to access and execute an embedded program object," or small computer programs, often referred to as "applets" or "plug-ins." "Viola" prior art: may or may not be Eolas started by Michael Doyle, faculty member of UCSF[?]. Berkeley has an interest in the patent. About a way for running "applets" in a browser window. Is this really an "invention"? Patent: 5,838,906 ========================================================== NTP v RIM (Research In Motion): maker of Blackberry Settled for 612 million in Mar 2006 Patent has been challenged, PTO retracted one or two of the patents in Feb 2006 Judge (Spencer) in NTP v RIM refused to stay the case pending further USPTO findings Just a day after a judge in the NTP-RIM patent fight said that he would not wait for the US Patent Office to complete a review of NTP's patents, that same Patent Office announced a "non-final" ruling on one of the NTP patents, suggesting that the original patent might not be valid. -- techdirt.com NTP owned nothing but patents, but Thomas Campana -- co-founder -- did "invent" the technology. So NTP is not a classic "patent troll". Campana grew up in Marquette Park, btw. RIM engaged the mega-lawfirm of Jones,Day, which irritated Judge Spencer regularly. Bad idea. RIM put on a demo of some supposedly pre-Campana text-messaging software, BUT a major part of it was post-Campana's-patent. Another bad idea. Rim failed to prove the patent invalid in court. But the burden of proof was on them. With the USPTO, the burden of proof was on NTP. Central idea of NTP patent: if a wireless unit is out of range, messages are stored at Network Operations Center (NOC). Look at 6317592 Electronic mail system with RF communications to mobile processors 6198783 System for wireless serial transmission of encoded information Modulation techniques 6067451 Electronic mail system with RF communications to mobile processors 6272190 System for wireless transmission and receiving of information and method of operation thereof uspto.gov -> patents -> patft (uspto.gov/patft) Search by patent number: http://patft.uspto.gov/netahtml/PTO/srchnum.htm ========================================================== Alcatel-Lucent v Microsoft: won 1,500 million in infringement suit about mp3 decoders Feb 22, 2007 MS countersued for other patents *I* thought Fraunhofer IIS held mp3 patents Check out mp3licensing.com Aug 6, 2007: MS won new trial MS is now suing A-L for other patents. check out mp3licensing.com mp3 was published in 1991. Will all US patents expire in 2011? Original holder: Thompson Consumer Electronics & Fraunhofer Institute Still holds "core" mp3 patents. Patent claimants: Thompson Fraunhofer Sisvel / Audio MPEG Texas MP3 Technologies Alcatel-Lucent To date, (some) patent holders have announced that no action will be taken against open-source decoders. ========================================================== Patent reform: PTO trying to learn more prior art Watchdog groups doing same Trivial prior art is harder and harder to patent Still problems with patented protocols Patented storylines [!] ========================================================= ============================== Note that patents are for the use of an idea in a specific context: * prime factorization FOR THE PURPOSE OF ENCRYPTION * xor FOR THE PURPOSE OF ERASING AND REDRAWING THE MOUSE * digital scanning for the purpose of storing bank records Patent problems: submarine patents: you don't hear about them until too late! prior art: hard to find, hard to document, trivial ideas were never written down! This will go away. non-obviousness: difficult to contest many ideas go into one program! Technology evolves extremely rapidly Violates settled expectations (important part of law!) What's patented seems to be more a matter of chance than anything else. ignorance is no defense: "submarine" patents entire process is secret: you can be making good-faith effort to be noninfringing and get hit with a huge verdict. wilful: you had advance notice of infringing. Your belief that the patent was invalid may NOT be a defense, although it has been accepted as a defense in some cases. Damages automatically triple. ====================== Is software legitimately a special case? Or is it just that there are lots of small-time whiners in software who want to profit from the work of others without paying? * # of innovations used * problem with prior art * mathematical nature * prior art and non-obviousness * pace of computing inventiveness * rate of radical v incremental change * open source <===*************************** * patented standards * software patents have had the effect of postponing adoption until patent expires (cf James Gosling's first language) * 20 years is much too long EU Parliament recently voted 648-14 AGAINST the EPO (European Patent Office) directive. software issues: * software has way too many features, compared to ordinary inventions. Licensing 1000 features at 1%-of-revenue each is just not going to work. * prior art is very hard to find, as many patented ideas were not written down BECAUSE THEY WERE OBVIOUS. ================= Who are the stakeholders in software patents? Compare pharmaceuticals http://www.pbs.org/cringely/pulpit/2005/pulpit_20050818_000863.html "Do you feel helped by patent reform?" Three groups: * small inventors * large corporations * patent-holding companies (eg trolls) how large corporations manage: patent banks legal departments cross-licensing small inventors: market your invention yourself?? sell to a holding company These are tricky places. They produce nothing, they interfere with progress, but they *do* produce a market for new patents. Open source voip mp3 to date, *some* patent holders have announced that no action will be taken against open-source *de*coders. =============================== Role of "patent trolls", or patent licensing firms Note that the established-company-versus-established-company defense of a "patent bank" is useless here. =============================== Patents and standards-setting Company A participates in creation of a standard; they suggest solution S for a particular issue. After the standard is widely adopted, company A announces that they have patented S, and that they will license it for a significant fee. N-data patent on ethernet speed autonegotiation: http://arstechnica.com/news.ars/post/20080123-ftc-defends-ethernet-forces-patent-troll-back-under-bridge.html ===== MS has tried to patent FAT disk format =============================== natural-order recalculation in spreadsheets: Cell A depends on B if A needs B's value in its formula Rule: Before calculating A, calculate all cells A depends on. Duh. The algorithm is called "topological sort"; published in the CS literature in 1963. Rene K. Pardo and Remy Landau filed in 1971: U.S. Patent 4,398,249 Important case in allowing software patents (initially denied as an "algorithm") Spreadsheets were a brilliant idea (Dan Bricklin, VisiCalc?) but not order of recalculation. =========================== Business-method patents: Amazon one-click patent 5960411 ======= DataTreasury From their website: The Corporation was founded in 1998 and was granted its first two Network architectural patents (5,910,988 and 6,032,137) in 1999 and 2000, respectively. The patents detail the important and revolutionary aspects of DataTreasury’s systems for remote image capture, document imaging, centralized processing and electronic storage. Our innovations were particularly noted for enhanced security, fault tolerance and high reliability. These key elements form the underpinnings of DataTreasury’s technology. From politico.com/news/stories/0308/9202.html The company had benefited from a controversial 1998 court ruling that broadened the definition of a patent to include business processes. Patent reform act singles out this patent for congressional revocation ============================== Eolas v Microsoft: About a way for running "applets" in a browser window. Is this really an "invention"? Microsoft v Eolas (+ Univ of California, as part of UCSF) MS lost; ordered to pay 521 million Patent covers "a system allowing a user of a browser program ... to access and execute an embedded program object," or small computer programs, often referred to as "applets" or "plug-ins." "Viola" prior art: may or may not be Eolas started by Michael Doyle, faculty member of UCSF[?]. Berkeley has an interest in the patent. About a way for running "applets" in a browser window. Is this really an "invention"? Patent: 5,838,906 2007: MS has claim *they* invented it; this loses in Sept, but Eolas & MS settle in August ========================================================== NTP v RIM (Research In Motion): maker of Blackberry Settled for 612 million in Mar 2006 Patent has been challenged, PTO retracted one or two of the patents in Feb 2006 Judge (Spencer) in NTP v RIM refused to stay the case pending further USPTO findings Just a day after a judge in the NTP-RIM patent fight said that he would not wait for the US Patent Office to complete a review of NTP's patents, that same Patent Office announced a "non-final" ruling on one of the NTP patents, suggesting that the original patent might not be valid. -- techdirt.com NTP owned nothing but patents, but Thomas Campana -- co-founder -- did "invent" the technology. So NTP is not a classic "patent troll". Campana grew up in Marquette Park, btw. RIM engaged the mega-lawfirm of Jones,Day, which irritated Judge Spencer regularly. Bad idea. RIM put on a demo of some supposedly pre-Campana text-messaging software, BUT a major part of it was post-Campana's-patent. Another bad idea. Rim failed to prove the patent invalid in court. But the burden of proof was on them. With the USPTO, the burden of proof was on NTP. Central idea of NTP patent: if a wireless unit is out of range, messages are stored at Network Operations Center (NOC). Look at 6317592 Electronic mail system with RF communications to mobile processors 6198783 System for wireless serial transmission of encoded information Modulation techniques 6067451 Electronic mail system with RF communications to mobile processors 6272190 System for wireless transmission and receiving of information and method of operation thereof uspto.gov -> patents -> patft (uspto.gov/patft) Search by patent number: http://patft.uspto.gov/netahtml/PTO/srchnum.htm ========================================================== =========================== Stallman issues * impossible to search patent database * license costs fail to take # of innovations into account * deep problems with prior art: often too trivial Others: * huge social costs to uphold weak patents Barriers to entry Patent Trolls: companies that have no assets but patent claims, and don't attempt to produce anything but simply collect. Is this bad? ========================================================== Patent reform: PTO trying to learn more prior art Watchdog groups doing same Trivial prior art is harder and harder to patent Still problems with patented protocols Patented storylines [!] ========================================================= =========================== Patent and open source Does the open-source community deserve: * an applet-aware browser? * an mp3 player? * a gif viewer? * other ideas that are patented? Does MS intend to destroy or hobble or marginalize linux through patents? ========================================================= Patent Reform Act of 2007: H.R. 1908 and S. 1145 did not pass (yet) * Changes in U.S. patent law o 1.1 Switch from first to invent to first to file o 1.2 Expand prior user rights, to compensate o 1.3 Publish patent applications o 1.3.5 Allow corporate filers (ie inventor's employer) o 1.4 Allow pre-issuance protests by third parties o 1.5 Expand use of post-issuance reexamination and opposition proceedings o 1.6 Eliminate the "best mode" requirement (obscure) o 1.7 Modify the patent law doctrine of willful infringement "willful" is a serious problem. o 1.8 Modify the patent law doctrine of inequitable conduct o 1.9 Allow patent applications to be submitted by an assignee o 1.10 Limit access to injunctions o Damages: must proportion to incremental improvement over prior art o Bars "tax planning" patents [!] o Bars DataTreasury from bank extortion Discuss: first-to-file: who benefits? how are small inventors affected? How are prior-art rules affected? publish applications. ======================================================================== KSR v Teleflex, April 30, 2007 Some good patent news: Teleflex had a patent on a pedal coupled to an electronic throttle control (basically cruise control). The question was whether that was "obvious" The proper question to have asked was whether a pedal designer of ordinary skill, facing the wide range of needs created by developments in the field of endeavor, would have seen a benefit to upgrading [a prior art patent] with a sensor *not* thought of it by themselves, but saw the *benefit* Teaching-suggestion-motivation test: too narrow ========================================================================