Week 10, April 3

Paper 3
(apologies for Paper 2)

Read: Stallman, Garfinkel, Chapter 4: E-commerce

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Dozier Law article on bloggers and problems with immunity (obsolete!)

sitforthecure.com

http://www.cybertriallawyer.com/technologylawyer:
"That's the irony of the law that was passed" ...[ Section 230 of CDA]
Is this obsolete, or what?

Copyright video: are video snippets ever "fair use"?

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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
<b>many</b> 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.
	 	
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Role of "patent trolls", or patent licensing firms

Note that the established-company-versus-established-company
defense of a "patent bank" is useless here.

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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

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MS has tried to patent FAT disk format

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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

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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

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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
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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


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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.
	  		
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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


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