Summations Only

Before I address the above, and in the interest of full disclosure, I am an intellectual property lawyer. I'm sure that in some eyes that means I am "the man". But nothing could be farther from the truth. I am not currently enaged in or seeking to engage in protecting ideas for corporations. FWIW I am among the large number of people who think SOPA and PIPA are bad policy.Whether or not we as a society believe that it is worthwhile to protect intellectual property is one question. But the above quoted argument is completely specious in my opinion.Intellectual property is given its name because the laws that protect developed ideas (such as trademarks, patents, copyrights and trade secrets) provide a set of rights that are analogous to those associated with real property (land). Like real property, the rights associated with intellectual property can be owned, inherited, transfered, registered with the government, etc. The sticks in the bundle of rights associated with real property can be subdivided and separately transfered, as can the rights associated with patents, copyrights, and trademarks.The rights are not identical to those associated with property and the implications to society are not identical. When we find differences, that simply means that the analogy has broken down. But all analogies break down at some point.Other reasons why, in my opinion, it is a particularly bad argument to suggest that time-limited nature of the right to means intellectual property isn't really property:1) Copyright last a real long time, well beyond the lifetime of the author, and the Supreme Court to date has found that the IP Clause of the Constitution does not prohibit Congress from periodically extending the lifetime of copyright making it effectively indefinite. Essentially nothing has entered the public domain due to the expiration of copyright since 1923. In fact a few things that have fallen into the public domain have been clawed back into corporate hands.2) Some real property rights can be time limited at the discretion of the transferee, or by exercise of law.3) Trademarks and trade secret protection are not time limited.4) The duration of patents and copyright is fixed by statute, with the Constitution placing no limits other than not infinite on their duration. Nothing prevents other countries from having indefinite duration copyrights other than the possiblility of revolution.5) Most of the people in this thread would raise hell if patents and copyright were made more "property like" by being of indefinite duration. Actually, the constitution merely says that we grant the right in order to promote the arts and sciences. There is no explicit indication whatsoever of what that level of encouragement is meant to be. But surely it as at least enough to recoup investment.We could suggest that historically the length of copyright was much longer. But we might also note that historically, patents were granted as special favors for non-novel ideas.While there is a legitimate argument about whether patents and copyrights are beneficial to society. Patents have both a progress and an anti-progress effect, with some of the analysis being quite complex. For example patents do cause people to invent new technologies to work around a patent. But the arguments I see in this thread, and I'm certainly not suggesting that crashfrog's are the worst in this respect, are primarily the same kinds of arguments that Louie uses when he uses his five-finger discount at Walmart.Maybe artists would continue to generate art without obscene profits, but I highly doubt that anyone would be making 100 million dollar movies like Lethal Weapon 18 if there were no financial incentive to do so. Perhaps some view that as a good thing.Also because intellectual "property" is an analogy, arguments can be made that IP need not be treated exactly as real property. For example, a court will almost always allow a land owner to kick squatters off of his property, but a court might not force a patent infringer to cease infringing and might instead require that patent holder to license the patented invention. When a discussion talks about intellectual property as one thing, quite often the discussion is going to be quite muddled. Generally speaking intellectual property encompasses a number of areas of law including copyright, patents, trade secrets, trademarks. Some people lump in rights to publicity in with those things. But the laws regarding the various types of intellectual property are completely different, and the resulting problems are likewise diverse.Okay, enough ranting...

I agree with your entire post but I think this part is misleading. The gov't doesn't need SOPA/PIPA to go after the actual violators Apparently the Justice Department is very much interested in throwing the operators of Megaupload, just busted this week, into the slammer and then into the poor house. I highly doubt that the operators are going to be putting up a new site anyti,e soon.I'll also note that the music industry did embark on a huge campaign to go after individual uploaders and that the campaign was a complete PR disaster. The bust of Megaupload could have been a similar disaster except that the operators include some slimy ex-cons.

Duplicate removedEdited by NoNukes, : No reason given.

What protection do business plans get. Other than protection against obtaining them illegally, business plans have no protection at all. You might be prohibited from copying the actual plans, but there is no legal protection that would prevent you from operating a business according to the plan.

Your understanding is popular, but wrong. In the US there are such things as business method patents, but such patents must have a technological effect. Amazon's one-click patent actually covered a technological implementation that allowed purchasing with one click.

No. That's only one way science is promoted. Another way is to promote science is to encourage people to work around patents even if the resulting ideas are not a patentable idea.Further, my point was intended to counter the impression that the monopoly power could not be constitutionally justified beyond the point were investments were recouped. A person who had never applied to the patent office might well believe that the PTO behaves in such a way. I assure you that the idea of the PTO takes such an approach is malarkey.Further, patents so broad that they block all possible solutions to a problem are invalid under SC precedent.None of that is to say that the PTO doesn't issue too many patents, that patents don't sometimes stifle innovation, and that patents might even be counter to the public good in any number of situations. But I haven't seen a credible argument that such is often or usually the case. I didn't attempt to counter that argument.But it's also the case that my squatting in your backyard with my tent doesn't make you homeless. Yet we don't find it unjust to allow you to evict squatters.And what's so vital about your access to Lethal Weapon 18 at zero cost anyway? We don't but others do exactly that. Perhaps you've heard of recent attempts by the scientific publishing sector and members of Congress to overturn laws that make NIH's work publicly available when the Govenment pays for it. True, but that also isn't the law. I lend out books and movies to friends and family all the time. It isn't against the law for me to do so.In your view, who should pay, and who should be exempt?

Names are not protected by copyright. And trademark law cannot be employed to prevent you from naming your child. Your fears are groundless. I cannot address this question without knowing the details including the exact names at issue. There are lots of stores out there with "Mart" in their name, so the issues cannot be as clear cut as you describe here. This would be utterly unworkable in many situations. Do you want to pay everytime the advanced contrast circuit kicks on in your television set. There are dozens of arguments for the proposition that SOPA and PIPA are bad law even without taking the position that all IP is inherently evil. In my opinion SOPA and PIPA are largely about protecting legitimate interests with laws that intrude on the rights of the general public.

The way to understand a patent is to read the claims, which are the numbered sentences at the end of the patent. The title and abstract are simply guides for locating patents. But even the abstract described an information flow between a server and a system to generate a result.And unless every single action described in a claim is performed by a single actor as described then that claim is not infringed. It does no good to pick out one item such as HTML document.And what if the transaction used something other than an HTML document or if two clicks were used.Quote me the claims of the running a lottery patent,.

Not copyright law. That might be silly. I'm talking 'bout patent law.I note that your argument is simply based on your own incredulity. You've given no reason for the founding fathers not to have thought of this particular spur to innovation. The fact is that the workaround theory does work. Attorneys are employed to help corporations find workarounds that allow avoiding royalties.There are several mechanisms by which having a patent systems spurs innovation. The obvious one is the incentive from the monopoly. But there is also the fact that in order to get the patent, the inventor must fully disclose his idea rather than keep it secret. Even before the invention becomes public domain, others can use the published patent document to understand and improve on the invention.To answer your question, these things are generally not taught in law school because patent lawyers are a very small minority of all attorneys. None the less, these principles are found in the case law, and patent lawyers, who also happen to be engineers and scientists, encounter the principles at work in industry. That certainly been my experience. I'm not going to defend every bad patent that the PTO issues. But I have worked as a patent examiner and as a patent attorney. During the one year that I worked in the PTO, I never allowed a single patent. Most of my peers in the art group I was in could relate a similar experience. Really. Because I disagree with an article written by someone else, I have no expertise? Please. Let me provide a different perspective.Patent examiners can force applicants through many rounds of examination during which the scope of a patent application becomes narrower and narrower. In the end, that narrowed patent claims may issue despite not being perfectly examined. After all, patent examiners are being asked to essentially prove a negative. If their search turns up a prior invention, the examiner can positively reject claims. But if nothing turns up in the search, the examiner can never provide an absolute assurance that there is no art to be found. It is the nature of the beast that examination is imperfect.And it would be woefully inefficient to examine patents exhaustively in the PTO because the overwhelming majority of patents have no commercial value. Once a patent is identified as important, there are a number of techniques for invalidating the patent including re-examination in which the patent is returned to the patent office for a second look using art found by any interested party.So the nonsense that PTO policy is to leave the work for the courts is both exaggeration, over simplification, and in the end just plain wrong. Further, Congress just this year expanded the possiblities for busting patents without going to court to do so.Returning to the exercising the cat patent (and I can provide some even more humorous examples) I don't defend the issuance of the patent, let me suggest that the patent is harmless and has always been so. The patent holder never made a nickle enforcing his patent.On the other hand, there have been several attempts to invalidate Amazon's one-click patent, and not a single attempts has achieved any meaningful change to the patent. Some of the things you question about might be legal under the law, while others of the things above might not. But I don't see why your right to own a free copy of a movie is any greater than the copyright holder's right to be paid for a copy.Who has the right to tell you not to pinch up a loaf of bread, a pack of balogna and a beer from the supermarket when your family is hungry? Why shouldn't I be able to nibble grapes in the produce department just because I haven't the money to purchase them. Don't believe everything the copyright holder tells you. MPAA will also tell you that you cannot make those time shifting copies of TV shows that the Supreme Court said in Sony v. Betamax were perfectly legal. The RIAA will deny that you have the right to rip music for use in your MP3 player despite court decisons (Diamond v. Rio) that say that ripping is perfectly legal.The truth about what you are allowed to do with a copy of a movie can be found in 17 USC 109 (first sale), and some additional freedoms can be found in 17 USC 107 (fair use). I believe there are some additional provisions for classroom use, but I don't routinely encounter those.The short answer is that you have the right to sell, lease, and lend DVDs and any legally made copies of movies that you own. The rules for music are the same, and there are additional rights to make digital copies of music found in the statutes. On the other hand, the statutes do not allow leasing software without the copyright holders permission. Which provision of the DMCA is violated by loaning out a book or a DVD. (Hint: None). I suspect that you are referring to copyright law more generally. Again, copyright law does not prevent you from reading a book without permission or viewing a movie without permission. I read books in Barnes and Nobles all the time. If book publishers and authors don't like that, their recourse is to make things more difficult for B&N, but they cannot use copyright law to do the dirty work.Edited by NoNukes, : No reason given.Edited by NoNukes, : No reason given.Edited by NoNukes, : No reason given.

Let's look at this stat just a bit.In a legal dispute, rational parties evaluate their positions before litigating. Most disputes settle, and we should expect that cases where the patents are indisputably valid or invalid don't get litigated.In fact, only the close cases get litigated to the point where a patent is upheld or found invalid. A forty percent invalidation rate sounds just about right.

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More fundamentally, patent examiners are rewarded for processing applications — and the easiest way to clear a file is to approve a patent

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This is a falsehood of creationist level scope. I will describe the examiner incentive system for examining patents.Examiners receive credits known as "counts" for carrying out examination functions, and each examiner must earn on average an assigned number of counts per 40 hours of examination. Under performing examiners are subject to being fired.So an examiner is paid for accomplishing any activity that produces a count, and fired for performing too few count producing activities,When a patent application lands on an examiner's desk the examiner initially expends considerable effort reading and learning to understand an application. No counts are earned from these activities. Accordingly, an examiner will want to wring as many counts from each application as possible; clearing the application from his desk means that the examiner must replace that application in is queue with a new application.The examiner then searches to see if the patent application describes a new and non-obvious advance over existing technology. The examiner could allow the patent application after the first search which will clear the patent from the examiner's desk and give a count. But such actions are very rare.1. Allowance are reviewed with considerable scrutiny.
2. The examiner must now read and understand a new application.Or the examiner could reject the claims in an non-final office action which also yields a count.The examiner would end the office action with rejections to the applicant. The applicant will most likely attempt to overcome the rejection. If the examiner maintains the rejection despite the applicants argument, the examiner makes his rejection final. There is no count for this, but if the applicant requests to continue prosecution, the examiner gets a count for request, which starts the process back to the beginning, and the examiner can earn a second count for a new non-final rejection. So by rejecting, three counts are wrung from the same application.It should be clear that it is in the examiner's interest to reject claims rather than to issue a patent. US examiners are not penalized for keeping an old application on their desks.The PTO has modified the count system since I left to give less than a full count for the second and third rounds of prosecution, but it should be pretty clear that examiners are indeed rewarded for rejecting claims. Edited by NoNukes, : No reason given.

I'm not sure what your point is. I can agree that Amazon did not set out to make patentable technology, but they did spend effort developing their solution.But in any event, not every patent spurs innovation. But I wouldn't try to defend the patent system on that basis.In fact, I'm not really defending the system at all. I'm just pointing out some problems with the description of the system as I see it being discussed here.

Nevertheless, you fear something that the law does not allow. Further, with regard to trademarks, you haven't described an extreme. Yes it is possible that companies in different industries might employ the same mark. There used to be Delta Airlines and Delta Faucets. Apple computers, and Apple recording company. Trademarks are not company names. Trademarks are names given to products. It may happen that a company and product have the same name or substantially the same name.I don't believe that is anyone's interest to prevent companies from having sole control of their trademarks. The purpose of a trademark is to identify goods and services in commerce for the benefit of both consumer and producer. If you spend zillions of dollars on promoting Coca Cola, why should Pepsi be able to appropriate that good will be applying Coca Cola to their product. And why do we want to confuse customers. How would this differ from a royalty on TVs containing the circuit? Edited by NoNukes, : No reason given.

Or perhaps my leaving the patent office has something to do with the fact that a patent attorney with one year of examining experience earns about twice as much as does a patent examiner with 1 year of experience.The reality is that brand new patent examiners are discouraged from issuing patents. There was absolutely nothing wrong with my performance at the PTO. Fortunately, the above is not related to any point I've attempted to make.I understand that all lawyers are evil and that I in particular am both evil and stupid, and unable to cut it as a patent clerk; at least in your view. But let me present a different view.When Google's engineers, possibly with the aid of a patent attorney, review Apples patent and invent yet another capacitive touch screen that does not infringe the patent, then the public benefits from having competing designs. Presumably Google's engineers can take the redesign route whenever doing so is cheaper than licensing the technology from Apple. Doing their job, which is to issue valid patents, when done perfectly requires proving, using a resource limited search, that no prior art exists to invalidate the patent. In other words, examiners are asked to prove a negative.Patent examiners are asked to prove that no prior art exists by conducting a search and producing that prior art. If they find prior art, they reject the claims. If they don't find the art, then they cannot reject the claims. Examiners don't get to make conclusory statements that an invention is too trivial and simple to receive a patent. They must provide the proof.And by the way the 16 hours is an average. Often, the examiner finds prior art that allows rejecting the patent claims in an hour or two. The remaining examination time can be used to examine another patent for which finding prior art is harder. Inexperienced examiners are given more time to search than are experienced examiners.I've also outlined why examiner's have an incentive to reject rather than to issue a patent. I don't recall seeing any meaningful rebuttal to my description of how things really work at the patent office.The central problem is that even a 1000 hour search cannot answer the question of whether some prior art will turn up that the examiner has yet to locate. During litigation, defendants often spend millions of dollars to find prior art. Nobody is going to fund the PTO on a level that will allow million dollar searches for each application. But that doesn't stop people like you from blaming the examiner and the PTO for not having conducted a million dollar search.I've also pointed out that defendant in a patent infringement case can pay a fee and have the PTO take a second look at a patent based on prior art that the defendant has found. During the review in the patent office, there is NO presumption that the patent is valid, contrary to the claims of that article you cited. Accordingly, the idea that the PTO leaves things for a court to sort out is foobar.Against the above, you offer no real rebuttal. Name calling and handwaving you do offer; but no rebuttal. You point to the One Click patent as clearly trival, but it turns out that despite all of the ranting and raving, nobody has been able to invalidate the patent either during reexamination at the patent office or in court, despite well funded attempts to do exactly that.You say that the patent is trivial but I have yet to see you attempt to analyze a single claim of the patent even after I informed you that the abstract does not define the meets and bounds of the patent protection.I understand that I cannot convince you. But I do think I have pointed out some fairly sizeable holes in your argument. Quite frankly, you are handwaving on a level that neither you nor I would ever tolerate from a creationist in a debate about evolution.I appreciate the continued tests on my skin toughness though. Keep up the good work.Edited by NoNukes, : No reason given.

Please cite some of that abounding evidence. I'd like to see if you have anything more than a few anecdotes.It is true that the RIAA and MPAA overstate the impact of piracy on their products, but you are claiming to be able to show that there is no impact. You cannot make good on that claim.

No you haven't presented any evidence. You have yet to do more than assert that the one-click patent is obvious. Obviousness is a legal conclusion requiring evidence and is based on comparing the invention to the prior art and determining whether the differences are obvious. See 35 USC 103(a). The examiner doesn't make handwaving assertions of the type you are making.If you think that the one-click patent is clearly obvious, then take your own shot at invalidating it. But first take a look at the wikipedia article on the subject that makes reference to the fact that better men than you have already tried and failed.Secondly, the 16 hour number is an average. If a search for prior art takes longer, than 16 hours, the examiner must search longer. An examiner recovers the difference by finding one or more easy to reject applications on the examiner's docket.There are lots of lay opinions about the one-click patent, but as near as I can tell you haven't even looked at a single claim. No, that's not what I meant.I said that attorneys (i.e. patent attorneys who also happen to be engineers and/or scientists) HELP find workarounds. We patent guys use the term "workarounds" to mean product designs that do not infringe the patent being "worked around". It does not mean legal strategies for avoiding law suits. Regular attorneys are not involved at all. And I didn't mean an army of attorneys, I meant the staff attorneys at Google help Google.Perhaps I should have said "design arounds". But in any event, I did not change arguments in mid stream. I hope that's clear now. Maybe Apple's solution was the most straightforward, while Googles is better/cheaper/faster/less polluting and as result the end products can compete over the differences.But Apple's patent was part of the reason why Google even bothered doing something difficult. In any event, regardless of whether you personally appreciate having two different types of touch screens, science has been advanced when we learn new ways of doing something. Yes, I have.Are you saying that I never explained how the PTO count system, which determines how examiners are paid, promoted, fired, and selected for financial awards favors rejecting rather than issuing a patent? Because I seem to see such a post. I don't see a response from you addressing it though.Perhaps you simply don't believe that I am accurately reporting how the system works or how examiner's respond to it?