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| Authored by: Anonymous on Tuesday, February 26 2013 @ 02:19 AM EST |
To see the main man fight back. Sure, he could have done
it differently, but would it have been as effective? The
fight is on.
[ Reply to This | # ]
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| Authored by: achurch on Tuesday, February 26 2013 @ 02:29 AM EST |
Please summarize the correction in the title of your post, e.g.: Misteak
--> Mistake [ Reply to This | # ]
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| Authored by: achurch on Tuesday, February 26 2013 @ 02:35 AM EST |
This thread is monitored by flying anteaters who will attack anyone who posts
on topic. Remember to make links clickable (set post mode to HTML and see the
red text at the bottom of the posting form). [ Reply to This | # ]
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- Off-Topic thread - One day your humor may tapir off. [n/t] - Authored by: Anonymous on Tuesday, February 26 2013 @ 06:53 AM EST
- Off-Topic thread - Authored by: cricketjeff on Tuesday, February 26 2013 @ 07:23 AM EST
- Dilbert on patent infringment - Authored by: JamesK on Tuesday, February 26 2013 @ 07:59 AM EST
- Piano: Song from Pi - YouTube - Authored by: Anonymous on Tuesday, February 26 2013 @ 08:18 AM EST
- New Help Desk Comic - Authored by: Anonymous on Tuesday, February 26 2013 @ 08:19 AM EST
- Why Europe is falling behind America on broadband - Authored by: JamesK on Tuesday, February 26 2013 @ 08:27 AM EST
- Microsoft menaced by open source - Authored by: TiddlyPom on Tuesday, February 26 2013 @ 09:05 AM EST
- JPMorgan Hid Reports of Defective Loans Before Sales - Authored by: Anonymous on Tuesday, February 26 2013 @ 09:14 AM EST
- Torvalds strongly objects to Windows 8 secure boot keys in the Linux kernel - Authored by: Anonymous on Tuesday, February 26 2013 @ 02:03 PM EST
- Supreme Court Thwarts Challenge to Warrantless Surveillance - Authored by: Gringo_ on Tuesday, February 26 2013 @ 02:24 PM EST
- Mobile World Congress and JG Ballard? - Authored by: Anonymous on Tuesday, February 26 2013 @ 03:36 PM EST
- You don’t need a peg leg or an eye patch to be a pirate - Authored by: Anonymous on Tuesday, February 26 2013 @ 06:12 PM EST
- Six-Strikes System Starts In U.S. - Authored by: Anonymous on Tuesday, February 26 2013 @ 09:13 PM EST
- All I need Java for is .... - Authored by: Anonymous on Wednesday, February 27 2013 @ 12:04 AM EST
- New Help Desk Comic - Authored by: Anonymous on Wednesday, February 27 2013 @ 08:22 AM EST
- How a Pittsburgh artist beat the most bogus trademark in drinking game history - Authored by: Anonymous on Wednesday, February 27 2013 @ 08:27 AM EST
- New XKCD - ISO 8601 - Authored by: Anonymous on Wednesday, February 27 2013 @ 08:48 AM EST
- Oxymoron - Authored by: Anonymous on Wednesday, February 27 2013 @ 01:53 PM EST
- Australia - Activists Lose Free Speach Appeal: High Court Divided 50 / 50 - Authored by: Anonymous on Wednesday, February 27 2013 @ 09:27 AM EST
- Preview: eComStation 2.2 Beta, the legacy of OS/2 lives on - Authored by: JamesK on Wednesday, February 27 2013 @ 11:57 AM EST
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| Authored by: achurch on Tuesday, February 26 2013 @ 02:37 AM EST |
For discussion of the News Picks on the right side of Groklaw's home page.
Use the title of the News Pick as the title of your post, so readers can find
the article even after it scrolls off the home page. [ Reply to This | # ]
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| Authored by: achurch on Tuesday, February 26 2013 @ 02:39 AM EST |
Post transcriptions of Comes documents here. See the tracking
page to get started. [ Reply to This | # ]
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| Authored by: hardmath on Tuesday, February 26 2013 @ 02:57 AM EST |
... but evidently patents want to be litigated.
Squash 'em here, they'll just pop up over there.
---
Recursion is the opprobrium of the mathists. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 26 2013 @ 03:05 AM EST |
It is hard to accept this presentation. Patents are NOT property, they are a
regulatory scheme, and as such can be varied to optimize the public benefit. The
Federal Circuit judges think that patents ARE property and that has caused a lot
of problems with the patent system. Seen as a regulatory system a patent is not
yours in the same way a house is; e.g. it has a limited term. Arguing from
inappropriate analogies gives misleading results.
SEPs are supposed to be treated differently than regular patents because
standards setting bodies relied on FRAND promises when setting the standards.
Those FRAND promises make those patents not equivalent to patents in respect
of which no promises were made. How to deal with FRAND patents is hard,
because one wants no hold-ups from broken promises, but equally one wants
the patent holder to have a stick to bring recalcitrant patent users to terms.
This
is a quandry that requires filtering through thought and reason, not through the
prism of my-Google-right-or-wrong.
In my view the simplest way to deal with this is to enforce the non-
discriminatory promise so companies like Google and Samsung can't
discriminate against companies like Apple in the FRAND rates they charge. Apple
should not be discriminated against, irrespective of the fact that Google and
Samsung would like to use Apple's non-FRAND patents at FRAND rates, or
alternatively charge Apple non-FRAND rates for FRAND patents. Apple made no
promises but Google/Motorola and Samsung did, and they ought to respect what
they promised.[ Reply to This | # ]
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| Authored by: Ian Al on Tuesday, February 26 2013 @ 03:50 AM EST |
I think this proposal is heading for disaster. The global standards authorities
ask for FRAND or no-royalty patent declarations.
MPEG LA claim that their patent pool (not included in standard authority
declarations) are standards essential. They extort what the market will bear.
Are MPEG LA to be permitted to get injunctions awarded whereas the companies
that actually made the technology work are going to be barred?
This would end in the distruction of world standards in the US.
---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid![ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 26 2013 @ 04:07 AM EST |
Sadly its fact that it could. Apple for example uses FRAND patents and doesn't
pay for this. If the company that owns the patents can't get an Injunction
against the company using it. They can continue to use the patent cause they
know their product will remain on the shelf while all court case is run through
which could take years and years while they infridge on the patent til next few
gen phones come out and they made a ton of money.[ Reply to This | # ]
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| Authored by: macliam on Tuesday, February 26 2013 @ 04:18 AM EST |
Usual disclaimer: IANAL etc.
And the ITC may operate under principles
other than the law that governs the Patent Office.
35 USC, section 283
(Injunction)
The several courts having jurisdiction of
cases under this title may grant injunctions in accordance with the principles
of equity to prevent the violation of any right secured by patent, on such terms
as the court deems reasonable.
The key point (as I understand
it) is that an injunction is an equitable remedy. And the US Supreme Court made
it clear, in eBay v.
MercExchange, that the principles of equity are the same for patent law
as for all other areas of law. (Earlier SCOTUS judgements had determined that
the standard principles of equity apply also in copyright law.)
In
consequence of this, the "traditional four-factor test" must be
applied before granting injunctive relief for patent infringement. Hence the
requirement of demonstrating "causal nexus" in the Apple v.
Samsung cases (Apple I and Apple II at the CAFC). As I
understand it, an equitable remedy can only be considered if there is no remedy
available at common law. With regard to patents, this requires a showing that
damages and license fees cannot compensate for the harm that results from
continued patent infringement. The injunction ensures that the patent owner can
maitain an exclusive monopoly, or can pick and choose amongst licensees. But a
FRAND commitment represents an undertaking to license the patent, and thereby
demonstrates that monetary damages for past infringement and future licensing
revenues constitute remedies available at common law that are sufficient to
remedy any harm caused to the patent. Thus that patent owner has a remedy at
common law, and further equitable relief by way of injunction would fail the
"four factor test". [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 26 2013 @ 05:18 AM EST |
Having the ability of getting an injunction from either Federal Court or the ITC
in the US is a reward from the value of the patent, when one patent may be
1/25,000 of the patented value (and ignoring all of the expired patented
technology adding value to the device). Unfortunately, if every one of the
25,000 patents were litigated, the courts would be clogged with patent suits.
Attempts of the courts to simplify cases by reducing the number of patents
considered in a suit make the problem worse, by overvaluing the patents left in
the suit.
If one treats patents as a regulation rather than property, several other
options become viable. They are not necessarily good, but possibly less bad than
the current system. The underlying purpose of patents is to reward inventors so
they continue to invent, and can recover the costs and reasonable profits of the
work spent supporting the work of inventing, including time spent on developing
unsuccessful technology. The current process treats the patent more like a
lottery ticket - a small investment with a potentially large return. A better
process would have a small investment yield a small but consistent return.
I would propose eliminating injunctions, except against those who refuse to
license patents. Even for pharmaceuticals, where one patent represents a huge
investment, licensing fees should be an adequate reward, but the licensing fees
would be related to overall industry and company specific efforts and expenses.
Post-invention marketing fees may need to be included in the license fee, as
everyone could make Lipitor when it came out, no one would want to spend money
marketing it, and the original patent holder has a reason to market the drug to
increase license fees, so reasonable marketing costs should be reimbursable.
Research failure rates are high in pharmaceuticals, so license fees on successes
should recognize that.
Getting back to the technology business, the overall investment is large, but so
is the number of patents awarded. This likely limits the cost of developing of
any patent to a small amount, with recovery including both the income of the
original inventor from the patent, and licensees to a corresponding multiple of
that small amount. Fraunhofer should get its fair share for its expenses
developing MPEG, but not an infinite revenue stream. If the model allowed
recovering four times the expense of developing the patent at the expected sales
rate, if the product was more successful, the patent could expire once eight
times the expense was recovered.
The downside of this proposal is that it would set up a different regulatory
mess, with inventors trying to maximize the expenses associated with successful
patents and minimizing the expenses associated with less important patents.
Individual inventors who don't draw a salary would need to have some imputed
salary for their expenses. Lawyers would fight over the entire system, just as
they do for every other regulated system. It would also tend to reward less
competent companies who spend much revenue on unsuccessful innovation, with
their few successful innovations demanding a high royalty rate.[ Reply to This | # ]
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| Authored by: cricketjeff on Tuesday, February 26 2013 @ 07:15 AM EST |
The standards bodies all adopt the following rule as a standard,
In utilising this standard you accept the invaluable contributions of those
whose work was essential to the field. As a consequence you undertake to make
any of your patents and other IP as may become a de facto standard, or the
accepted way to achieve a customers reasonable goals available at the same rates
as standards essential IP has been made available to you. Failure to comply will
render your product non-standards compliant.
Apple and Microsoft can have no objection, they are not required to build
standards compliant phones, they could establish their own networks or play
ball. No injunctions needed.
---
There is nothing in life that doesn't look better after a good cup of tea.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 26 2013 @ 08:07 AM EST |
Of course the government can take property (eminent domain and
all) and even tell you (with the backing of the courts),
what's reasonable compensation.
Here's a hint....it's seldom as much as YOU think your
property is worth.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 26 2013 @ 09:52 AM EST |
M$ has many strings to pull on when it wants something. I'm
sure that A$ has aquired a few just as all the other rich boys
have. This is just another obvious symtom of corporate money
at work. No benefit for the generally un-wealthy and getting
poorer citizens here.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 26 2013 @ 10:40 AM EST |
Patent "rights" are absolutely NOT comparable to tangible property
rights. Patent "rights" did not even EXIST in anything like their
current form just a few hundred years ago. "Taking" patent
"rights" is nothing like standing inside someone's house with a gun
refusing them entry.
If you do not understand the difference, you should keep your mouth shut!
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 26 2013 @ 10:46 AM EST |
Given the Groklaw stance, any software patent should not
even be allowed.
Definitely many software patents are being
used in these wars. So any
change must also remove at
least the pure software patents, if not all claims
that rely
on software. Otherwise any company with any real
essential
patent would not be able to defend against those
software patents. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 26 2013 @ 11:42 AM EST |
Banning injuctions of FRAND patents make a lot of sense, since it is always only
a question of money.
What also makes a lot of sense is streamlining judicial decisions about them.
Since the licensing value should not be open for discussion, the only open
question is if there was infringiment or not.
Put both of those into the jusrisprudence, and you have a fair and sane
standard. Just one of them (any one), and you'll destroy a couple of markets and
several lifes with the injustice.[ Reply to This | # ]
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| Authored by: macliam on Tuesday, February 26 2013 @ 01:35 PM EST |
Wolf Industries owns two patents. Wolf Industries has a representative on the
committee designing the Platinum Book Standard. The representative persuades
the committee to include in the standard some feature encumbered by Wolf Patent
A. Wolf Industries offers to license Patent A on FRAND terms, but reserves the
right to enforce the patent vigorously against any business that sues Wolf
Industries for patent infringement.
Shorn Lamb Inc. needs to make use of the Platinum Book Standard in its core
business, and therefore must license Patent A from Wolf Industries. Now Wolf
Industries has a software patent, Wolf Patent B, drafted in vague terms, which
it can assert against Shorn Lamb. Wolf Industries offers to license this
'valuable' technology to Shorn Lamb on 'reasonable' terms that many fair-minded
observers would regard as extortionate. Shorn Lamb does have one reasonably
substantive patent, Lamb Patent C, in its arsenal that reads upon some Wolf
Technologies product.
Should Shorn Lamb attempt to defend itself by asserting Patent C against Wolf
Technologies? This would risk having its license to FRAND Patent A withdrawn.
Moreover Wolf Technologies would seek an injunction that would cripple Shorn
Lamb's business. Would Shorn Lamb Inc. not be better advised to license Wolf
Patent B in addition to Patent A on terms dictated by Wolf Technologies?[ Reply to This | # ]
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| Authored by: albert on Tuesday, February 26 2013 @ 01:36 PM EST |
In this little walled garden, you may cavort with those of your kind.
LOL[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 26 2013 @ 01:49 PM EST |
The recent spike in smartphone patent litigation has little to do
with the SEPs and the ambiguity
surrounding FRAND commitments. Instead, the
immediate cause of the current outbreak in litigation is the aggressive
assertion of patents by relatively new mobile market entrants.
The root
causes of the smartphone patent wars are the increasing flood of technology
patents – particularly low quality
software and design patents, the increased
functionality of mobile devices and the changing wireless device market
structure (specifically the asymmetry in profit margins and market shares).
[I.A.3 above]
I think they got that part right. All the problems
arise from what to do about this. One possibility that seems favoured
here at
GL is to shorten the term of computer patents. If USPTO (via Congress) insist on
issuing software patents at least
they should recognise that the state of flux
in the industry generally allows R&D to be recovered and a handsome
profit
realised within five years, then the product is obsolete. Alas such a remedy
will never emerge from the
institutional inertia of both USPTO and Congress.[ Reply to This | # ]
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| Authored by: ukjaybrat on Tuesday, February 26 2013 @ 02:12 PM EST |
So we can all agree that Standards Essential Patents are a
necessity in technology. Without them, each company would be
implementing the same technologies in their own way,
effectively re-inventing the wheel every time. And none of
these technologies would play ball with each other.
So, the standards setting organizations made it possible to
still get a patent on your ideas for your hard work, but
those patents would be cheaper to purchase licenses for.
This idea was under the assumption that all people
purchasing licenses were contributing to the standards. So
it was fair... keyword: WAS
However, now we have companies who would like to use these
standard patents at the cheaper price, they are not
contributing to standards. If anything, Apple and Microsoft
are two of the biggest proprietary tech producers in the
industry.
What Standards Setting Committees SHOULD have done, was set
some sort of 'sliding scale' based on the amount of effort
you have offered to setting standards. Companies that have
contributed a lot of technology towards standards would
generally be able to purchase SEP licenses a lot cheaper
than companies that have produced ZERO standards.
It's probably a little late for an idea like this, but who
knows
---
IANAL[ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Tuesday, February 26 2013 @ 02:53 PM EST |
Considering the history of RIM and patent injunctions. I find that RIM
supporting injunctions in certain circumstances extremely powerful.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
[ Reply to This | # ]
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| Authored by: BitOBear on Tuesday, February 26 2013 @ 07:37 PM EST |
Putting any patent into a standard should be a grant of license to use the
entirety of that patent as part of that standard.
Nothing else is "non discriminatory".
full stop.[ Reply to This | # ]
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| Authored by: SilverWave on Wednesday, February 27 2013 @ 01:50 AM EST |
PJ, you may want to respond...
The CCIA and RIM tell the FTC
banning
injunctions for FRAND patents can make smartphone wars worse
>> Groklaw:
The FTC is now suggesting that companies that own
standards-
essential patents and offer them under FRAND terms, like
Motorola,
should not be allowed to seek injunctions
regarding those kinds of patents
except in the most extreme
of circumstances. But for decades, they had those
property
rights, the right to seek injunctive relief. How can a
government
agency just show up and take those traditional
rights away by fiat, without
reasonable compensation? That's
not America, to me. I don't even like software
patents, but
as long as the patent system exists, you want it to be fair.
And
this just feels wrong.
guardiantech:
This
seems to be a case of Groklaw deciding which side it
likes, and tailoring its
thinking to go along with it.
The
reason to oppose injunctions on
standards-essential patents
(SEPs) - which Google (via Motorola) and Samsung
own lots of
- is that it would allow the owners of those SEPs to shut
rivals
who need to meet standards out of the marketplace,
simply by withdrawing the
rival's permission to use those
patents. Being part of a standard requires
licensing to all
comers. (The idea that stopping injunctions over SEPs would
make things worse is obvious nonsense. Nor is the FTC saying
that SEP
injunctions aren't ever allowed. )
patents smartphones
---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 27 2013 @ 09:44 PM EST |
The arguments presented would make sense if the SEP holder was left
with no remedy in law at all, but this is not the case. By agreeing to FRAND
terms the SEP holder commits to license it's patent to everyone. The only
open question is the price and terms of the license. If an infringer is not
willing to pay the required price, the court is still available to the SEP
holder
to get redress in the form of both compensation and punitive damages.
Blocking products from making it onto the market is not in the interest of the
public. As it stands FRAND commitments give SSOs a warm fuzzy feeling
but unlike an RF commitment it's almost meaningless. Taking injunctive
relief of the table for FRAND patents makes a FRAND commitment a little
bit more meaningful.
There was a good reason for distrusting MIcrosoft when it offered its ill-
fated office document standard on FRAND basis. Other companies may
have a better historical record but their FRAND commitments deserve a
similar distrust as long as such commitment does not have any significant
impact on their legal options to deny licensing and harass competitors.[ Reply to This | # ]
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