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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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North Korean Missile Test Delayed by Windows 8 | 72 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
3.62 cubic meters
Authored by: Gringo_ on Thursday, April 11 2013 @ 11:14 AM EDT
http://en.wikipedia.org/wiki/Cord_(unit)

[ Reply to This | Parent | # ]

CISPA - Privacy protections booted from bill
Authored by: Anonymous on Thursday, April 11 2013 @ 11:23 AM EDT
"Committee overwhelmingly votes down privacy amendments that would have curbed National Security Agency's access to private sector data. Now the bill heads to the House floor for a vote."
Declan McCullagh, CNet

CISPA's Sponsor Can't Even Keep His Story Straight About NSA Having Access To Your Data
Mike Masnick, Techdirt

[ Reply to This | Parent | # ]

Why more pages for Apple?
Authored by: Anonymous on Thursday, April 11 2013 @ 11:35 AM EDT
Why more pages for Apple?

[ Reply to This | Parent | # ]

It's Obvious
Authored by: lnuss on Thursday, April 11 2013 @ 11:55 AM EDT
4) None of the above:

A woodchuck could chuck as much wood as a woodchuck could chuck, if a Woodchuck
could chuck wood. ;-)

---
Larry N.

[ Reply to This | Parent | # ]

Chucking wood
Authored by: JamesK on Thursday, April 11 2013 @ 12:35 PM EDT
{
How much wood could a Woodchuck chuck, if a Woodchuck could chuck wood?
}

He wouldn't chuck any. He'd outsource the job. ;-)


---
The following program contains immature subject matter.
Viewer discretion is advised.

[ Reply to This | Parent | # ]

WHHOOOT! - U.S. To Restart Plutonium Production for Deep Space Exploration
Authored by: SilverWave on Thursday, April 11 2013 @ 01:22 PM EDT
U.S. To Restart Plutonium Production for Deep Space Exploration :-)

---
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 | Parent | # ]

Coming soon to an Ubuntu release near you!
Authored by: Anonymous on Thursday, April 11 2013 @ 02:52 PM EDT
Predatory Penguin!!!

Ed L. (not logged in)

[ Reply to This | Parent | # ]

Lawyers in Hell
Authored by: Anonymous on Thursday, April 11 2013 @ 03:17 PM EDT

Some of you may know that I'm now selling short stories. Horror to be precise. If you'd asked me even ten years ago whether I'd ever write Horror, the answer would have been a resounding no.

The SCO Group taught me that Horror comes in odd packages.

One of my writing teachers is a lady named Janet Morris, who is a writer, editor, and publisher. One of her recent books, for which she wore all three hats is Lawyers in Hell, part of the Heroes in Hell shared world Bangsian Fantasy.

Normally I don't post about writing here, especially my own, but I'm not in this book, and since this particular post of PJ's is so much about Lawyers, well, this is almost On-Topic :)

Besides, it has been interesting seeing the change in attitude here towards Lawyers over the last ten years.

Wayne
http://madhatter.ca

[ Reply to This | Parent | # ]

Judge tosses lawsuit back to parties
Authored by: cassini2006 on Thursday, April 11 2013 @ 04:38 PM EDT

Apple and Motorola annoyed a judge.

On a more serious note, I don't think the court system is properly set up to handle cases where two multinationals have been awarded reams of patents, and for business reasons, intend to sue each other. For instance, in the Apple vs. Samsung trial, the number of points each party was suing the other on was so large, I don't see how the jury could possibly understand the issues, or even the jury form. This was particularly unfair to Samsung, because it can take a long time to show that something wasn't infringed, and each side was only allowed 25 hours of testimony. As it turned out, the jury foreman really didn't understand what was going on.

[ Reply to This | Parent | # ]

Apple Apologised
Authored by: Anonymous on Thursday, April 11 2013 @ 07:22 PM EDT
“some people may have viewed our lack of communication as arrogant.” [Tim Cook] added: “we sincerely apologise to our customers for any concern or confusion we may have caused.”
But the date of the quoted apology in this Economist story had me wondering if there was a connection with another marketing story

[ Reply to This | Parent | # ]

Revisiting the Oral Argument in Bilski v. Kappos
Authored by: macliam on Thursday, April 11 2013 @ 08:27 PM EDT

Last night I listened through the oral argument before the Supreme Court in Bilski v. Kappos. There is a nice website at www.oyez.org that has audio files of oral arguments at the Supreme Court. These seem to go back a long way: a few months ago, I was listening to the audio file for Gottschalk v. Benson back in 1972. The website has a case page for Bilski v. Kappos (2009), and the audio file for the oral argument is available there, and moreover the text scrolls past, identifying the lawyers and the Justices, in synchronization with the audio.

The transcript of the oral argument is available on Groklaw here. I think PJ summarized the essentials of the argument very well in her second paragraph:

For sure the questions from the court to Bilski's attorney, J. Michael Jakes, and to the attorney for the government, Deputy Solicitor General Malcolm L. Stewart, are interesting. I conclude that the justices are way ahead of them on just how crazy the current patent system has become. Thank heaven there were so many amicus briefs, because reasonable, logical arguments were few and far between from either attorney, in my view, in that they each seemed to argue very much for the status quo, or in the case of Bilski's lawyer for an even broader free-for-all in patentability.

Maybe I am overstating the impression I got from listening though the audio last night, but the metaphor that occurred to me was that of the Supreme Court Justices as a pride of lions hunting down the unstated assumptions behind the positions of the parties as expressed in their briefs.

The lawyer for Bilski, Mr. Jakes, was refreshingly straightforward and consistent. I would summarize his case as follows:

  1. Any ‘invention’ that falls within one of the four categories of process, machine, manufacture, or composition of matter and that is useful is patent eligible, and the ‘inventors’ are therefore entitled to a patent, provided only that the conditions of sections 102 (statutory ‘novelty’), 103 (statutory ‘non-obviousness’) and 112 (written description, definiteness, enablement etc.) have been met.
  2. Under the plain words of the statute, any ‘process’ is patent-eligible.
  3. Therefore, if the USPTO has not identified any prior art invalidating the claims under the conditions of sections 102 and 103, Bernard Bilski and Rand Warsaw are entitled to their patent.

(Disclaimer: I am not a lawyer, and others better qualified than me might summarize Mr. Jakes's case on behalf of Bilski more accurately than I can.)

Justices Scalia, Breyer, Ginsburg and Sotomeyer, put the contrary view, namely that patents are intended for inventions in the “manufacturing arts”, not for the ‘inventions’ of a Dale Carnegie, or for speed dating. Then Chief Justice Roberts moves in, observing that to him, claim 1 seems to be drawn to an abstract idea:

“ What -- I'm looking at your Claim 1, in Joint Appendix page 19 to 20. How is that not an abstract idea? You initiate a series of transactions between commodity providers and commodity consumers. You set a fixed price at the consumer end, you set a fixed price at the other end, and that's it. I mean, I could patent a process where I do the same thing. I initiate a series of transactions with sellers. I initiate a series of transactions with buyers. I buy low and sell high. That's my patent for maximizing wealth. I don't see how that's different than your claim number 1.“

I suggest that this observation is particularly significant, with the benefit of hindsight, because it expresses the ground on which the majority of the Supreme Court held that Bilski was not entitled to a patent:

“Rather than adopting categorical rules that might have wide-ranging and unforeseen impacts, the Court resolves this case narrowly on the basis of this Court's decisions in Benson, Flook, and Diehr, which show that petitioners' claims are not patentable processes because they are attempts to patent abstract ideas. Indeed, all members of the Court agree that the patent application at issue here falls outside of § 101 because it claims an abstract idea.” Bilski v. Kappos, 130 S.Ct. at 3219-3220.

It should be noted that, all though the above quotation is taken from the ‘Opinion of the Court’, delivered by Justice Kennedy, and joined by four other Justices, it is nevertheless stated that all nine Justices were in agreement that the patent application claimed an abstract idea, and was therefore unpatentable.

Returning to the oral argument, Mr. Jakes in his response to Chief Justice Roberts is consistent: “If that was a novel and unobvious method, then it should be patentable, but it's eligible as subject matter…”

Justice Kennedy moves in. He points out that the insurance business really began in England in 1680, and that, according to Mr. Jakes's view, the process of issuing insurance would have been patentable. But “it's difficult for me to think that Congress would want to—would have wanted to give only one person the capacity to issue insurance.”

Consistent with his brief, Mr. Jakes has no option but to suggest that the process of issuing insurance would be patent-eligible. Presumably the Supreme Court had by now got the measure of Mr. Jakes, and their remaining questions seem directed to establishing how far he would go in his view that all forms of human activity are potentially patent-eligible. Chief Justice Roberts is very clear as to the kinds of processes that Mr. Jakes would consider patentable: “ You get on the phone and you call the baker and you get on the phone and you call the grocer and say: I can set up a deal for both of you?”. And indeed Mr. Jakes has to agree that such a “process” could be patent-eligible. Similarly Justice Kennedy establishes that, to make the insurance ‘process’ patent-eligible, it would suffice for a person to go over to the Bureau of Statistics and compile statistics on life expectancy.

But perhaps the most memorable probe was that of Justice Scalia:

“You know, you mention that there are all these—these new areas that didn't exist in the past because of modern business and what-not, but there are also areas that existed in the past that don't exist today. Let's take training horses. Don't you think that—that some people, horse whisperers or others, had some, you know, some insights into the best way to train horses? And that should have been patentable on your theory.”

This puts Mr. Jakes in the unenviable position of trying to explain away the fact the Commissioner of Patents did not issue substantial numbers of patents to horse-whisperers in the 19th century.

Justices Stevens and Kennedy also establish that, as regards Supreme Court jurisprudence, Mr. Jakes bases his argument on the dicta in Diamond v. Diehr. And when Justice Breyer presents the economic justification for awarding patents, Mr. Jakes can only respond with “I think the answer is to follow the statute”. In other words, he bases his argument on the theory that the ‘plain words’ of Section 101 of the statute must be taken literally.

When Mr. Jakes's time has come to an end, the Court move on to consider the arguments put forward by the Deputy Solicitor General, Malcolm L. Stewart. The interrogation of Mr. Stewart by the Justices proves to be significantly more revealing.

Mr. Stewart is very keen to sell the Machine or Transformation test for statutory processes to the Supreme Court. Justice Alito makes his only contribution to the proceedings:

Near—near the end of your brief you argue that—that the patent here is—is not—is unpatentable on the independent ground that it would preempt the abstract idea of hedging consumption—consumption risk. If you—if you are right about that, is this a good case for us to get into the—into the very broad issue that Petitioner has raised?

With the benefit of hindsight, we know that this is precisely the ground on which the majority on the Supreme Court deemed Bilski's patent claims invalid. But, according to Mr. Stewart, this is not the approach that the Government wanted the Supreme Court to adopt: “ I—I think we would certainly prefer to win on our primary ground…” Mr. Stewart continues his efforts to sell the Machine or Transformation Test.

Justice Sotomayor floats an alternative: the Supreme Court could simply declare that business methods are unpatentable. (This of course proved to be the position taken in Justice Stevens's opinion, concurring in judgment, which was joined by Justices Breyer, Ginsburg and Sotomayor.) But the idea puts Mr. Stewart in a fluster. He is worried that a categorical exception for business methods would cast a shadow over the Federal Circuit's holding in State Street: “So to say that business methods are categorically ineligible for patent protection would eliminate new machines, including programmed computers, that are useful because of their contributions to the operation of businesses.…”

Justice Breyer then counters by pointing out that the Machine or Transformation Test approved by the Federal Circuit as its sole dispositive test raises more questions than it answers:

“Now, you say what is it they have done in this case in the Federal Circuit? They have pulled back. That's a move. That's a move. They pulled back insofar as they are pulling back from business methods, not machines, dah, dah, dah, dah, dah. Okay, we see no problem with that. Now, they have left much unresolved. One, transformation; how broad or narrow is that? We don't know. Many people's problems will be solved if it's broad on the one hand or narrow in the other. Two, are you automatically patented—in the patent statute, if you just sort of reduce this to a machine by adding a computer on at the end? They've flagged that as a problem. They haven't answered it. Could there ever be a situation where it doesn't meet this test but still is patentable? We are not sure.”

Mr. Stewart continues with an exposition of how he considers the Machine or Transformation Test compatible with the body of case law from the 19th century onwards. But Chief Justice Roberts interrupts with a very significant question:

Mr. Stewart, I thought I understood your argument up until the very last footnote in your brief. And you say this is not—simply the method isn't patentable because it doesn't involve a machine. But then you say but it might be if you use a computer to identify the parties that you are setting a price between and if you used a microprocessor to calculate the price. That's like saying if you use a typewriter to type out the—the process then it is patentable. I—I—it—that takes away everything that you spent 53 pages establishing.

This comments prompts Mr. Stewart to explaining how a mere veneer of computer-implementation could have rescued Bilski's patent application:

Well, I guess there—there were two different places, I believe, at which we identified ways in which this sort of hedging scheme might be made patent eligible. The first is we described a hypothetical interactive website in which people—parties and counterparties could essentially find each other by the computer and could agree to terms on that basis. And in that situation, the—the computer would be at the heart of the innovation. It would be—

But Chief Justice Roberts is too astute to fall for the notion that mere invocation of transacting business ‘using a computer’ or ‘over the Internet’ or ‘by means of an interactive website’ can confer patentability on an otherwise unpatentable process:

“No, no. That's just saying instead of looking at the—in the Yellow Pages, you look on the computer; and that makes all the difference to you?

But Mr. Stewart makes clear his position that an “interactive computer techique” amounts to more than simply looking in the Yellow Pages. But Chief Judge Roberts remains unimpressed: “But if you look at your footnote, that involves the most tangential and insignificant use of a machine. And yet you say that might be enough to take something from patentability to not patentable.” And later, pressing the point: “So you think it's a hard question. If you develop a process that says look to the historical averages of oil consumption over a certain period and divide it by 2, that process would not be patentable. But if you say use a calculator, then it—then it is?”

Justice Sotomayor moves the argument on, making it clear that it would not be a good thing for the Supreme Court to declare the Machine or Transformation Test to be an exclusive test in its holding in Bilski, if there were a possibility that the Court might be put in a position of having to recant in some later case:

“So help us with a test that doesn't go to the extreme the Federal Circuit did, which is to preclude any other items, something we held open explicitly in two other cases, so we would have to backtrack and say now we are ruling that we were wrong, and still get at something like this?”

But now another key question has occurred to Justice Ginsburg. Who came up with the Machine or Transformation Test in the first place? She asks: “Mr. Stewart, did you—does the government put forward this machine-or-transformation test? Was that your test, or was it the Federal circuit's on its own?”

Mr. Stewart admits that the Government came up with the test.

Justice Ginsburg then points out the “simplicity” of Judge Mayer's opinion: patents should be limited to advances in technology. She also points out that such a restriction is commonplace outside the United States.

Justice Kennedy brings the discussion back to State Street. It seems that the Government, back in 2009, was only too happy to stand over State Street. Clearly Mr. Stewart considers that the fact that the patent in that case was drawn to a machine (namely a programmed computer) should be more than enough to establish patent-eligible subject matter. Justice Kennedy presses the point; “Just looking at the whole case, do you think the State Street holding—the State Street invention was patentable?” Mr. Stewart states that it was.

At this point Justice Stevens seeks clarity, and gets Mr. Stewart to state that the ‘invention’ in State Street would still be considered patentable: ‘the Federal circuit's decision in State Street would come out the same way under our test.’

But is this what the Supreme Court Justices want to hear? Justice Stevens asks: “And you think it should? You think it should?”

Mr. Stewart says “Yes”, prompting Justices Stevens Kennedy and Breyer to express their problems and disagreements with this position. Mr. Stewart seems to become really flustered as it becomes clear to him that the Supreme Court Justices don't ‘understand’ the Federal Circuit's dicta in Alappat. Moreover the PTO seems only too comfortable with Alappat's dictum that programming a computer turns a computer into a patent-eligible “special purpose machine”, and they would clearly be happy if the Supreme Court did not mess things up for them in that regard.

But Justice Breyer understands perfectly the implications of this position:

“But then all we do is every example that I just gave, that I thought were examples that certainly would not be patented, you simply patent them. All you do is just have a set of instructions for saying how to set a computer to do it. Anyone can do that. Now, it's a machine.

“So all the business patents are all right back in. Now, that—what I think we were looking for was—or at least I was—was why that isn't so, and how you are going to later, down the road, deal with this situation of all you do is you get somebody who knows computers, and you turn every business patent into a setting of switches on the machine because there are no businesses that don't use those machines.”

Mr. Stewart finally gets some uninterrupted minutes to summarize his main points.

Looking at, and listening to, this oral argument with the benefit of hindsight, it seems only to clear that the PTO would have been only too happy if the Supreme Court had placed their imprimatur on their Machine or Transformation Test. Such a test would weed out the really egregious applications like Bilski or Comiskey. But it would have left the PTO free to continue to issue troll patent after troll patent on computer-implemented methods of doing business, or delivering advertising, or on methods of doing business ‘over the Internet’. It is clear from what was said that they would have issued a troll patent to Bilski, if only Bilski had included a few diagrams showing some standard computer hardware networked together, and included a few sentences including the words “computer” “network” or “website” in the specification and the claims. (The PTO would presumably have required no more than the minimal veneer of computer-implementation considered sufficient in order to justify issuing the patents that are currently under litigation in CLS Bank v. Alice Corp and Ultramercial v. Hulu.) And if the PTO were forced to justify the practice of issuing such troll patents, they would have a recently-minted Supreme Court judgment to validate their position.

But the Supreme Court clearly flushed out where the Government was coming from. And they clearly decided that they agreed with neither party in the litigation. Moreover the Supreme Court agreed unanimously on a lot of things. But they could not agree on whether or not to declare a categorical exclusion for business methods. It would appear that the liberal wing were swayed by the historical practice over centuries of not issuing such patents. But the conservative wing were more concerned with principles of statutory interpretation. And given that the statute included a mention of patents on methods of doing business in one of this provisions, they could not hold that there was any categorical exception for business methods implicit in the statute. Therefore they regarded it as sufficient to reject Bilski's claims as being drawn to an abstract idea, and, in the process, establish that they still considered both Benson and Flook to be good law (thus refuting Judge Rich's claim, in State Street, that these cases had been effectively overruled by Chakrabarty and Diehr.)

As I have said before, I am not a lawyer. But, for what it is worth, the above is what I consider was at issue in the Bilski oral argument.

[ Reply to This | Parent | # ]

North Korean Missile Test Delayed by Windows 8
Authored by: Anonymous on Thursday, April 11 2013 @ 09:27 PM EDT
PYONGYANG (The Borowitz Report)—North Korea’s official news agency announced
today that the military’s planned missile test had been put on hold because of
“problems with Windows 8.”

Intelligence analysts said that the announcement gave rare insight into the
inner workings of North Korea’s missile program, which until last year had been
running on Windows 95.

The announcement from the Korean Central News Agency (KCNA) did not indicate a
new scheduled time for a missile test, saying only that it was “working with
Windows 8 support to resolve the issue.”

In the words of one intelligence analyst, “That means the test been delayed
indefinitely.”

A source close to the North Korean regime reported that Supreme Leader Kim
Jong-un is furious about the Windows 8 problems and is considering a number of
options, including declaring war on Microsoft.

http://www.newyorker.com/online/blogs/borowitzreport/2013/04/north-korean-missil
e-test-delayed-by-windows-8.html#entry-more

[ Reply to This | Parent | # ]

How much wood could a Woodchuck chuck if a Woodchuck could chuck wood?
Authored by: Barrowwright on Friday, April 12 2013 @ 04:35 AM EDT
Just as much wood as a Woodchuck could
if a Woodchuck could chuck wood.

Easy. Learned that at my mother's knee.

---
Barrowwright

[ Reply to This | Parent | # ]

Dirty Tricks - Exxon Hates Your Free Speech, Tries to Censor Satirical Ad
Authored by: Anonymous on Friday, April 12 2013 @ 07:08 AM EDT
In the wake of a major pipeline spill in Mayflower, Arkansas, Exxon has launched a dirty tricks campaign to prevent Little Rock television stations from running a political ad titled, “Exxon Hates Your Children.”

The ad, which can be viewed at exxonhatesyourchildren.com, makes an obviously over-the-top assertion about the company’s views about children, in order to call attention to the creators' serious concerns about the company’s policies. To try to keep it off the air, Exxon is circulating a memo to television stations claiming that the commercial is “defamatory toward each of ExxonMobil’s 80,000 employees and their families.” Exxon goes on to describe good things the company does for children and the environment.

The ads, which were paid for through crowdfunding, were scheduled to run on local ABC, NBC, and Fox stations this week, but were taken off the schedule when the stations got the memo. In February, Exxon pulled the same stunt when Comcast was set to air the ad during the president's State of the Union address.

With help from EFF, the activists behind the ad, Oil Change International, are fighting back.

Corynne McSherry, EFF

[ Reply to This | Parent | # ]

Off topic
Authored by: Anonymous on Friday, April 12 2013 @ 09:52 AM EDT
How much wood could a Woodchuck chuck, if a Woodchuck could chuck wood?

It might help your analysis if you realized that the slogan is from a beer
commercial.

Woodchuck is a apple cyder beer in this part of the world.

[ Reply to This | Parent | # ]

Would a Woodchuck called ChuckWood chuck wood if a can chucker called ChakaKhan chucked a can?
Authored by: SirHumphrey on Friday, April 12 2013 @ 11:42 AM EDT
Can a can chucker called ChakaKhan chuck wood if a woodchucker called ChuckWood
said he could? Would a Woodchip chip woodchuck-chucked wood if a woodchuck
chucked ChipWood wood chips? Should a WoodShop shop ChuckWood-chucked wood to a
chop-shop shipping chips in a can? If a "can-can" can
Cancun-"can-can", can a Cancun-"can-can" can-can cans? If a
woodgrub could grub good hood wood and a canchuck can chuck cans, can a good
'hood Nun chuck wood nun-chucks if a nun-chuck Nun chucks none?

[ Reply to This | Parent | # ]

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