It isn't really a free speech issue. The Constitution protects against government action, and doesn't necessarily protect you against entering into agreement with private parties. From a legal standpoint, there's no free speech issue to form the basis of a challenge.
There is good reason to find such contractual provisions void for public policy, however. If that happens, even in a few jurisdictions to begin with, the practice will probably decline. In the mean time, to the extent possible it is best not to do business with people who want you to sign this sort of thing.
That's not necessarily true. It is generally true of trademarks, but not true of 'famous' marks. I suspect the owners of "the Hobbit" for movies etc. will try to argue it is famous. Probably a bit of a stretch, but who knows.
The Apple iPlug example is not a good one, because Apple would likely be successful in the argument for a famous mark.
That sort of thing should already be sufficient under the patent law to render an invention "obvious." The problem is, the patent examiners still rely primarily on the patent literature for their rejections. They don't do a whole lot of searching outside of what is in the patent databases.
There's a practical problem in terms of getting the relevant art in front of the examiners.
Congress can't "eliminate" inventions, of any sort.
They can certainly eliminate the patentability of a class of inventions by statute. All it takes it to revise the patent laws so that software is not considered "patentable."
Recipes are patented, however. In a sense, anyway. You can find patents for bread dough and frosting and other food items going back to at least the 1950s. They get patented as compositions, where a frosting may have X% fats, Y% sugars, etc. Not a recipe in the sense of "add a tablespoon of salt," but the final composition that comes out as a result of the recipe has long been protectable.
That's also something Congress can remedy, however, but simply making software unpatentable. Whether patentable or unpatentable, some certainty would be a lot better than what we have now.
It is well past time the legislature got directly involved in the areas of software and business method patents. This assumes they would do the right thing (don't laugh). It has to be better than all the uncertainty coming out of the courts, who are going back and forth trying to come up with a place for these types of 'inventions' within the patent laws.
The Courts are supposed to apply the law Congress has written, which is fairly broad in this case and which hasn't changed much at a basic level (definition of what is patentable) in a long time. Technology has outpaced the statute, and in situations like this Congress is supposed to clarify things by going in amending the statute. If they wanted to eliminate these sorts of inventions altogether, they could do so. At the very least they need to provide some certainty to the marketplace.
Thank you for this information. Very helpful. It looks like a lot of these practicalities are already being addressed. Hopefully, more content will be available, digitally, through libraries, and the content producers will be able to take advantage of the opportunity in front of them. It seems to me the companies that control the content are so conservative and resistant to change (probably due to a failure to adequately understand the digital world) that they miss out on opportunities to adapt their business model. Then, when the unadapted business model starts to fail they point the finger at digital media in general, instead of being reflective and figuring out how they can become part of that market.
I believe that libraries should be allowed to have lending programs for ebooks. I do not think the author's analogy to traditional publishing is entirely correct, however.
There are a couple if differences between the traditional library-lending practice and ebooks that come to mind right away:
1) Borrowing a book from a library has always been at least a little less convenient than buying it. Some of the inconveniences remain, such as signing up for membership with the library, others, such as returns and renewals, are largely removed in the case of ebooks;
2) Libraries, for practical reasons, have to limit the availability of physical books. Shelf space is valuable. A limited selection of works is available, and limited numbers of the selected works are available. These factors further inconvenience the traditional borrower who may go to a library only to find that it does not have the book he seeks, or that all copies are currently checked out. There is no reason for these factors to exist in digital lending.
I like the idea of ebook lending in libraries, but it isn't entirely unreasonable to see the worry that if any person can go online, create a quick library account, and read the latest books for free, it could have a great impact on the market than traditional lending. The right response from content owners, of course, is not to disallow lending entirely.
The SC has to act within the bounds of the patent laws as passed by Congress. They interpret the law, and can establish doctrines as is done in common law so long as those don't outright conflict with the statutes that have been passed. Part of the problem is that many of the issues we face now weren't around when the patent laws were written, and the SC is limited in how they can approach it. They can't rewrite the patent statutes just because they feel like it.
The way it 'should' work on something like this is that Congress says 'hey, this is crazy' and steps in and amends the patent laws to take these new situations into account and provide the correct result.
There are few people, if any, who do not recognize that smoking is bad for you. This has been recognized for many decades. Politicians need to find better things to do than to tell cigarette makers to put warnings on their packaging. People are intelligent enough to recognize the risks and make their own decision on whether or not to smoke without all of the time and money wasted by government in fighting with tobacco companies over ridiculous label requirements.
Yeah. The thing about the ruling is that it leaves open the treatment and the diagnostic use of stem cells, which is where a lot of the market is. The ruling just limits the ability to patent processes used in the primary scientific research.
Getting rid of patents doesn't address the cost of going to market that investors bear and part of the reason they want to see a patent portfolio to begin with. The perceived necessity to patent, particularly in biotech and pharma, is due in large part to the costs of taking a product through the regulatory approval process. Getting rid of patents doesn't address that problem, and given the costs associated with it, it would just make it even harder for small companies and startups to get the investment they need. It would benefit the very large, entrenched powers because they already have the ability to fund the process.
(untitled comment)
It isn't really a free speech issue. The Constitution protects against government action, and doesn't necessarily protect you against entering into agreement with private parties. From a legal standpoint, there's no free speech issue to form the basis of a challenge.
There is good reason to find such contractual provisions void for public policy, however. If that happens, even in a few jurisdictions to begin with, the practice will probably decline. In the mean time, to the extent possible it is best not to do business with people who want you to sign this sort of thing.
Re: Trademark does not transfer across industries.
That's not necessarily true. It is generally true of trademarks, but not true of 'famous' marks. I suspect the owners of "the Hobbit" for movies etc. will try to argue it is famous. Probably a bit of a stretch, but who knows.
The Apple iPlug example is not a good one, because Apple would likely be successful in the argument for a famous mark.
More on the patents...
The ten patents, along with the first claim of each and the filing date, are here:
https://plus.google.com/u/0/109666216625003157538/posts
Re: Immediate Obviousness of the Internet as Consolidated Prior Art over Computers.
That sort of thing should already be sufficient under the patent law to render an invention "obvious." The problem is, the patent examiners still rely primarily on the patent literature for their rejections. They don't do a whole lot of searching outside of what is in the patent databases.
There's a practical problem in terms of getting the relevant art in front of the examiners.
Re: Re: Re: Re:
If that was the point you were going for, you didn't state it very well.
Re: Re:
Congress can't "eliminate" inventions, of any sort.
They can certainly eliminate the patentability of a class of inventions by statute. All it takes it to revise the patent laws so that software is not considered "patentable."
Re: Re: Software Patents is Pounding Square Peg into Round Hole
Recipes are patented, however. In a sense, anyway. You can find patents for bread dough and frosting and other food items going back to at least the 1950s. They get patented as compositions, where a frosting may have X% fats, Y% sugars, etc. Not a recipe in the sense of "add a tablespoon of salt," but the final composition that comes out as a result of the recipe has long been protectable.
Re: Software Patents is Pounding Square Peg into Round Hole
That's also something Congress can remedy, however, but simply making software unpatentable. Whether patentable or unpatentable, some certainty would be a lot better than what we have now.
(untitled comment)
It is well past time the legislature got directly involved in the areas of software and business method patents. This assumes they would do the right thing (don't laugh). It has to be better than all the uncertainty coming out of the courts, who are going back and forth trying to come up with a place for these types of 'inventions' within the patent laws.
The Courts are supposed to apply the law Congress has written, which is fairly broad in this case and which hasn't changed much at a basic level (definition of what is patentable) in a long time. Technology has outpaced the statute, and in situations like this Congress is supposed to clarify things by going in amending the statute. If they wanted to eliminate these sorts of inventions altogether, they could do so. At the very least they need to provide some certainty to the marketplace.
Re: Re:
Thank you for this information. Very helpful. It looks like a lot of these practicalities are already being addressed. Hopefully, more content will be available, digitally, through libraries, and the content producers will be able to take advantage of the opportunity in front of them. It seems to me the companies that control the content are so conservative and resistant to change (probably due to a failure to adequately understand the digital world) that they miss out on opportunities to adapt their business model. Then, when the unadapted business model starts to fail they point the finger at digital media in general, instead of being reflective and figuring out how they can become part of that market.
(untitled comment)
I believe that libraries should be allowed to have lending programs for ebooks. I do not think the author's analogy to traditional publishing is entirely correct, however.
There are a couple if differences between the traditional library-lending practice and ebooks that come to mind right away:
1) Borrowing a book from a library has always been at least a little less convenient than buying it. Some of the inconveniences remain, such as signing up for membership with the library, others, such as returns and renewals, are largely removed in the case of ebooks;
2) Libraries, for practical reasons, have to limit the availability of physical books. Shelf space is valuable. A limited selection of works is available, and limited numbers of the selected works are available. These factors further inconvenience the traditional borrower who may go to a library only to find that it does not have the book he seeks, or that all copies are currently checked out. There is no reason for these factors to exist in digital lending.
I like the idea of ebook lending in libraries, but it isn't entirely unreasonable to see the worry that if any person can go online, create a quick library account, and read the latest books for free, it could have a great impact on the market than traditional lending. The right response from content owners, of course, is not to disallow lending entirely.
(untitled comment)
GoDaddy is out against the bill now, too.
(untitled comment)
Too bad the guy wasn't Tweeting copyright-protected material. Then they would have nailed him.
(untitled comment)
The SC has to act within the bounds of the patent laws as passed by Congress. They interpret the law, and can establish doctrines as is done in common law so long as those don't outright conflict with the statutes that have been passed. Part of the problem is that many of the issues we face now weren't around when the patent laws were written, and the SC is limited in how they can approach it. They can't rewrite the patent statutes just because they feel like it.
The way it 'should' work on something like this is that Congress says 'hey, this is crazy' and steps in and amends the patent laws to take these new situations into account and provide the correct result.
(untitled comment)
The producers need to have George Lucas come in and re-film it so the neighborhood shoots at Mythbusters first.
(untitled comment)
Go to the Yelp page, click on "Rating Details" and then look at the Ratings Over Time graph. It just looks hilarious.
(untitled comment)
There are few people, if any, who do not recognize that smoking is bad for you. This has been recognized for many decades. Politicians need to find better things to do than to tell cigarette makers to put warnings on their packaging. People are intelligent enough to recognize the risks and make their own decision on whether or not to smoke without all of the time and money wasted by government in fighting with tobacco companies over ridiculous label requirements.
Re: Re: Re: Re:
Yeah. The thing about the ruling is that it leaves open the treatment and the diagnostic use of stem cells, which is where a lot of the market is. The ruling just limits the ability to patent processes used in the primary scientific research.
Re: Re: Re: Re:
Getting rid of patents doesn't address the cost of going to market that investors bear and part of the reason they want to see a patent portfolio to begin with. The perceived necessity to patent, particularly in biotech and pharma, is due in large part to the costs of taking a product through the regulatory approval process. Getting rid of patents doesn't address that problem, and given the costs associated with it, it would just make it even harder for small companies and startups to get the investment they need. It would benefit the very large, entrenched powers because they already have the ability to fund the process.