I wonder why they don't mention "obviousness?" It is true that for a patent claim to be anticipated, each and every element of the claim has to be present in a single reference. However, to be valid a patent claim must also be non-obvious, and that requirement of a single reference doesn't exist in that case.
Watching the video, I get the sense that this guy (and probably the rest of the jury) really did try to do what they thought was correct under the law. I think that fact, in and of itself, can support Mike's contention that a jury isn't the best arrangement for patent cases. Having an arbiter that understands the nuances of the law better would lead to better decisions, and probably just as importantly more predictable decisions so that companies getting involved in an industry have a decent idea of the bounds of the patents in that field. This case makes it seem kind of like a crap shoot.
I don't believe the Constitution guarantees a jury in every civil case, however. I suppose you could have specialized courts at the trial level, just as you have the Federal Circuit at the appeals level (not that the Federal Circuit is infallible).
I think the initial debacle shows the dangers of acting without thinking (or knowing) when using social media.
That said, personal attacks and threats against these writers, no matter that they were in the wrong, are way out of bounds. I'm glad the owner of LendInk said as much as well. As Dark Helmet notes, people making these threats are idiots. But it is a reality of social media today that if you step in it you're going to be the focus of a bunch of idiots until they find the next thing to attract their attention. Doesn't make it right, but people need to realize it happens and be smart.
More and more States are introducing alternative routes to certification, which I think is a good thing.
Using myself as an example here: I've taught both law and science at the University level. I've given talks on both subjects to high schools and junior high schools in the U.S. and Canada. I'm good at it (if I can toot my own horn for a moment). I'm particularly good with junior high and high school students, mostly because those are the age groups I really enjoy working with, and I can teach the subjects in a way that seems to connect with them.
I am not currently "qualified" to teach at a junior high or high school full time. I've started the process to become qualified, but it will be slow I think. The truth is, I could do it tomorrow and do it well, but even though we have a great need for good science teachers here I couldn't get hired (and it certainly isn't about money; I'd be taking about a 75% pay cut).
My personal view is that many of the requirements for getting a teaching certification are great when dealing with younger children. I wouldn't be comfortable teaching first graders, for example, without knowing more about child development specifically as it relates to that age group.
Once you get to junior high or high school, however, I think training in the subject matter is the most important in terms of formal education. The ability to connect with the students and teach them seems to me to be something that is inherent in the person. I know people who have Ph.Ds who are not qualified to teach in high school, but who would be brilliant at it. I also know certified teachers who teach in high schools who hate the job and frankly are not very good.
I think an alternative route to get people who would be great teachers into the school is an idea that is long overdue. On the whole, I view the obstacles regarding certification (when it comes to that level) to be more about protectionism than about ensuring that good teachers are in the classroom.
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.
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: 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.
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.