This is typical of Masnick, saying a patent covers something it doesn't in order to sensationalize and inflame. This patent does not cover an "Internet protocol (IP) phone with search and advertising capability". Mike, you are a damn liar to deliberately say it does. You know very well that is just a title, not a patent claim. Even someone as dishonest as Mike knows you can't infringe a patent title, you can only infringe a patent claim. If Mike was trying to be honest (but being honest would not inflame TD's readership), he would have checked the claims and the prosecution history of the patent to see what it actually covers. The last paragraph of claim 1 was the distinguishing subject matter that resulted in allowance, and portrays a much, much narrower scope than Mike dishonestly implies. The '955 patent covers an IP phone that displays ads, lets you choose what to buy, allows you to order without making a phone call, and allows the seller to charge your account without getting your contact or account information (which is important to help prevent identity theft). That last clause of claim 1 expresses that limitation on the scope in this way: "wherein said information received by said user of said IP phone comprises a variety of offers, wherein said user selects one of said variety of offers associated with said one of said merchants listed, wherein said selected offer is transmitted to said one of said merchants listed electronically; and wherein said user's contact and payment information is not transmitted to said one of said merchants listed, wherein said user's contact and payment information is available to said one of said merchants listed." That is admittedly rather awkward wording, but the intent seems clear enough.
As to infringement, anticipation and obviousness, this claim seems to me to read on a PayPal or Google Checkout enabled smartphone purchasing app since those make your charging information available to merchants without transmitting the actual account information. That is, after all, one of the main appeals of PayPal and Google Checkout, that you know your account information stays at PayPal or Google and all the merchant needs and gets is the public name of the PayPal or Google account. That is obvious enough now. However, dial back the clock to 1995 and ask again, were those around in 1995 when this patent was filed? PayPal dates back to 1998-1999 when Confinity and X-com merged and was designed as payment system for a Palm Pilot. Whether that approach was public 5 years earlier, that is, before the critical date in 1994 will be a question for the Court to decide.
But, to blatantly post that a patent covers its title rather than its patent claim is irresponsibility of the sort for which Mike Masnick is infamous. Liar, liar, pants on fire.
Clear and convincing is the right standard. The USPTO has examined every patent application prior to issuing a patent. That is a prior adjudication by a trained expert in the field, in fact arguably the best trained experts in the world.
If we returned to a registration system for patents, and I think we should, then a preponderance would be the right standard, since there would have been no prior adjudication. But, that is not where we are, we are here with a thorough examination having been made that deserves respect. Sure Mike and the other invention theives that post on this site would like to more easily steal inventions, but Mike and the thieves are going to lose this case, and lose badly.
That examination is a prior quasi-judicial finding which is entitled to respect in court, just as prior decisions of lower courts are given respect by higher courts. That is what the "clear and convincing" standard accomplishes.
The only aspect of Mike's analysis that is correct is that "it is simple, really."
There is a huge difference in evidence between a dubious preponderance and clear and convincing. . I am in that field and I think you are an idiot, as the potential difference would be huge on 99% of patent cases. Nice to see the Government on the side of patent validity rather than patent theft.
Moron, there is a huge difference in evidence. I am in that field and I think you are an idiot, as the potential difference would be huge on 99% of patent cases.
Being a VC and having represented VCs and startups for 20 years, I know patents are almost invariably a boon not an obstacle to startups. Masnick lies to the contrary are a constant theme on TechDirt. "If the theory doesn't fit the facts, change the facts." Albert Einstein
1. VCs want protection for the new ideas of start-ups and look to patents, trademarks, copyrights, domain name registrations, trade secrets, franchise rights, permits, licenses, and the like to find protection. If a startup has patents and/or the other items it is much more likely to get funded, Masnick foolishness to the contrary notwithstanding.
2. Start-ups are often not concerned so much with the patents of others, as they are not big enough when they start to draw fire. I know, I am also a patent litigator that often has to advise a patent owner that it simply is not worth a lawsuit against a startup when the expenses exceed the likely recovery, unless the startup seems likely to grow rapidly or is in an especially important area for the patent owner or where an example needs to be set at any cost. What start-ups hope, and usually find, is that they do not draw fire prior to discovering a workaround or until they start hurting the big guys, and by then the startup often has technology and patents of its own and has been in the field long enough to figure a workaround.
3. Patents of others spur innovation as start-ups try to come up with designarounds. Been there, done that. Often in attempting to design around, the start-up finds flaws in the patented item and develops an improved and better item in the process. That, contrary to misguided misinformation from Masnick, is progress of the useful arts and sciences promoted by granting exclusive rights for limited times to inventors. Read the Constitution and repent of you ill gotten ideas to the contrary.
This sounds like a British version of the portal www.usa.gov. Simple enough, just follow the US example.
This sounds like a British version of the portal www.usa.gov. Simple enough, just follow the US example.
Funny, I see small entities commercializing all the time. Staff caught making stuff up again.
You miss the point. Small entity invents, spends to commercialize unless too expensive to do so, big entity steals it, small entity steamrolled, unless small entity can create something else so it can be stolen. Small entity stays small and big entity gets the big bucks and donates to help fund TechDirt.
-STV-If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it.
-MM Which actually hurt a ton of small businesses that came up with similar ideas independently or built better products that would benefit the market.
Both correct, a patent registration system (like copyrights) where copying severely punished but independent invention would merely pay a reasonable royalty so the first inventor gets his Constitutional "reward" incentive, would solve this dilemna.
-MM "This is not true. Injunctions are absolutely still available, it's just that they're not default. Staff shouldn't lie. It looks bad."
Talking past each other, I see. MM wrong, as injunctions are seldom available for an NPE inventor now, which is not necessarily a bad thing so long as an researcher/inventor still gets a fair reward as an incentive to continue to research and invent.
Call it what you will...patent hoarder, patent troll, non-practicing entity, etc. It all means one thing: ?we?re using your invention and we?re not going to pay?.
Or, "we came up with a vague idea that tons of others also had, and now we're not going to let anyone develop it unless they pay us a toll."
Both wrong. patent hoarder, patent troll, NPE, etc. mean no injunction, but reasonable royalty remains. Problem is, the Constitution calls for "securing for limited Times. . . the exclusive Right" and eBay v Merc takes that away for many NPEs. However, since copyrights come from the same clause, I think it would be reasonable to have a similar registration system which would take a billion dollars of PTO cost out of the patent system. We could replace it with a patent royalty tribunal similar in function to the copyright royalty tribunal so inventors got a fair reward. The advantage would be super quick publication (perhaps even instant), PTO examination as to novelty only, and we would take a billion dollars out of the patent litigation costs since we would have court determination only as to copying (in similar fashion to copying determinations in copyright cases)
-MM Thing is, studies have shown repeatedly that my version is what's happening. Your version almost never happens.
MM version, that injunctions are still readily granted for NPE's, is BS and is NOT what's happening in the real world. Which is TechDirt -- DumbasDirt or DishonestDirt. I'm thinking Dishonest
"I just received notification on a patent I applied for five years ago - Method of Air Intake into the Human Body for Life-Sustaing Purposes. With this new patent in hand, I plan to sue everyone who has the ability to breath."
Never heard of 35 USC 102 or 35 USC 103, I see.
The USPTO is not stupid, you are. American law is not a joke, you are.
"I just received notification on a patent I applied for five years ago - Method of Air Intake into the Human Body for Life-Sustaing Purposes. With this new patent in hand, I plan to sue everyone who has the ability to breath."
Never heard of 35 USC 102 or 35 USC 103, I see.
The USPTO is not stupid, you are. American law is not a joke, you are.
Well, TSA had a logical reason for its requirement, but I think TSA should have come to the end solution much quicker.
I worked for TSA for 7 years (left in disgust this year), so I think I understand perfectly why they were doing the screening, although I think their Screener and Supervisor did not take the appropriate action. The FSD did the right thing to just have this man escorted through the sterile area.
The reason for the screening was that this man's plane from France let the passengers out into the sterile area for domestic flights, meaning the area where they would have access to all other passengers on all other domestic flights. France does not screen per US standards, so additional screening, i.e.the intrusive BS that TSA is now having its dufus employees blindly follow for show (Theater Security ), was needed to satisfy the requirement that all passengers entering the sterile area have gone through this rigorous screening. The worry of TSA is that if they do not do this, terrorists can use a flight from France to Cincinnati to get explosives on a domestic flight without getting this type of screening and thus defeat the system. France is a known avenue for terrorists to try to bypass rigorous screening due to lax French screening.
Where the front line TSA idiots screwed up is not recognizing that since this passenger was from Cincinnati, all they needed to do was get him through the sterile area to assure he did not give a prohibited item to another cleared passenger, since that was the purpose of the additional post-flight screening of arriving passengers from the French flight. That is what the FSD (to top TSA official in Cincinnati)was clever enough to recognize to resolve the situation, which is why the TSA escorted the passenger through the sterile area to the public area.
I agree with you on this one, Mike. TSA stands for Those Stupid Asses but at least there was one guy (the FSD) with a brain and some common sense at the top to resolve it in a logical and secure way.
Reminder 1 - The Supreme Court has repeatedly and consistently for more than 150 years held that patents, copyrights and trademarks are property. See Brown v. Duchesne, 19 How. 183, 197 (1857) (?For, by the laws of the United States, the rights of a party under a patent are his private property?); cf., Consolidated Fruit-Jar Co. v. Wright, 94 U.S. 92, 96 (1877) (?A patent for an invention is as much property as a patent for land?.) You speak of history, but ignore the fact that the original grants of real estate in this country were titled "patents" since at that time "patent" meant open to public view. Mike, you and your ilk are wrong, as a matter of law. You are looking very, very ignorant, Mike. Lick your wounds, get over it and move on to something where you have at least a remote chance of success-putting unreasonable limits on the property-since at least there you are supported by patent pirates, copyright thieves and trademark counterfeiters, who share your desire to open up open up hard-earned IP for free adoption by loafers and free-riders.
Reminder 2 - IP is included as property on the balance sheets of substantially every patent owning company under the heading "intangible assets", and trademarks ARE included and lumped together with patents, copyrights, and recently "goodwill". This is basic accounting, as evidenced by the FASB (Financial Accounting Standards Board), which is much more authoritative than non-objective bloggers like you. You might check About.com under Investing for Beginners. You are looking very, very ignorant, Mike.
Reminder 3 - It is entirely proper to lump trademarks in with patents and copyrights as "property" and they do NOT arise from the Commerce Clause. Federal trademark registrations arise from the Commerce Clause, but trademarks came long before that. It exposes your ignorance to say otherwise. Again the Supreme Court has decided that trademarks are property (see AMERICAN NEEDLE, INC., PETITIONER v.NATIONAL FOOTBALL LEAGUE et al. decided May 10, 2010 in connection with finding that the NFL was not exempt from antitrust law - specifically section 1 of the Sherman Act.) Trademarks are actually the oldest form of intellectual property rights, but were protected under common law. To quote the Supreme Court in 1879 "The right to adopt and use a symbol or a device to distinguish the goods or property made or sold by the person whose mark it is, to the exclusion of use by all other persons, has been long recognized by the common law and the chancery courts of England and of this country and by the statutes of some of the states. It is a property right for the violation of which damages may be recovered in an action at law, and the continued violation of it will be enjoined by a court of equity, with compensation for past infringement. This exclusive right was not created by the act of Congress, and does not now depend upon it for its enforcement. The whole system of trademark property and the civil remedies for its protection existed long anterior to that act, and have remained in full force since its passage." The Trade-Mark Cases, 100 U.S. 82 (1879) The first trademark statute, enacted in 1870, was struck down by the Supreme Court in The Trade-Mark Cases, 100 U.S. 82 (1879), for exceeding the powers granted by the patent and copyright clause of the Constitution. Congress responded with the Trademark Act of 1881, which was based on its Commerce Clause powers. The current federal trademark statute is the Lanham Act of 1946, codified in Title 15 of the United States Code. You are looking very, very ignorant, Mike.
Lessons to be learned: Life is not fair. Cops are not always your friend. Churches officials are money-driven. Church officials and cops are often greedy people and greedy people bend laws and break laws. Blogging anonymously does not guarantee privacy. People defend themselves when attacked, even if the attacks are justified.
The patents here help by rewarding, albeit indirectly, those pioneers like Tom Van Horn, Richard Halber and Linda Perkins, who originated the idea, and encourage those risk takers like Paul Allen to invest in such things. In this case, Mike, you recognize that Allen's Mercata failed mostly due to timing (being ahead of its time). You conveniently neglected to mention this time (although you did previously) that Allen is co-owner of the plaintiff Tippr (having taken stock as part of the purchase price for his 12 patents), a major active competitor of Groupon. The patents are not for the overall concept of group-buying, but for a particular method of group buying using, among other things, a reserved limited time negotiated with the seller.
The claims are very broad, probably too broad to stand up in Court, either on subject matter or non-obviousness, as they appear about as mental and abstract in nature as those invalidated in Bilski and it is hard to see how having a private pre-sale could be nonobvious.
For example. claim 1 of US Pat No. 7263498:
"1. A method for sourcing a featured item for an on-line group-buying sale, comprising: communicating to a supplier a featured item quantity and a featured item time reservation; receiving the supplier's consent to reserve the featured item quantity for the negotiated featured item time reservation for sale in the on-line group-buying sale; conducting an on-line group-buying sale for the featured item during the featured item time reservation, selling at least a portion of the featured item quantity to one or more buyers; and supplying the featured items sold in the on-line group-buying sale to one or more buyers by instructing the supplier to provide the items to one or more buyers."
Now, another benefit of these patents, even if invalid as I suspect they are, is that they spur creativity. Groupon, if they have the creative ability, should be actively working on getting around these patents, and that activity may well lead to advances in the art of group buying online. If so, the patents will have helped an American company to progress the useful arts and sciences to create a competitive advantage by designing a better group buying experience. And Tippr, if it is to compete, will have to create a better method than the design around method Groupon will create, and so on. That is progress of the useful arts, promoted by patents, and is what the Constitution expressly sought to accomplish in Article 1, Section 8, Clause 8.
One final though about lawyers getting rich. Yes, lawyers will make money, but if a right is to be protected, it may take legal expertise to protect it, as it often must be, in the courts and administrative bodies. Lawyers are not the bad guys in legal battles any more than soldiers are the bad guys in military battles, unless they are on the side against you or lose your case. They are soldiers of the law and protectors of their clients as well as officers of the court and administrative bodies involved, and unlike their clients, must comply with an ethical code of conduct. For us lawyers it is better to win and be considered greedy and smart than to lose and be considered greedy and incompetent. In fact, in most cases it is the lawyers that act with civility and tone down the clients, not the other way around as commonly portrayed.
Intellectual property is property and saying otherwise exposes your biases and lack of thoughtful analysis, Mike. The essence of property is the ability to exclude others and use (or not use) it for yourself as you see fit. That ability to exclude others is the essence of the right that the patent, trademark or copyright grant conveys to the patent owner. None of these are fake and none a trick, as many patent infringement defendants have learned. You may play Don Quixote and argue incorrectly that these should not be property (i.e. that the Constitution should be changed), but you know very well they are property under current law.
A dairy subsidy is not a property right because it does not carry with it the ability to exclude others from having a similar or even identical subsidy. Same for a Superfund.
The majority of copyrights go not to Barbara Streisand or Eminem but to smaller artists and smaller authors. Mike, you know this but you choose to deliberately imply otherwise.
Einstein had a sarcastic quip about people like Mike, "If the facts don't fit the theory, change the facts."
"What terrorist tells in advance of their plans to blow up an airport."
Having worked for many years for TSA, I know it is actually the norm for terrorists to give advance warning of their intentions. There are many reasons for this: to cause terror, to maximize terror, to disrupt travel, to cause maximum expense to their adversary at minimal expense to the terrorist, to bleed their adversary with many small threats ("the death of a thousand cuts"), to thumb their noses at the ineffectiveness of security personnel who cannot prevent the explosion despite being warned, to frustrate security personnel, to make security personnel waste time and money figuring out which one is the REAL threat, to divert security forces on false tips, to be able to say "we warned you", to try to achieve their objective without having to actually detonate and kill (i.e. like a kidnapper's ransom note), to expose the incompetence of their adversary, to gain publicity for their cause, to gain a sense of justice in warning so civilians are evacuated, to attract security forces to the scene so that more security forces can be killed, to test out the security forces' capabilities and see if they can actually stop the plot ("dry runs"), etc. etc.
This is not merely a joke, it is a joke regarding a serious matter, and one that requires serious investigations to be made, causes serious expense, causes serious disruption and causes serious preventive steps to be taken on the off chance that it is a real threat. The joker should be penalized to dissuade future jokers.
So the question then is how to penalize and what the penalty should be. I believe people should be held accountable for their actions, not allowed to slide or to dump the costs of their actions onto someone else. Jailing the joker does not cover the costs, so to me the penalty should simply be to hold him responsible for ALL the extra expense his joke caused, which is likely thousands of dollars. Knowing that they would be forced to pay for the expenses caused by such jokes, future jokers would be likely to think a little more before shooting off their mouths (including their "online mouths") in this way, unwittingly aiding and abetting terrorism, and either deliberately or unintentionally causing disruption and expense.
Good post, Karl. I agree with the 1st, 3rd and 4th para. It is quite correct that Jefferson and Madison considered copyrights and patents limited monopolies, but not on abundant resources. In your second para, you have misstated slightly the nature of the exclusive rights of a patent, which also include "using and selling", although I think you know that. Likewise, to say that a patent is a monopoly on copying is not quite correct, as proof of copying is not required to show infringement. It is one of the advantages of a patent that unintentional infringement is still infringement. But, I'll stop there as this is off topic for this thread, which was on think tanks and how many are advocates dishonestly portraying themselves as independent. We see that in campaign funding sources, too.
I live in a farming area and talk to farmers every day. They still till the ground, plant seeds, grow crops, harvest crops, and repeat. They just do it more efficiently with better technology and more accurate information. Instead of a plow behind one ox, some have a 16 row strip-till machine worth $250,000 with GPS, AC and surround sound that tills more acres, more accurately, more quickly and more automatically. Instead of wondering if it will rain in two hours they wonder about next week. Instead of walking in the mud yelling Gee and Haw, they sit on their farm equipment, turn some knobs, pull some levers, and feed your families. Then, the modern farmer goes home turns on the cable or blu-ray or computer like the rest of us. The real quality of life difference is that the modern farmer is much more connected to society today due to, better roads, cell phones, wi-fi, broadband, satellite TV, etc. Bottom line is that a farmer's life is still hard, but less hard in many ways, and much more like the rest of us. Information overload or underload is not an issue to a modern farmer any more than to you or I.
And, just 17 years since Marc Andreesen (now a multi-millionaire VC http://blog.pmarca.com/)and NCSA/Mosaic graphical browser brought the WWW to the world. The same 17 time period as the effective life of a patent following a 3 year pendency.
If Tim had patented the Internet, his patent would just now be expiring.
Mike again liar, liar, pants on fire and marginalized.
It's my right to copy as I please.
Not in the USA, it isn't!!
Here, it is your right to get your ass sued and pay lots of damages and perhaps get criminally punished if you copy as you please and a copyright owner or US Attorney decides your mistaken belief and resultant copying is significant enough to make it worth pursuing you. Since 1790 the Constitution has authorized Congress to enact laws granting exclusive rights to authors (and inventors) for limited times to "promote progess" of "the useful arts and sciences". Congress has done so. Therefore it is NOT your right to copy as you please.
Until Tech Dirt intellectually bankrupt copyright thief posters get the requisite number of States to pass a constitutional amendment outlawing copyright (you are SOL on that one)or get Congress to repeal the Copyright Law (then states could just enact their own, and surely would, particularly where studios and publishers are.) your statement is a damn lie, and you know why.
So you dolts are pissing in the wind and it is humorous to see over a hundred posts following Masnick misinformation and also peeing on themselves in this manner.
Mike quotes Sanchez's erroneous statement:
The only--the only--relevant question is whether a marginal restriction on the general ability to use information incentivizes enough additional information production over the long run to justify denying that marginal use to every other human being on the planet, whether for simple consumption or further creation.
and then in dittohead style sycophant language says: "Exactly right."
Actually, exactly wrong, and you know it Mike. Caught you lieing again. You know very well that copyright rarely denies marginal use, it denies non-marginal use. Marginal use is generally not worth pursuing so copyright owners tend to let it go. Non-marginal use, on the other hand tends to catch the attention of copyright owners and get stopped, if done in a jurisdiction like the US where copyrights are widely respected.
Liar, liar, pants on fire, Mike. But then you are insignificant and marginal, so only worth a rare occasional verbal slap.