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from the winner-will-win-wonga-in-the-form-of-won dept.
A Reuters story continues with news of the on-going litigation between Apple and Samsung:
Apple and Samsung return to federal court on Tuesday for opening statements in their latest patent battle, with the iPhone maker expected to present more detailed evidence in its attempt to win a U.S. ban on sales of several Samsung smartphones.
Apple Inc and Samsung Electronics Co Ltd have been litigating around the world for nearly three years. Jurors awarded the iPhone maker about $930 million after a 2012 trial in San Jose, California, but Apple failed to persuade U.S. District Judge Lucy Koh to issue a permanent injunction against the sale of Samsung phones.A sales ban would be a far more serious threat to Samsung, which earned $7.7 billion in the quarter that ended in December. Samsung's mobile division, which includes smartphones, generated operating profit of 5.47 trillion won ($5.1 billion).
(Score: 2) by Foobar Bazbot on Wednesday April 02 2014, @08:37PM
I think inability to keep basic terminology about a topic straight suggests you may not have given it much thought.
That's one justification. (It's wrong, BTW.)
And that's a completely different (and correct) justification. That you can recite one after the other, seemingly without noticing the inherent contradiction, is more evidence that you haven't thought this through as much as you think. Not to get all "wake up, sheeple", but this is what I was talking about re: shills. I don't think you're a shill, and didn't mean to suggest that; rather I suspect shills are spreading misinformation and using people like you as amplifiers. I think you're letting others do your thinking for you, and regurgitating it as fact without sufficiently thinking about or understanding it.
To explain the contradiction: To claim that the patent system exists "to protect ... inventors from ... interests that would take their hard work from them" (no matter how large or small either party might be) is to claim that by inventing something, an inventor deserves an inherent right to forbid others from using their idea; that this national or global monopoly is their due for the "hard work" of invention.* If that is the case, and patent law exists to protect this right of inventors, then we have no business altering it to optimize total technology created; to shorten the term, or restrict what patents will be issued is a failure to protect some inventors' rights, while to lengthen the term, or broaden the granting conditions is to infringe future inventors' rights to build inventions upon these inventions, and receive the profits from these enhancements.
*It may be interesting to consider a second inventor who invests precisely the same hard work, while ignorant that his counterpart elsewhere has already done the same, and explain why for the same work, the first deserves a monopoly and whatever profit he can extract from it, but the other deserves a fine for constructing his prototype in ignorance of the patent. But my present point is to show the contradiction, not to show that the former is wrong -- once you see the contradiction, a simple reading of the constitution will make it clear which one is right.
Yes, being the little guy sucks. But since the exact same costs apply under first-to-file or first-to-invent, that's hardly a valid criticism of first-to-file.
There's also the record-keeping burden to prove date-of-invention, which arguably is more onerous for the little guy, but you need that under the first-to-invent system for defense even if you don't plan to patent (as reactively filing your own patent is a good way to force an immediate showdown with somebody who patents your stuff), and you're talking about the burden associated with filing for a patent, so it doesn't really count.
This really has a little vagueness due to the sloppiness of English, and could cover several scenarios, depending whether the small inventor plans to eventually file for a patent, and on whether "didn't invent" means MegaCorp is stealing it, or merely means MegaCorp independently discovered it, but was not first to do so.
(As I said before, if MegaCorp independently invents it about the same time, this almost always means neither should have the patent -- the most likely explanation for such a coincidence of timing is that the "invention" suddenly became obvious, either because of newly available tech that at least two (and likely more, who didn't bother filing) "inventors" used in an obvious way, or because of a newly posed problem, which two (likely more) "inventors" solved in the obvious way. So for that case, I consider "neither gets the patent" the best outcome, and both cases where a patent issues to one party to be nearly equally bad outcomes.)
So of the four cases, first-to-file doesn't change one, makes two of them better, and makes one worse. If that one was the one you're concerned with, well, I guess we just disagree, because I can't get excited about which party gets a patent that shouldn't be issued at all.
What nonsense is this? Prior art has everything to do with this, since a patent is not valid if the claimed invention is shown in the prior art (making it non-novel), or if the prior art shows all elements in separate combinations such that a person of reasonable skill in the art would combine them (making it obvious). Further, your use of the word "steal" suggests you're discussing a case where MegaCorp copied the invention rather than independently inventing it, and in that case, the patent's also not valid, because it contains the claim (under penalty of perjury that MegaCorp did invent it. This could in theory, but not in practice (again, the responsible division was shut down), see MegaCorp convicted of perjury. If a patent is issued in such a case, it's because of problems with the USPTO that have nothing to do with first-to-file/first-to-invent.
That is all those things, but it's nothing to do with first-to-file. If you've started selling it, it's already published, and nobody can legally patent it. That our patent-examination process is a joke, and that rectifying it in court is both insanely costly and an uphill battle* even if you can afford it, are both horrible tragedies, but they have nothing to do with first-to-file.
*The USPTO has practically given up and said, rubberstamp everything and let the courts sort it out. Judges largely refuse to see this, and persist in treating the existence of a patent as strong evidence that the patented invention is validly patentable (novel, nonobvious, etc.), because why would the USPTO issue it if not? Not to cry conspiracy, but it stretches credibility to ascribe the resulting combination of easy to get bad patents issued, and hard to get them overturned, as due to incompetence.
If time-to-market is everything, and you can't afford to patent it, be first-to-market and don't patent it. If you don't file for a patent, first-to-file changes nothing, because it only affects the resolution of two people patenting the same invention. Publish it (which includes selling products embodying the invention).
Being faster in general obviously has little to do with first-to-file/first-to-invent; the absence of battles to prove who invented it when makes certain cases move faster under first-to-file, but those are relatively rare.
Again, that requirement is there, in theory, under first-to-file, just as it was there, in theory, under first-to-invent. It is not practically enforced, just as it has not been enforced for many years under first-to-invent.
You are under a delusion. The current system is incredibly unfair, no argument from me. The delusion is the belief that first-to-file is the root of the problem, when it has nothing to do with almost every aspect of it. And seeing how widespread this delusion still is, years later, I can't help suspecting certain interests are paying shills to propagate that delusion, so people like you who are (rightly) angry about the joke our patent system is will strike out against first-to-file, instead of pushing for reform to the real problems.
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(Score: 2) by edIII on Wednesday April 02 2014, @09:45PM
You are being more than a little bit insulting. It's not terminology, but jargon instead.
The difference between first-to-file and file-first is purely aesthetic (feel free to tear that apart). Both terms impart the information or concepts I was attempting to convey, while the former is a correct term for that industry or group.
You then conflate an issue about correct terminology (which is a weak position given that I still conveyed the proper concept) with the assertion that I have not thought it through. Even though I have considered issues regarding IP and the Public Domain for decades.
Again with the insults. It's not a different justification at all, and the statements do not contradict each other. Once again, through your misreading of what I said you assume a position that I must simply be ignorant.
No, that's something you incorrectly inferred. To a horrible extent if I may so as well.
I specifically mentioned Public Domain when speaking about the fundamental reason for the existence of IP in the first place. Not once did I explicitly mention the truly abhorrent idea that a person could control knowledge in some way as an inherent right.
For me to speak about the Public Domain and how IP is designed to foster innovation and transfer said innovation to the Public Domain creates a mind boggling situation where you can infer that I think the right to control it is inherent.
We grant a set of well defined temporary legal entitlements with the sole purpose of fostering innovation. The fact that the legal entitlements allow you to control (forbid seems like hyperbole) who can utilize your technology within reason. The overall purpose of that is money which brings us right back to incentives to keep the Public Domain flush with new technologies and ideas.
I stopped reading right there. Obviously I am not an English major. However, you have harped on me now several times and made assumptions about whether I "think for myself" solely based on my command of the English language even though I properly conveyed my ideas nonetheless.
If you wish to disagree with me or attack my ideas, feel free to do so. I consider that part and parcel of intelligent discourse.
However, resorting to attacking my language skills and continuing to insult me is not intelligent discourse and it does not make your positions correct, well thought out, or inherently better conveyed to those reading your posts.
You only add to that with your rather puzzling misreading of my initial statements to construct a position that I have wholly and consistently refuted my entire life.
So if the only way to have intelligent discourse with you is to prepare a scientific dissertation each time that has been vetted, spell checked, reviewed, passed through several fires, forgotten in a hole in the backyard, and then sent to you later... I respectfully decline your invitation.
Have a gud day, I have doody in my pants and must gonow
(Score: 2) by Foobar Bazbot on Wednesday April 02 2014, @11:37PM
To bystanders: Since edIII can't be bothered to clarify it, and is no longer interested in this conversation, I'd welcome anyone who's better than I at comprehending his post to explain what possible meaning " the original purpose of the USPTO was to protect small time inventors from large monied interests that would take their hard work from them." can have which does not imply the small time inventors' hard work has invested them with some inherent right? Whether this conversation goes any farther or not, I'd much rather understand another's opinion than not. (Which is why you'll never see me post "I quit reading there" -- to me, if it's worth a response at all. it's worth reading the whole thing).
edIII:
Did you notice where you misunderstood me as suggesting you were a paid shill, and my response was not to flutter about in horror at the magnitude of your misunderstanding, but to explain in detail what I did mean? That's what normal people do when they're interested in intelligent discourse.
Not explicitly, but it was implicit in what I understood of your first justification. If I misunderstood it, an explanation would be welcome.
Yes, it's a mind-boggling contradiction -- yet I'm still not hearing an explanation of what you are "protecting" that comes from "hard work", if it's not an inherent right.
Well, I can't tell what it seems like to you, but "forbid" isn't hyperbole, because not only is that sometimes exactly how patents are employed (deny it to your competition so you have a competitive advantage), but the alternative, licensing it to others, is based on the idea that anyone who doesn't receive permission (whether in exchange for royalties, for permission to use some other patent, or any other arrangement) is forbidden from using it (with a few exceptions) -- while other regimes that grant control without the absolute power to forbid are possible (e.g. mandatory licensing), the US system does give a patent holder the right to refuse any licensing arrangement at any cost (again with a few exceptions).
But either way, "forbid" or "control", this is correct. But as you just said, "we grant a set of ... entitlements with the sole purpose of fostering innovation." -- they have nothing to do with hard work, nor with "protecting" any entity from any other entity.
If you can't or won't understand the difference between "the sloppiness of English" (suggesting that there is a problem with the language) and "the sloppiness of your English" (suggesting there's a problem with your language skills), it's no wonder we're having trouble communicating.
(See how, while criticizing you for misunderstanding, I was able to squeeze in an explanation of what I did mean? I know it's a waste of time, considering you've already written this discussion off, but habits are like that...)
From the guy who criticized my correct use of forbid as seeming like hyperbole, that's a bit rich.