Ordinary Skill In The Art 62
ClarkEvans writes: "Jeffrey D. Ullman, professor at Stanford University and famous contributor to the excellent Dragon Book, writes about software patents in his paper, Ordinary Skill in the Art. He has some very serious analysis here; I hope Congress reads up." It's intended for computer scientists rather than Congress, and it looks like he has some good ideas.
Patent Law (Score:2)
And that's exactly how it should be. When it comes to patent law, each and every technological market needs to be represented by people who know what they're doing. It's beyond me that the government thinks they can possibly make the right decisions on things like software patents, without having qualified personnel in Congress.
This is actually quite fascinating (Score:3)
The one that seems particularly difficult here is the nonobvious part. Mr. Ullman says that "novel" simply means it does not appear in previous literature. But for software to be nonobvious....
It seems that there are so many ways to achieve the same results with software, that it'd be very difficult to come up with something that someone else couldn't figure out to do in a completely different way.
The neat thing about this, though, is that someone who has truly stumbled on something fantasticly useful, unique, and clever is rewarded. RSA for example....
One Click Shopping (Score:1)
Just my being finnicky and maybe a bit old fashioned, but the link for the Dragon Book leads to Amazon.
Unless they've renounced their one-click shopping patent, I'm still boycotting them, and I remember that slashdot encouraged this not too long ago.
For those of you who still feel this way, you might try looking at the Dragon Book [barnesandnoble.com] at Barnes and Noble, who also happen to offer a cheaper price by $7.
-Marcella
Re:Patent Law (Score:2)
Want me to run in 2004, my first year of Congressional eligibility? I'd *love* to go up against the Pharmaceutical Puppetess Melissa Hart (our Congresswoman-Elect, assuming she somehow wins again in 2002).
Perhaps by then, tho, the eCommerce/Patent/Judicial crowds will learn the meanings of "patentable", "prior art", and "fair use."
Thus sprach DrQu+xum.
# grep
Patents (Score:2)
Having just attended a mandatory patent meeting in a fortune 500, (for powertools , not programs) I have to say that patents are a wierd animal.
according to our patent lawyer (we have three) who gave the speech. We should submit EVERY new idea we have to the patent office .. just in case its a 'good one'. .. not a noun. Apparently you can loose your patent rights if something is clasified as a basic object. (for example Scotch Tape ... is appreviated as Scotchtape (especially in the north) to mean clear cello-tape. .. we were corrected to call them Lego building blocks ... and not simply the venacular 'lego's'.
he then went on for another 2 hours about how we lost revenue from the 'snakelight(tm)adjustable flashlight'.
One interesting point is things like the above example: using Snakelight as an adjective
This explains why, growing up in the town where lego's are manufatcured
you can also loose patents if for example, you don't actully USE your patent. Stanly tools (in new britian CT) lost their patent on their black & yellow colour trademark (allowing dewalt to start making handtools) simply becuase they started producing tools that were NOT black & yellow .. but clear , or red .. etc.
all I can say is that if anyone things Objects are confusing .. dont even TALK to a patent lawyer .. my head was spinning for days after that one.
Re:What's the difference? (Score:1)
Seriously though, the patent issue in the US is not easily resolved, as the ones who are abusing the system always seem to have backers, and the ones that they are sueing usually seem to be willing to settle. This just encourages the same behavior. If the patent office/judicial system allowed for more severe penalties for filing and/or sueing over frivilous patents, maybe the situation would correct itself. I just don't see it happening.
Eric Gearman
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Re:What is this, D&D? (Score:1)
Re:One Click Shopping (Score:2)
Well, it would help if I got the correct URL.
Let's try this again:
The Dragon Book [barnesandnoble.com] at Barnes and Noble [bn.com].-Marcella
Good points (Score:1)
His idea of public review might work if it were possible to protect the information contained in it. It could be done in the US but what is to stop someone from implementing someone's soon to be patented idea in another country? I also think that expecting courts to keep up with the state of technology is not a workable solution. The patent office can't do it and they have much more freedom to hire specialized personnel that the court system (not that they take advantage of that freedom).
A solution that wasn't discussed was to make patents a lot less profitable by either shortening the time for which they are valid or by restricting licensing. This would not only help the technology industry but pharmaceuticals as well, an industry where the effects of patent abuse are much more severe. Patents are necessary to encourage research and development, they can't be eliminated entirely, but if the rules can be changed to level the playing field I;m sure corporation would adapt quickly.
Comment removed (Score:3)
Re:This is actually quite fascinating (Score:1)
This article is a great reference for those of us who know enough about software patent law to be pissed, but not enought to know exactly why we're pissed.
I remember thinking how the BountyQuest web site seemed like a good idea. It's obvious now, however, that the problem is in the very structure of the patent system as it applies to software.
If I'm not mistaken, all of the comments I've seen on /. about the "invalidity" of One-Click or any of the other "I can't believe they allowed that patent!" stories that periodically appear here are irrelevant. Someone may have used the technology before, or written software that exploited the algorythim before the patent was granted, but because it didn't appear in "literature" it doesn't invalidate the subsequent patent.
This is a problem. Consider the worst case. There are probably thousands of algorythims and ideas on an average Linux distribution that have been used for years but have never appeared in formal literature. Given the wrong judge what could happen?
Anyway, on an unrelated note, I realize it's easy to spend other people's money, but it would be nice if some rich, self-made software baron were to set up a foundation to defend the small companies and individual programmers from bogus patent infringement suits. If it wasn't easier and cheaper to simply roll over when a lawyer shows up with a baseless patent-infringement suit, there would probably be less bogus patents around. I fear this will be even more important due to the incomming administration in the U.S.. I worry that B.T. (ruling the internet with their hyperlink patent), Microsoft, IBM, and Rambus ;) are going to be the only software companies left in four years.
Re:Patent Law (Score:2)
I don't think that is going to work. (First of all, the lawyers aren't going to go quietly). Are we going to increase tyhe number of people in congress, or do only the the first 535 areas get represented? And if Alaska has elected a complexity-theory guy, does that mean New Jersey can't? Plus, how will the 1 guy who knows all about how many clicks it takes to sell something on the internet convince the tinker, the tailor, the shoemaker, etc...
No, I think the answer is for the patent office to get squared around, congress is beyond hope.
LEGO blocks and patents (Score:5)
Is it possible to think of a truly novel way to fit them together?
I made something never made before!
Well, of course you did. Like the author's example of the programming assignment -- everyone will do it a little differently.
I found new ways to put blocks together!
Like, by gluing the flat sides together. Is that useful? Probably. Our lawyers will have to look into it.
I used a mold and some plastic and invented a new block!
You did? Congratulations! It probably deserves a patent, let's check the literature to be sure. . .
Metaphors R us,
-Omar
Re:This is actually quite fascinating (Score:2)
The problem is less the judge -- being in Linux would almost certainly be enough prior art to get a patent turned over if anyone was willing to go to the cost and expense of doing so -- the problem is getting really clueful patent examiners, ones who will say, "hmmm, this reminds me of how Linux handles <mumblefritz>, I better check that out..."
Re:Patent Law (Score:1)
Look... Quit complaining. When you've bought your own congressperson I'm sure he or she will make qualified decisions that you agree with.
Start saving now and maybe you can afford a 2002 model.
Re: Ordinary Skill In The Art (Score:2)
Congress does not define "ordinary skill in the art", Congress made that a requirement in the statute. Courts and juries decide what this hypothetical person looks like based on testimony from experts like Professor Ullman.
Naturally, part of this conclusion is informed by what they guy in the Patent Office thought "ordinary skill" in his field was. Judges are juries basically only have the opinion one "expert" that isn't being offered in the interests of one side or the other -- the faceless patent examiner who is not present in the court case, but who the jury knows allowed the patent. Naturally, absent a darn good reason, juries figure this guy was probably right. (First juries are instructed that patents are presumed valid unless proven invalid by clear and convincing evidence, second, they know the experts offering opinions are being paid by the party offering the testimony.)
Patents suffer no more from the lack of technical sophisitication than a lot of other areas. Think about the breast implant litigation, or toxic waste litigation or other things. Or for that matter, the trial of someone involved in obscure financial transactions.
He both attacks current patent office practice as being not expert enough, and then attacks the court system as being too expensive and risky. His solution, a public opposition stage in the patent and trademark office would pretty much guarantee that only large corporations get patents. After all, if you are a little guy, and IBM, Motorola, Intel ... all jump in to oppose your patent, do you have THAT much money?
Oh, there are reexamination proccedings as it is. You can send your prior art to the patent office to have the patent reconsidered after it has been issued. The patent office pretty much always decides it was right the first time. How would the pre-issuance opposition process be different except to make it more expensive and uncertain like the court system?
And what's so special about software patents and the businesses that might infringe them that they get a pass on having to be put before twelve ordinary people for a fair trial like everything else in America? Isn't the "uncertainty" point just an oblique attack on the jury trial? How else is a democracy supposed to resolve disputes?
Businesses take risk, deal with uncertainty (including patents), and when they do well, get rich. That's another part of the American way. Why not just let that work?
In defense of drug companies (Score:2)
This sort of rant, wheter it's from the Vice President of the United States, or from an expert in Computer Science, completely ignores the benefits of medical research by private organizations. The R&D that created every new "miracle drug" was funded by the investors and bond holders of private companies. If we remove the profit motives and protections from the pharmaceutical industry, who will invest? Just where do you suppose new drugs will come from? The simple truth is that if pharmaceutical companies' profits are diminished, investors will pump money into other business sectors, and we won't get any Viagras, Claritins or Flo-Nazes.
What's the alternative? Entirely government sponsored health research? Do you suppose that the government would use our tax dollars with anywhere near the efficiency that publicly held corporations would? How would the research priorities be set? Would we postpone research on cures for more widespread ailments so that we could focus on "celebrity diseaeses" whose cures would further someone's political career?
I suggest that people get off the drug companies' backs lest they find themselves lingering under socialized medical research.
Re:Patents (Score:1)
oh .. come to think of it .. there was a lot of talk about that too .. .. after about 10 mins my eye's started to glaze over, so i probally got it all wrong .. whomever though to make a 3 hour meeting on that stuff for EVERY employee .. i dunno :P .. just dont tell anyone here .. or i might have to sit through it again.
I dunno
thanks for the clarification though
Patentable idea's (Score:1)
Most of the patents about software are just "I thought of it first" idea's and not truly novel or nonobvious idea's like for instance the creation of engines or airplanes...
I actually never understood the concept of patents anyway.
Open source as a demonstration of prior art (Score:3)
There have been discussions here on Slashdot before about the obvious idea that open source clearly qualifies as publication of the ideas embodied in it. It is possible that open source software will save the entire software industry from becoming mired in disaster of its own making through its own patents. While I respect intellectual property law protections for those ideas that clearly meet all three criteria, I think we have all seen examples of many that don't. As an example, would Emacs' info mode qualify as prior art in defense against BT's hyperlink patent? I honestly don't know enough of the details of that patent to say, nor am I a patent attorney.
It is clear however that patents are being granted that are falling short of the obviousness test. Unfortunately, when viewed as individual cases, it is difficult to determine where to draw the line. However, if more source code were published, there would be no question that many patent applications failed the novelty test. The bottom line is that if an open source project uses ideas from a patent in code that was released before the patent application, then either it doesn't infringe because the patent wasn't novel, or it doesn't infringe because it doesn't fall within the scope of the patent.
Re:This is actually quite fascinating (Score:1)
I'm not a lawyer (wow, what a surprise, he sounded so knowledgable ;) but isn't part of the problem the fact that only some types of prior art are valid.
If I understood the article, going up to a judge and saying, "look, lines 12038 through 14238 of my source code were written before this patent was applied for, it does the same as the patent, it was written prior to the patent, and I shouldn't have to pay license fees."
The opposing lawyer (1) responds, "Source code isn't real "literature" therefore its not prior art."
Opposing lawyer (2) responds, "You used a AVL tree and my client uses a linked-list. It's not prior art."
Opposing lawyer (3) reponds, "We have $234,923,482,348,234 in our "war chest" to defend our patent and you have $34.20."
Opposing lawyer (4) reponds, "Judge, we would like to file a counter-suit against the plaintif since he is obviously not a lawyer and doesn't know how to get out of this."
Opposing lawyer (5) reponds, "If the glove doesn't fit, you must acquit."
Opposing lawyer (6) reponds, "Our client, MegaTeleSoftBusinessMart Inc. was raised in a broken home and deserves to keep this patent."
Opposing lawyer (7) responds, "Judge, when we were at Yale Law School together didn't we have a great time?"
Opposing lawyer (8) responds, "Ha Ha!"
Re:What is this, D&D? (Score:1)
My pager went off...
Looks like my server rolled a 1...
(checks the critical fumble chart)
Uh oh, the server rolled an AbEnd. Now I have to go to the office and try my healing proficiency check.
Yes, I'm a geek... For those of you who don't RPG, too bad I'm not going to explain it!
Take care of the nonobvious part! (Score:1)
We should put every type of algorithm we can think of on a web site. That way when some bozo wants to patent spellchecking or bubble sort we can just point to this site and say it was in the public domain all the time.
Plus, it would provide a good resource for all programmers. Got a question ("Hmmm...how do you code an optimized sequential reverse bubble sort")? Just look it up!
Later...
You are incorrect by a factor of about 10 (Score:1)
Ok, perhaps to be completely accurate it might be one or two hundred years later, but *everything* taught in algebra 2 now was taught in the equivalent of algebra 2 during the so called "dark ages" in those non Christian, non European cultures that valued learning something other than the Bible.
The concept of the multi variable spreadsheet would have been considered obvious and old to Americas founding fathers, who would have learned the idea and practice of speculative accounting from their English and Dutch merchant ancestors of two centuries before.
"Skill of art" is being obfuscated for a reason (Score:1)
Until "skill of art" is properly defined the following will continue:
1. corporations will try to increase "intelectual property"
2. corporations will use "intelectual property" as a barrier to entry against smaller competitors
3. small companies and individuals will pay for an ever increasing burden of unnecessary lawyers
So expect the corporations and lobbyists to try to obfuscate the definition of "skill of art" for some time to come.
Hopefully some governments will understand points 2 and 3 as hurting economy and promote free competition. Void software patents or really strict patent application checks are two ways.
Stupid patents are creating an ECONOMY OF LEECHES.
Patents vs. Trademarks (Score:1)
How can you have a patent on a trademark?
Re:Patent requirements (Score:2)
You will note that his expertise in the field of patents is that of an expert witness in the *trial defense* of patents, and most of the article relates to the fact, which he explictly states as part of the problem, that a *jury* in a specific trial uses a very different approach to determine the validity of a patent than an examiner in the patent office.
From this point of view the validty of a patent, and whatever tests it must meet, are *solely* determined by the jury, who, by law, are *required* not to have any expert knowledge in the field.
Re:In defense of drug companies (Score:2)
Government and academic labs at least are able to do 'pure' research which may not have a financially viable outcome.
"Intellectual Property" (Score:2)
Re:Take care of the nonobvious part! (Score:1)
Re:In defense of drug companies (Score:3)
And the basic reasearch that this applied research was based upon was most likely funded by grants from the NSF, NIH or any of several other TLAs in the US government. And if it wasn't funded by the government, lots of non-profit organizations (the American Heart Association, American Lung Association, American Cancer Society, etc.) fork over grants to university rearchers for doing work on the organizations organ/disease of choice. I certainly don't think that pharm companies should be replaced by the Feds, but it would be nice if people would stop acting like they worked in a vacuum and generated their profits purely de novo, instead of using public domain data to base their IP on.
Do you suppose that the government would use our tax dollars with anywhere near the efficiency that publicly held corporations would? How would the research priorities be set? Would we postpone research on cures for more widespread ailments so that we could focus on "celebrity diseaeses" whose cures would further someone's political career?
It's funny that you offer this up as a pro-pharm arguement, after your sample 'wonder drugs' - Claritin, Flonase and Viagra - cure such life-threatening issues as hay fever and impotence, not cancer or heart disease. I have prescriptions for Claritin and Flonase (and Aerobid-M and Albuterol and Accolate), and my quality of life has improved since I started taking them. But I'd rather have more and better anti-cancer meds for my mom and grandparents so they'd still have the uteruses, kidney and section of colon that they were born with and I'd live with my runny nose and sinus headaches, okay?
Of course, if I needed that Viagra prescription...
Re:LEGO blocks and patents (Score:2)
And under every single LEGO(tm) brick piece, ever since I was a very little kid, I saw 'PAT PEND' or a patent number. [As I write this, I grabbed a piece off the Droid Developers Kit, and read a number 3037-022-6.]
The LEGO patents include the exact measurements of their bricks. No competitor can make truly LEGO-compatible bricks. Some may claim such, but try putting the bricks together: the tiny hairline difference in bump-to-bump distance means that they won't go together for more than about three or five bumps in a row.
LEGOs were how I learned what a patent WAS. I'm all for LEGO as a company, but even they have their patents and strictly enforce them.
Re:You are incorrect by a factor of about 10 (Score:1)
Yes, but this is on a computer which is totally different than on paper. Our founding father didn't have computers, even a judge knows that. Jeez...
Actually, I just had an Idea... What if you put a spreadsheet on the Internet? What a novel, non-obvious, and useful idea! I'm going to be rich!
Re:what if (Score:1)
That would bring an immediate end to almost all corporate funding of research and development. No new drugs, forget about Moore's Law, etc.
Re:In defense of drug companies (Score:3)
Basic research in no way gives you a drug that can be admistered to the general population with any degree of assurance of safety or effectiveness. All it does is increase the knowledge of the mechanisms in place. Commercialization of that knowledge to the point where you can take it in the form of a pill is a 10-15 years long process that may well cost a BILLION dollars. No private organization would undertake this effort without assurance of being able to recoup their investment.
The work of the NIH is of course crucial to the process, because it provides the seed. However it is not sufficient. If you look at the real numbers the percentage of the funds that the NIH contributes to the overall process of developing a new drug is no more than 1%.
Re:Patent requirements (Score:1)
What law requires juries not to have or use expert knowledge. I imagine that one side or the other will probably do their best to get any experts off of the panel, but there is no requirement that an expert be prohibited from serving on a jury.
Isaac
Ullman may be an expert in CS and patent trials. . (Score:3)
He is a bit weak on business.
Let's take his example of Amazon. His notion that selling books on the internet ought to be protectable as IP is flawed from the business, legal, and patent perspective. This is a field where the free market rules.
Let's say I get the idea of selling dictionaries from a boat. I believe this would be a novel business model. Should I be allowed exlusive legal rights to this idea?
No. The idea of selling from boat is not novel. The extentsion to selling only dictionaries is in no way inovative, even IF it is unique. Anybody could have tried it, and if succesful there is no way to restrict anyone else from taking up my * business model.*
Selling books on the internet is no more a novel and protectable idea than selling anything else on the internet, and selling ANYTHING in a public venue so obvious to anyone who has ever sold anything.
Should the first person to sell books from a fixed location of business, i.e. a storefront, have been granted exclusive rights to do so? The idea is logically, and legally, ubsurd.
How about selling books from a pushcart, or a bicycle, or an airplane, or the inside of a trenchcoat, etc., etc., etc.?
ALL such solutions are obvious and available to anyone. It may take GUTS to be the first to try any of these out and see if they work, but none of them are in any way novel in the terms of the *idea.*
Mr. Ullman seems to wish to EXPAND the idea of patents to cover IDEAS, when they are specifically intended to cover *devices.* It is unfortunate that the idea of "device" has been expanded to include mathmatical algorithms. This is the REAL problem with the system as it stands. FURTHER expanding the system into the realm of purely abstract concepts would be a horrible mistake.
This is the realm of the free market, where the * customer* decides what is valid and what isn't.
If selling dictionaries from a boat proves to be a failure * because of lack of sufficient customer support to provide profit* than that business model will be dropped. Perhaps pushcarts will work.
If it works, it will be copied, and SHOULD be. Without having to pay a "licence fee" to the first person to have tried it out.
What would the world be like now if Sears and Roebuck had been able to obtain a patent on 'remote delvery of goods'?
Now returning specifically to Amazon for a moment, what they have REALLY attempted to do is patent the IDEA of saying "OK" to a customer who says, " Give me one of those and two of those and put it on my account." As we all know this idea is patently obvious and has been used in EVERY forum available for selling since the begining of each of those mediums. It fits Ullman's catagory of those things that are SO obvious they arn't recorded in the literature, in this case because its actually implimentation * predates * literature itself. It has been common usage known to preschool children for * millenia.*
Ullman wants to see a system where single solution patent cannot cover the CLASS of solutions to the problem. He ALSO wants to see a system whereby the QUALITY of the solution determines patentability. This the solution of an academic thinking in the terms of *academic* validity. It is poor BUSINESS solution, and patents are business problem.
In fact, the first solution, making only unique solutions patentable not the class, makes the second redundant * because the solutions will be subject to the powers of the free market* rather than a doctoral of journal review board.
In this sense the market *IS* the review board.
So, let us say that Amazon can only patent their specific SOLUTION to the obvious problem of one click shopping. Ok, someone comes up with a DIFFERENT solution that may, in fact, be academically INFERIOR to Amazon's, but. . . they can patent it, use it, licence it, and the MARKET will decide whether Amazon's solution is superior enough to pay a licence fee to use it, pay a lessor licence fee to the holder of the rights to the "inferior" technology that accomplishes the same thing, or to simply spend the time, effort and money to develop their OWN novel solution to the problem.
I think with a bit of thought you will see that his two ideas are in a BUSINESS sense actually mutually incompatible, and incompatable with the very philosophical basis of patents themselves, which is to promote the MULTIPLICITY of ideas available for use to the public and to allow the consumer the choice of which idea is most suitable. The lack of a licence fee, in the MARKET, is, in fact, one of the parameters of suitability!
Anyone in the open source community ought to understand that last point.
The granting of class protection to single solution to an obvious problem would be equivilant to saying that the patent on the combine harvester granted IP rights to ALL methods of harvesting, patently, if you'll forgive the pun, ridiculous. Yet this is exactly what juries are doing for algorithms.
The Wright Bros. were not granted a patent on the airplane. That was deemed both obvious, and with a wealth of prior art. What they WERE granted a patent on was three axis control * by means of warping the control surfaces.*
THAT was novel, useful, and non obvious.
So what happened? Because the patent did not cover the CLASS of possible control methods inovation was actually STIMULATED by the patent as people sought a way to accomplish control by means NOT coverd by the patent, and thus the superior aileron was born. THIS is the way patents were supposed to work.
If wing warping were in fact superior it would have won in the market * anyway * because people would have prefered to use the superior system even though it meant paying a licence fee. The aileron was both superior, and fee free, making it the clear winner * in the market.* It would have worked just as well the other way around. If the aileron had a licence fee attached and wing warping didn't the aileron would STILL have prevailed. Can you imagine a P-51 Mustang using wing warping?
Again, anyone in the open source community should understand this idea and see the clear parallels.
A pity patent clerks, and most especially juries, do not.
Re:"Intellectual Property" (Score:2)
To clarify "IP" versus "patent"...
From what I understand, intellectual property is usually undisclosed information, although I suppose it's a general enough term that it might include patented ideas, too; I'm not 100% certain.
Patents, on the other hand, are very specifically disclosed to the public. In return for the disclosure, the patent holder receives certain rights in terms of its use, and is entitled to monetary rewards when others use it.
The big difference, thus, is this: if an undisclosed and unpatented idea gets out, there's nothing a company can do to rein it back in. The best they will likely be able to do is sue the discloser (as long as he/she had signed an NDA, of course). If another company tries to use a patented idea without permission, the patent holder can, in fact, legally stop them.
I'm not taking a stand here, just clarifying the terms.
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Re:This is actually quite fascinating (Score:1)
Re:In defense of drug companies (Score:1)
If the feds and non-profits account for such a small percent of the cost of the research, and if private industry is so much more efficient, why don't the pharms just doi their own basic research? Wouldn't they come out ahead?
Re:what if (Score:1)
The only difference would be that they would no longer *invest* in IP. But if it is for the good of the industry and their business, they would still invest in the advancement of technology, and would probably still have R&D departments but won't make things that public.
But I say this is still okay because: 1) the guys who invest in IP are usually the guys who are filthy rich such as the large corporations - startups never benefit from the "corporately fundedness", and 2) even if R&D is kept more secret, there are enough people out there and enough open research, that useful things would most likely be invented in more places than one, and there would also be no need for judging "novelty" or "prior art".
And finally, if patents are done away with all together, then things would most likely be done differently than today, so it isn't too accurate to assume we only have a fixed set of cards to deal with.
Maybe I'm a bit anarchistic... (Score:2)
You can't pattent ideas, since when is anone allowed to control my thoughts and ideas? Never. Imagine if Copernicus had a patent on his idea that the world was round...no one else could talk about it until his patent expired.
The Role of the Jury (Score:1)
Re:Patent requirements (Score:1)
Re:Patent requirements (Score:3)
However, we operate, with the exception of Lousiana, under the British common law system. This means that *case law,* i.e. precedent, has much of the force of actual CODE, even though so actual code does not, in fact, exist.
If you have been paying any attention to our congress critters, and the popular media reporting their inane spoutings lately, you'll have run across complaints about " judicial activism,* i.e. the 'problem' of judges writing law from the bench and usurping the power of the legislative branch of government.
The fact is, that the very basis of the common law system and philosophy is that * judges are empowered to do this.* Yes, they 'interpret' the law, but in any specific case their interpretation IS the law, unless, and until, overturned by a higher court.
If the ruling is subsequently ratfied by * the consensus of other judges* ruling likewise it, in fact, is law in practice, without the existence of code.
ANY lawyer ought to know this, it is a rookie mistake to go into court and cite LAW, and get shot down by a more experienced opponant who cites CASE.
So, to answer your question I must cite not only federal code, and code from each of the 50 states, but I must also argue and cite PRECEDENT in both federal courts and the courts of all 50 states.
You ask me to do an awful lot. I'm afraid I can't comply in a Slashdot post. It would take me at least a small book to do so, and many very LARGE books have been written on the subject and can be found in any law school library if you would like to do some research on your own. Start your search under the subject heading " Jury Selection."
Now that fact of the matter is that there is relatively little CODE about the selection and conduct of juries, but there is MUCH case going back centuries.
I'll point out a glaring example though, in Colorado knowledge of the *rights of a juror* is grounds for both prejudicial dismissal of a juror during selection, and declaration of a mistrial at any subsequent point.
So I suppose you are correct is some technical sense here. There is no law that says he CAN'T serve on a jury. The law says the *trial is invalid* if he serves on a jury.
A valid legal point which could actually have impact in actual case, but IN PRACTICE it has the *effect* of making it illegal for someone with the 'specialized knowledge' of the rights of a juror to sit on a jury!
The BULK of American law is of this sort, that without either specific code OR precedent, but with the practical EFFECT of law.
In most states the combined power of code, precedent and *practical* effect make it illegal for a person of specialized knowledge in a case to sit on a jury.
Last I knew all states that didn't have actual code forbiding the sitting of such a person on a jury had code and/or precedent requiring the juror to be instructed that he could not *use* his speciallized knowledge in reaching his decision, and the use of such knowlegde was grounds for dismisal and/or misstrial.
Anything which is grounds for a mistrial is, IN PRACTICE, illegal. Lawyers will actually use those words. " We can't do that. It's illegal. They'll get a mistrial."
Again, TECHNICALLY you are perhaps correct. Grounds for a mistrial is not EXACTLY the same thing as its being illegal.
ANYTHING where a judge can say " you can't do that" is effectively law in his court. Any such statement that the Supremes would validate * IS LAW!*
The correct answer to the law professors question, " What is the law in this case?" is NOT a citation of code, but " Whatever the judge and/or jury say it is."
My favorite classic example of this is the jury ruling, " Not quilty your Honor, but he has to give back the mule he stole from the plaintif."
And THAT was * the LAW!* Code be damned.
And THAT was the way the founding fathers INTENDED the law to work.
Actually... (Score:2)
I wouldn't say public sector research would necessarily be _more_ efficient and effective than private sector, but I think it is incredibly stupid to count on the private sector for that. All private sector means in practice is that millions die, but we have Viagra- and Prozac. Maybe I'd rather they never developed Viagra and Prozac, but did manage to put some effort towards the most deadly diseases of the world.
twist W's arm (Score:1)
The compromise inherent in this spin might be to also have to allow Microsoft to be saved from the law - but then Microsoft's projections are down today while Red Hat, Cisco, 3com and Adobe are up - so the market alone may be sufficient to deal Redmond its deserts....
Ullman is off-base on patents (Score:3)
Ullman writes: "I'd love to see a requirement for the demonstration, along with every patent granted, of the superiority of the method."
Why? If the new method is inferior, that's the applicant's problem. No public purpose would be served by such a restriction. It may take years, and further development, to find out that a new idea is a good one. Xerography is a classic example. Chester Carlson's original 1939 process produced very fuzzy images, and it was many years before xerography beat photography for copying. Inventions relate to commercializable concepts. You don't know whether a concept is commercially superior until you turn it into a product and sell it. That's not a test the patent office can, or should, apply.
Ullman also writes: "An idea is nonobvious if it would not be discovered by one of ``ordinary skill in the art'' when the idea was needed." And one proves non-obviousness to the patent office by showing that the idea was needed but someone else didn't discover it. It's less about what someone might think of than what other people in the field actually did think of. If you're working in an area where the problem is recognized but the available solutions are bad, and you have a better solution, then that new solution is non-obvious. Much is obvious in hindsight. But that's not how patents are granted. Nor should they be.
Obvious patents are a problem only in newly opened areas where there is little prior art. They aren't currently a problem in, for example, gears and linkages, which was a hot area in patents around 1890. Each new technology goes through a period when there are patents on the basic ideas. Automobiles, telephones, electric lights, and radio all went through this period, accompanied by litigation battles of much greater significance than anything we've seen in the computer software area. Eventually, the patents time out, and everything in the new field is in the public domain. That's the way it's supposed to work.
I could say more, but that deals with Ullman's main arguments.
Re:"Intellectual Property" (Score:2)
Thanks, but no thanks. If you don't want to contribute your knowledge to the common pool then keep it to yourself. Somebody else will think of the same thing and contribute it to society. They'll get the fame, you won't. There is no shortage of people willing to do this. Fame is bankable, very simple equation.
The only people arguing in favor of software patents now are monopolists, lawyers, and a few of us who are misty-eyed enough to swallow the lone-inventor-makes-it-big story.
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good read (Score:2)
The patent office really needs to go to a more 'open patent system' . Some way of involving the actual experts, just like the lawyers that are going for the patens do. There should be people that these patent examiners can contact so that they can ask questions. People OUTSIDE the USPTO or any patent office. People at colleges and such..
I don't want a lot, I just want it all!
Flame away, I have a hose!
Re:"Intellectual Property" (Score:1)
Re:LEGO blocks and patents (Score:2)
Re:Ullman is off-base on patents (Score:2)
I don't see how that proves non-obviousness. That just proves that they got there first.
One click shopping is something that can be implemented by a junior-level programmer in less than a week. To me that makes it obvious. There's a lot wrong with that patent.
What is really needed is a better test of obviousness. If the average programmer can look at your program and quickly reverse engineer it, its not obvious. One-click is obvious by this test. If its something really useful, such as an algorithm for compression or encryption, but could not easily be reverse engineered, thereby requiring publication of the algorithm in order to disseminate it - that is non-obvious and thus would qualify for a patent.
I watch the sea.
I saw it on TV.
Re:"Intellectual Property" (Score:3)
Then you understand nothing. Go to google and do a search for "intellectual property faq." Read
it. Don't post again until you have.
Once you've done that, go find the guy who moderated you up as "INSIGHTFUL" and force him to eat a hard copy of the FAQ.
Re:what if (Score:1)
The problem with that theory is that patent law was developed explicitly to solve problems in 18th century England caused by companies keeping the results of their work secret. We have already seen the problems, and cured them. No reason to go back down that road.
Re:what if (Score:1)
Exactly my point. It is no longer 18th century England. Now there are computers, software, the internet, and a incomparable amount of creative people trying to solve problems.
The entire environment is different. We are not longer playing with the same cards we had back then. And the same it will be for tomorrow. We need to stop basing laws on outdated paradigms, or at least restrict those laws to those paradigms.
Re:"Intellectual Property" (Score:2)
Then you understand nothing. Go to google and do a search for "intellectual property faq." Read it. Don't post again until you have.
Okay, fair enough - I didn't realize it included trademarks and copyrights (well, copyrights... I would guess that all intellectual property would be copyrighted to the holder).
I think you're being unduly harsh, though. I was replying to someone making (what I thought was) a one-sided and unfair remark about IP, whereas the discussion should be more specifically about patents. My main point was that they're not the same thing.
In my own defence, I never said I was an authority, and on a discussion forum like this, I think that should not be assumed in the first place. I also did a bit of hedging with my language.
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Demonstrating non-obviousness (Score:2)
You can demonstrate non-obviousness in a patent application by showing that lots of people beat their head against the wall trying to solve the problem and their solutions still suck.
As for one-click shopping, before Amazon, there was no one-click shopping, and after Amazon, there were lots of people wanting to do one-click shopping. That shows non-obviousness.
What People Don't Realize (Score:1)
A one-click patent, for example. Sure they didn't expect it to stand up in court, though it appears that it has so far (correct me if I'm wrong). I'm sure that surprises them quite a bit. But the point of it was not so that they could win law suits. They are trying to cost their competitors just enough in court fees that they're pulled back a step, allowing someone else (not necessarily the one pressing charges) to gain a few steps. It's like a race, in which the teams are allowed to help and hinder eachother in order to hinder other teams. Much the same as Bush giving Nader money to pull a few votes away from Gore.
Aciel
aciel@speakeasy.net
Re:Patents (Score:1)
I think I'm beginning to see why you're so confused...
Re:Take care of the nonobvious part! (Score:2)
- There is little code available
- What's in there is hard to find
To be useful in this respect, it needs to have many more entries, and the categorization needs to be improved (and inappropriate entries purged, etcetera). Sort of like the patent database, actuallyThat said, it's a cool idea and I always check the snippet library when I notice I'm reinventing a wheel.
Re:Ullman may be an expert in CS and patent trials (Score:2)