Eminent Domain Applied to IP Due To State Secrets 312
NormalVisual writes "Wired recently ran a story about a group of inventors that found themselves unable to sue Lucent Technologies for infringement of a patent they held on a novel design for a pipe/cable connector. They had been working with Lucent on an underwater application for this connector, but unfortunately for the inventors, Lucent's application was being developed for an as-yet-unnamed branch of the U.S. government. The government is now claiming a state-secret privilege, and is refusing to let the inventors sue Lucent for patent infringement, citing national security concerns. In the meantime, Lucent continues to directly profit from their invention without paying any royalties or other compensation. The patent in question can be found online. It's doubly a shame because, unlike so many other patents that we've seen here, this one is actually creative and non-obvious." We've touched on this topic before.
Creative and non-obvious??? (Score:1, Informative)
If you ask me, it's another patent that should not have been granted.
By the way, the "Eminent Domain" title is just SO much Slashdot FUD.
Let me explain this... (Score:5, Informative)
Consider: The executive priviledge in question (and the court case cited) gives the government the ability to restrict the release of information deemed important to national security. That's all.
How did Lucent exploit this to their advantage? They promised to pay for the technology, signed contracts and everything. Then they simply didn't pay. Now, it's up to the screwed party in this case, the plaintiff, to sue for recompense. The plaintiff brings suit. And, in the course of the trial, the plaintiff requests discovery from Lucent to verify it's claims and help make it's case.
Uh-oh. Here's where Big Brother steps in. The government says "you can't talk about that" to the courts, and to both parties. Now what is the plaintiff supposed to do? What evidence can he use? There's probably a contract that details specific technology that they now can't disclose. If they blot out the parts that are sensitive, Lucent can use that to claim reasonable doubt. They can't investigate Lucent to find out that they actually took and used said technology, because Lucent can't reveal that information to the court. The plaintiff is completely screwed, against all logic and reason.
I especially love the quote from the Lucent representative: "You can't try this case in your publication". They understand the issues well enough to know how to screw people; and they did it intentionally.
This is becoming more and more common. I have high voltage power lines, 100 ft tall, in my back yard. Yet, I never gave permission to the power company to put them there. I rejected their low offer when they called to try to purchase an easement, and they said "fine". They never filed condemnation proceedings to take the land. They simply built the power lines illegally, over my objections. They can do this because, in Oklahoma, the constitution provides that the maximum damages for them doing so are the same as the cost of the easement. The most it will cost them is what a judge decides the easement is worth. But, now, it's up to me to file suit to get those damages, which means I'll probably just end up with their low offer minus attorney fees.
And they do this as a matter of course, to everyone. It's fascism by definition.
"Takings" require compensation (Score:5, Informative)
Re:state sanctioned theft.. (Score:3, Informative)
It's not eminent domain at all (Score:5, Informative)
They're claiming instead something called the state secrets privilege [wikipedia.org], which has nothing to do with property (intellectual or otherwise) but rather with quashing the lawsuit. Eminent domain has to do with real, not intellectual, property, since it is a "taking", and as is incessantly pointed out on Slashdot you can't "take" intellectual property.
What that big state secret is, of course, I can't say, since most of the filings in the case are (duh) secret.
In other words, the government isn't claiming that it has any rights to the patent; it's just claiming that the guy isn't allowed to sue, because that would violate some big state secret.
So they get to use the patent, with no legal right to it, but what kind of right is it that you can't enforce under the law? No right at all. Sound like a totalitarian regime to you? Gold star!
Agreed, for more than one reason. (Score:3, Informative)
Re:It's not eminent domain without fair compensati (Score:5, Informative)
Perhaps the inventors should talk to someone from the Global Intellectual Property Rights Academy [slashdot.org]?
Crap submission (Score:5, Informative)
This has absolutely nothing to do with eminent domain. It would be better for the inventor if it was eminent domain, becuase under that doctrine he'd have to be paid a fair market value for his property. Under this, a more favored vendor is allowed to steal is property, and the government is taking away his right to defend his property in the name of national security. It has nothign to do with the government taking the property itself.
This is the state secrecy doctrine. It says to right in the friggen linked article, with a highly informative blurb in the third paraqraph:
I refer you to http://en.wikipedia.org/wiki/Eminent_Domain [wikipedia.org] for more information on Emininent Domain and http://en.wikipedia.org/wiki/State_Secrets_Privil
The linked article would have been more informative if they had mentioned "US vs. Reynolds", the 1953 case in which the US Supreme Court which actually established the privilege in the US . In that case, the widows of three crew members of a B-29 sued the US government for information relating to a crash that killed their husbands. The US government claimed that since they were working on a classified project, divulging the accident report would undermine national security.
As it turned out, they lied. There was nothing sensitive at all in the accident report. There was embarassing information about incompetence and negligence in the maintenance of the aircraft. Which goes to show what Ben Franklin said, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." There is nothing more dangerous to liberty than allowing the government to act without accountability, purely on its say so.
Re:Ridiculous. (Score:3, Informative)
Again from TFA, if the only customer for a device is the government, the device is immune from patent infringement litigation. (Congress writes the patent laws, so they can give themselves a break, I guess)
Re:Let me explain this... (Score:1, Informative)
Clearing up the issues (Score:4, Informative)
They have most of their evidence eexcluded for the remainder of their case (trade secret and breach of contract) because it is claimed it endangers national security. It may be false, in which case it is an injustice, or true, in which case disclosure would harm national security - many people can be dead - if we can't intercept when and where Al Qaeda plans to nuke us (look up "Americam Hiroshima"), it could be millions. Since this possibly deals indirectly with tapping undersea fiber cables, that isn't far fetched. I live in Las Vegas, one of the cities Al Qaeda has its eyes on - I believe in freedom - but we need to protect Americans. Again, the gov't can be lying, or telling the truth, I, and you all, don't know which.
A public trial, even with the evidence already made public, could help the enemy piece things together in a coherent whole. Much of intelligence isn't just the pieces of the puzzle, but how they fit. A trial may provide that and make the puzzle "come together" and be much more useful to the enemy.
I'm afraid that even this Slashdot story might help those we don't want helped.
As for the inventors, they have not had the trade secret and breach of contract dismissed. Judges might allow them to recover if they have other evidence and they might be willing to give them leeway because they had evidence they can't use.
As far as I can tell, they are free to license the patent to others and sue them if they infringe. The application must have other uses and it appears they still have full rights in that area. Eminent domain is wrong, they still have their patent - they just have a compulsory license (which most of us like when it comes to music, etc and the public) to the government and their trade secret and breach of contract suits are impeded. Not good, and Lucent should honor contracts (if they are or they aren't I don't know) in any event.
If you wrote software, and one client got to use it without paying you and you had no recourse it would be bad, but if you have full rights in regards to other clients you'd likely be OK.
Why did the inventors only deal with Lucent?
The patented invention wasn't made secret, the patent is still available on the gov't own site!
Re:With drugs, we've already paid for the research (Score:5, Informative)
with the pharmaceutical industry getting a lot of their basic research performed in public institutions with government grants, and then getting to patent the drug, we're the one's getting screwed. Twice!!
Yeap! BMS, Bristol-Myers Squibb [prnewswire.com], using Taxol is an excellent example. The NCI, National Cancer Institute, part of the fed's National Health Institute spent $183 million [cptech.org] doing the research into developing Taxol from the Pacific Yew tree. Yet they practically gave away to BMS, who makes more than a billion dollars a year on the sale of Taxol, the "rights" to use all of the data from the clinical trials. The US tax payer got ripped off!!! And cancer patients who need Taxol are getting ripped off as well.
Falcon