Easy Fix For Software Patents Found In US Patent Act 172
WebMink writes "What if there was an easy, inexpensive way to bring software patents under control, that did not involve Congress, which applied retrospectively to all patents and which was already part of the U.S. Patent Act? Stanford law professor Mark Lemley thinks he's found it. He asserts that the current runaway destruction being caused by software patents is just like previous problems with U.S. patent law, and that Congress included language in the Patent Act of 1952 that can be invoked over software patents just like it fixed the earlier problems. All it will take is a future defendant in a patent trial using his read of a crucial section of the Patent Act in their defense to establish case law. Can it really be that easy?"
Quick, lets patent the fix and license it. (Score:5, Funny)
It does not matter (Score:5, Insightful)
The letter of the law doesn't matter. The spirit of the law doesn't matter. The constitution of the USA doesn't matter.
Do you have money? Power? That matters. And as long as the powers to be want software patents, that's what you'll have, the way it is right now.
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What's puzzling to me is why Samsung chose a jury trial. Why would they do that, since juries are famously dumb.
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Overestimating the intelligence of the public, something Apple, and most other American companies learned not to do a very long time ago.
Seriously. (Score:2)
All it has to do is win in court with an argument that by all appearances to this layperson has failed already many times in patent cases.
"All it has to do to win is not lose yet again" seems tautological to me. But I'm not a lawyer.
I'd love it if the lawyers here responded that this was in fact under the subtleties of the existing law an entirely new tack that is likely to be a winner in an actual case and establish the given precedent.
I would love it even more if it actually happened. But this (again:) la
Re:It does not matter (Score:5, Interesting)
This is not insightful. It's ignorant of history, truth, and completely hyperbolic.
The truth is that the US judicial system has been *the* floodgate that opens to change from status quo rather consistently. Civil rights, women's rights, rights to contraception and inter-racial marriage. The three branches of our government all have their flaws, but the one that has consistently had less to do with bribes and pressure has always been the judicial.
Defeatism is surrender to the cause you hate. Apathy is just short of volunteering for that cause you hate.
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This is not insightful. It's ignorant of history, truth, and completely hyperbolic.
DIPYO? It might not be insightful, but the only way you could say I'm "ignorant of truth" is if you were sleeping under a rock for the last three decades.
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Re:It does not matter (Score:4, Insightful)
....And eventually the fuedal system failed.
"I'm not sure about that," said the Serf.
Re:It does not matter (Score:5, Insightful)
Funny thing about the feudal system... From the historical perspective, rather than the feudal system failing, it has been implementations of the feudal system failing. In the words of The Who, "Meet the new Boss, same as the old Boss." One dynasty falls, another takes it's place. Even if the new dynasty begins with non-feudal hopes and aspirations, it generally falls into the feudal mold within a few generations. Then the new dynasty itself becomes the old dynasty, that falls to a newer dynasty.
It's really a failing of traditional human nature - we all want to do well by our family - or tribe. That is well and good, until it becomes barriers to the success of others. Like it or not, my family or tribe may not be the best-suited for a given role or position, but if they have that station due to dynastic or influences of oligopoly when others are more capable, then society suffers and becomes weaker.
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The medieval world failed mainly because of the black death. So many peasants died that the lords, relatively safe in their relatively clean manors, had no-one to bring food and taxes to. As the peasantry migrated away from villages that had been decimated by plague, the entire feudal "I own your ass" system could no longer be enforced.
The ancient English system failed mainly because the Normans came in an kicked arse. And the Roman system failed when the barbarian hordes came and kicked arse (and, of cours
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> The interesting thing is that practically no-one has ever overthrown a bad system themselves, its always
> left to external factors to make the change
Still, what it means is that that feudal system is not capable of meeting its challenges. Perhaps with more capable people at the helm, not necessarily those selected by heredity, they would have handled things better.
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it did last quite a long time, but the black death was quite a catastrophic event - they reckon 50% of the European population copped it; or 25% of *world population*
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I'm suggesting that most human societies unfortunately tend toward "lack of meritocracy". I also suggest that most feudal systems have a head-start on that path, given that they frequently/usually have hereditary leadership. I certainly don't deny that the first few generations of such leadership would also pass a merit test - but just give it a few more generations.
In the science fiction world, I thought "Azad" was interesting, from Iain Bank's "Player of Games". It had many despotic aspects to it, but
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There are many different dimensions for viewing society. (or other things) Meritocracy is one of them. When feudalism comes up, it's a rather obvious one.
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I didn't say feudalism would be completely non-meritocratic. You don't have to go all the way to impair the system. You just have to have a good sprinkling of people who wouldn't be there except by birth.
Plus it's not really fair comparing him to serfs, since part of the equation is proper opportunity when young. Of course the feudal lord will be a better military commander - having at least received some schooling and training. But had there been widespread education and better nutrition, who knows wha
Re:It does not matter (Score:5, Insightful)
There's a big difference. Almost all of the "serfs" today (at least the ones living in America) have shelter, food, clothing, running water, heat, electricity, lighting, TV sets, refrigeration, cell phones, cheap and fast transportation, medical services, borders secure from invasion, and on a level far surpassing the living standards of even the kings of the middle ages.
Sure there's inequity. The balance of wealth distribution is today skewed beyond understanding. I don't have a four-Lamborghini garage, or a stable of race horses; I have a ten-year-old Ford truck and a couple of dogs. But when you start worrying about how bad we have it in comparison to the 1%, or whine about money spent on taxes, try to also compare yourself to the 99% from 150 or more years ago. We live better today than every single human ever prior to 1850.
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We live better today than every single human ever prior to 1850.
Ah, so the crumbs have gotten bigger, and we're supposed to not notice that all we're getting are crumbs?
Re:It does not matter (Score:4, Insightful)
What do you call it when the crumbs are a five course feast that can't be consumed? When the crumbs you throw out would be fought over by those with less means?
My father grew up with two pairs of pants. His mother had to wash them in a creek, and only had time to wash once a week. If you fell down in the mud and got dirty, you had to wear them the rest of the week. This was in south west Virginia.
I've got clothes that I've forgotten about. I've got pants I don't wear because I simply don't like them. I throw things in the washing machine and close the door to the room dedicated to it at my convenience.
Are the crumbs so bad? If you think so, you need to get over yourself.
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There were Southern plantation slaves who had more than your father - just not their freedom. Were they better off?
The original affluent society & the future (Score:3)
http://www.eco-action.org/dt/affluent.html [eco-action.org]
"Above all. what about the world today? One-third to one-half of humanity are said to go to bed hungry every night. In the Old Stone Age the fraction must have been much smaller. This is the era of hunger unprecedented. Now, in the time of the greatest technical power, is starvation an [institution]. Reverse another venerable formula: the amount of hunger increases relatively and absolutely with the evolution of culture. This paradox is my whole point. Hunters and g
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But a feudal system is not defined by levels of inequality. If it was then slavery would be a feudal system.
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True, we do not have a feudal system. But the system we do have is no better than feudalism.
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Yes it is.
You can check out any time you like. Many have. In a feudal system, you were tied to the land. You couldn't leave.
I have a friend,
We used to be real close.
He couldn't go on
With the American way.
Sold his house
Bought a ticket to the west coast.
Now he gives a stand-up routine in LA.
Retrospectively? (Score:4, Insightful)
Pretty sure submitter meant retroactively.
Re:Retrospectively? (Score:5, Funny)
I'm sure that, in retrospect, he did.
The Professor's Article is as Inaccessible as Law (Score:2, Interesting)
It's relieving to hear somebody may have found an existing law which would end the patent debacle, but the problem remains that the law is not clear to the average person. Even this paper hoping to clarify what the law says just looks like 57 pages of MSWord to me, and I feel at the whim of the high powered attourneys and politically charged judges to interpret it.
Herman Cain may not have been a quality pick for president, but I'm beginning to think his mantra of "simplify the law so the public understands
This cant work either (Score:4, Funny)
He said:
>> If courts would faithfully apply the 1952 Act, limiting those claims to the actual algorithms the patentees disclosed and their equivalents,
Clearly the authors were thinking non-obvious stuff with complexity such as a Fourier Transform would be patentable but how about just parts of it? What is the smallest/simplest functional thing that could constitute an algorithm?
If this gets enacted as case law the obvious next step is that Apple will patent the 'for' loop and Microsoft will licence the 'if' statement.
Re:smallest/simplest functional thing (Score:2)
It can get pretty small.
It just needs to be somewhere few people have looked at. You can define an algorithm for any two numerical values added together. We keep thrashing into the Obvious problem because nobody/one lonely guy in the Midwest USA/ thinks of stuff like adding the Weight Watcher Point Count of your fridge contents with the number of times you ordered takeout to get your average ranking of a recreational gamer/nerd/techie.
See how fun it gets? It's not obvious - but once you hear it you can't "u
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This is a problem that is unique to software. We wouldn’t permit in any other area of technology the sorts of claims that appear in thousands of different software patents. Pharmaceutical inventors don’t claim “an arrangement of atoms that cures cancer,” asserting their patent against any chemical, whatever its form, that achieves that purpose. Indeed, the whole idea seems ludicrous. Pharmaceutical patent owners invent a drug, and it is the drug that they are entitled to patent. But in software, as we will see, claims of just that form are everywhere.
And I think he makes a good point. The problem being that we can already copyright the code. So, if patents can be applied at all then they must be applied to the purpose of the code.
If this gets enacted as case law the obvious next step is that Apple will patent the 'for' loop and Microsoft will licence the 'if' statement.
I don't believe that you could patent a 'for' loop or 'if' statement since they would have to be considered prior art in the public domain. But, it does seam that according to this guy you could patent c# because it is a specific way to achieve the function of a 'binary file derived from a human reada
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Pharmaceutical inventors don’t claim “an arrangement of atoms that cures cancer,”
Excuse me for a moment, need to fill out a patent application form...
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If this gets enacted as case law the obvious next step is that Apple will patent the 'for' loop and Microsoft will licence the 'if' statement.
Wouldn't work, for at least two reasons.
First, the patent would have to cover use of an algorithm to accomplish a specific task, and patents that try to cover basic operations like "iteration" would be as successful as patents on "moving objects from one place to another" -- they would be too broad to be accepted (by courts, at least -- the PTO seems to accept everything).
Second, prior art for such basic algorithms as conditional branching is both plentiful and as old as you like -- at least back to the
Hmmm.... (Score:2)
Sounds like a good idea ... (Score:5, Insightful)
I do tend to agree that software patents have become about patenting the idea of implementing something and has become divorced from the specific implementation.
You can patent how you implemented something, but not the notion of doing it in the first place.
The infamous "One-click" patent, which as far as I'm concerned amounts to "a method and system for doing one of the operations of a system is capable of doing, but with a single button click by using already configured information" only they've added "when buying stuff".
Because there's a lot of things which people have implemented behind a single button which can easily gather several bits of data, assemble them, and take an action. In fact, it's damned near the Von Neumann model of "input, processing, and output".
We've had buttons before. We've bought stuff before. We've even bought stuff online before and have transaction processing which handles it. We've even allowed you to log into a system and be recognized as a distinct user for which we have information stored.
But as soon as a web-site presents you with a single button next to an item, and clicking it causes it to use the information already known about you (shipping address, credit card info) to process a transaction and initiate shipping ... well, clearly we have performed magic and nobody else could have possibly come up with this idea on their own.
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I'm still unsure about this one and would love to know what is allowed and what isn't.
Can the patent be circumvented by including an additional click to confirm the order? Isn't that what B&N did?
The real problem... (Score:5, Insightful)
While the US legal system is such that entities can drag even blatantly bogus lawsuits out for years, so winning against individuals and smaller businesses just by attrition of legal costs, fine-tweaking the definition of bogusness wont have even the slightest effect.
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Re:The real problem... (Score:5, Interesting)
While the US legal system is such that entities can drag even blatantly bogus lawsuits out for years, so winning against individuals and smaller businesses just by attrition of legal costs, fine-tweaking the definition of bogusness wont have even the slightest effect.
I disagree.
In particular, if the courts were to adopt the proposed interpretation, the effect on patent trolls would be devastating. Defendants would be able to make a motion for summary dismissal on the grounds that the patent is a functional patent which under the 112(f) rule must be interpreted in reference to the details of the inventor's implementation, and since the inventor has no implementation there is no possibility of determining the boundaries of the patent and therefore the question is moot. And the motion would succeed. This would reduce such trials from years to weeks, because there would be no justification for a lengthy discover phase.
Even in non-troll cases, it would eliminate the need for most of the lengthy discovery that goes on now, because the defendant could easily argue that all of its internal documentation is simply irrelevant, since the case can be decided by examining the software implementations and determining if they're sufficiently similar. This would still result in trials dominated by detailed arguments from technical experts, so they'd still be expensive, but the cost would be a tiny fraction of what it is now, and it would take far, far less time without all of the extensive (and expensive) discovery.
Perhaps even better, it would encourage inventors (or their lawyers) to write patents which are very specific and narrow, specifically in order to avoid the sorts of broad functional claims which would invoke the author's interpretation of 112(f). Long-term, that would probably be the most important and most beneficial change to the status quo.
Would it be a panacea? Clearly not. But it would make the situation vastly better than it is now -- except from the perspective of patent plaintiffs pushing very broad patents.
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Not so sure (Score:3)
Here is the crucial quote from the abstract:
I'm not sure this would fix the problem. Sometimes, the fact that the algorithm is patented is the problem. Think about it: if a patent didn't cover the idea of generating a sorted sequence from a potentially unsorted one, but only covered quicksort and its equivalents, would that still be a problem? I'd say it's better than covering any implementation of any sorting algorithm, but I'm not sure the resulting situation is really where we want to be.
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Here is the crucial quote from the abstract:
I'm not sure this would fix the problem. Sometimes, the fact that the algorithm is patented is the problem.
The MP3 patents come to mind there. And, related, video compression patents.
And, in a way, this is exactly where I think a software patent is defendable. They did not just patent the idea of "compressing digital sound" but a very specific way of doing this. This company spent a lot of effort in developing this method of compression, and then patented it. Sounds pretty much like a "machine" to me.
Those patents are also not exactly a problem. As in: everyone can do mp3 decompression, you just may have to pay
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I think the important part is this bit that explains it best:
When Congress rewrote the Patent Act in 1952, it adopted a compromise position: patentees could write their claim language in functional terms, but when they did so the patent would not cover the goal itself, but only the particular means of implementing that goal
so I can patent the concept of clicking once, but if someone else comes along and implements their own way of buying shit when someone clicks a button once, Amazon cannot own them - as Amazon's patent cannot cover the goal (of 1-click buying), nor cover all implementations. So they could still sue you if you stole their code and implemented it exactly as they did, but not if you did it a slightly different way - eg, if Amazon's done it in Python w
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Exactly. The "real problem" with software patents is that they exist at all. There is no problem in the real world to which software patents are the solution. Patents are supposed to encourage innovation, and in software they simply aren't needed. Innovation in software was going along at a tremendous pace before software patents came into existence, it would continue going along at a tremendous pace without them, and their only effect on innovation is to slow it down.
Just for clarity. (Score:5, Informative)
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
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There are so many aspects of the patent act that are presently ignored. Along with the watering down of the "obviousness" clause, ignoring this clause is one of the reasons overly broad 'bad' patents get through in the first place.
This clause basically says that you can claim a desired end result in your patent, but if that function is not described in full necessary detail to implement it, then the claim is limited in scope by pre-existing design documentation, specifications or reference implementation.
It
A Nanotechnology Analogy (Score:2)
If an inventor claimed to own the function of nanoparticles altering the abosorption of wavelengths of light to increase the efficiency of a solar cell, then he could keep everyone else from using nano-particles to do that regardless of material or structure.
Hence, I can see the logic of the 1952 patent law structure in that you can patent a specific new structure leading to a good end result, but you can't patent "the release of radiation" from a light bulb type structure.
Tightening up enablement and written description (Score:5, Informative)
What this boils down to is tightening up the enablement and written description requirements of 112 of the Patent Act, specifically with regard to the way functional claims are judged. This is not a particularly new idea, and quite a few people (including those that could be called 'pro-patent') have been saying for years that this is a reasonable way to address problems with lots of different kinds of patents, including software patents, that doesn't involve technology-specific changes to the law. I certainly have mentioned it on Slashdot many times (e.g. this comment from 2010 [slashdot.org]).
One issue is that the use of functional claiming has been in pretty steep decline [patentlyo.com] for a few decades now. So I'm not sure just how many software patents this approach will catch, but it could be that software patents are one of the last holdouts for functional claiming. Alternatively, the courts could begin to interpret software patents as using functional claiming even when they don't use the traditional "means-for" construction. This is already done in some cases (i.e. "means for" is not a necessary magic phrase), but it could become more common.
The bottom line is that this is a call to restrict patenting to only that which the inventor actually discovered and actually described in such "full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains to make and use the same." In other words, to enforce the statute as written.
"algorithms and equivalents thereof" (Score:2)
Any time I see a phrase like this in a legal setting, I cringe.
I realize that "formal proof" in law means "something that convinces a judge/jury", but there is a formal meaning in computer science for equivalence of algorithms. You can't prove two arbitrary algorithms equivalent, because that would enable a solution to the Halting Problem.
You can sometimes prove that two particular algorithms are functionally identical (e.g. different methods of sorting), but if their implementations differ (bubble/merge/h
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That phrase is not interpreted as "algorithms or an equivalent algorithm based on algorithmic reduction", but as "algorithms or other specified constructions that describe the process". It is merely referring in general to mathematical algorithms, while also allowing other formal method/process descriptions that don't quite meet the legal definition of "algorithm".
Since when .. (Score:2)
Re:Betteridge's Law (Score:5, Insightful)
Or, to elaborate a little further: this isn't a puzzle, an Indiana Jones movie, or even science, where there's an Aha! moment, and suddenly a century of mystery is conclusively revealed. It's the law, open to interpretation by at least 3 people, if not 15 or even 200. There is no final truth in the law, there's only your own power to convince someone else that your words carry more weight. If what Lemley says is true, and even if he does win it, I can also guarantee you that the law will be changed to fix whatever loop hole he found.
I have zero faith that he can convince a judge or a jury that he's right, and I have even less faith that congress critters won't change the law to fix his interpretation.
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Re:Betteridge's Law (Score:5, Informative)
Re:Betteridge's Law (Score:5, Insightful)
Practicing law is fun BECAUSE it is complicated and too big a field of knowledge for any one person to know everything - you learn over time, get better, find the tools that work for you and find new ways to apply them. But sometimes, you just need to sit down and plow through a 50 page statute to find the tool you need. We've got a half-dozen competing content filtering software tools that are supposed to make the job easier, but there's just no replacement for starting with the written law.
Anyway, I'm not saying this guy has found a "we win" button, but its good to see the academics turning their attention back to solving problems that actually happen in court
Re:Betteridge's Law (Score:4, Interesting)
Finding a case that leads to a statute is a bit different than simply interpreting a very well known law. But I grant your point that the body of law is so vast that it is not possible for someone to know everything, which makes it entirely possible to have an Aha moment. I just don't see this particular interpretation to be novel. It reminds me more of Eben Moglen's approach to fixing copyright by arguing that the current copyright system provides for essentially infinite copyright, which is unconstitutional. Pretty much everyone knew that that was the case in practicality, but he still got roundly shot down before the Supreme Court.
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Err, make that Lawrence Lessig. That's what I get for not actually reading the Google search results.
Good point (Score:3)
Im sure judges are getting tired of all these patent suits and would happily hang their hat on whatever point of law that would produce the most productive and expeditious result consistent with due process. If a court can narrow the application of a law in a way that reduces their workload, you bet they will.
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Im sure judges are getting tired of all these patent suits...
Replace "patent suits" with "briefcases full of cash." Nope, I don't think they're getting tired, yet...! :p
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It's good to see that an actual attorney is weighing in on this. It provides, at least for me, a better perspective on where the profession stands.
If ever my life, my family, or my livelihood is on the line in a courtroom; I will try to remember that my attorney is "having fun".
Re:Betteridge's Law (Score:4, Insightful)
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That's a false dichotomy. I'm happy that you enjoy and are passionate about your chosen profession. I would be happier if the root of that passion came from helping people from getting screwed over by a broken, ludicrously complicated system that's often devoid of common sense. I know you weren't saying this, but it came off like "Isn't it amazing? Due to a technicality and an out-of-date precedent set 60 years ago, you'll be spending the next five years in prison despite your innocence. What a knee-slapper
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For me, its a passion.
The complexity of engineering made it a passion for Rube Goldberg, too, and this is what people are responding to here. To the average person's ears you're saying, "The [needless, gratuitous, egregious] complexity of the law makes it fun."
A lot of us suspect the law could be a good deal simpler (certainly true) but for the fact that the people who work in the feild actually enjoy the complexity. There's nothing wrong with enjoying stuff that's as complicated as it needs to be, but I know as a scientist an
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Anyway, I'm not saying this guy has found a "we win" button, but its good to see the academics turning their attention back to solving problems that actually happen in court /today/.
And that's really what i was celebrating about my field: the law is complicated and broad (to meet the vast diversity of issues it must meet and overcome) but there are times when the law cones into focus, gives you an answer, and you resolve the dispute in an instant. That's what tfa is trying to do with patent law. That is a good thing.
Re:Betteridge's Law (Score:5, Insightful)
I can't tell you how sad this makes me. Law's only purpose is to serve the people. If the people can't understand it then we're fucked.
Re:Betteridge's Law (Score:5, Insightful)
> Practicing law is fun BECAUSE it is
> complicated and too big a field of
> knowledge for any one person to
> know everything...
Yes, FUN! And it's not like anything important is at stake. Not like anyone's life ever got ruined because of cases like you described. No one ever went to jail, lost their job, their business, their family, all their savings, etc., because no one playing was aware of the law that could have freed them. FUN, I tell you!
And it's not like the deck is stacked against the little guy in the first place, or that big companies with big war chests win solely because they have more money to throw at a problem. Or win by attrition. Or that they bought unjust laws in the first place. Yes, it's just LOADS and LOADS of FUN!
Re:Betteridge's Law (Score:4, Insightful)
Just because a job is important doesn't mean that those who do it aren't allowed to enjoy themselves.
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Just because a job is important doesn't mean that those who do it aren't allowed to enjoy themselves.
On the other hand, the pursuit of justice is supposedly the whole purpose, is it not?
A lawyer that persists in a matter in spite of knowing there is a specific statute or case law that unhinges his case is as guilty of obstruction of justice as someone lying to the police.
Pfffft, what am I saying. Pursuit of justice!! What a joke.
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They're not mutually exclusive. Just because something is important and consequential does not mean it can't also be fun.
Re:Betteridge's Law (Score:5, Insightful)
> Practicing law is fun BECAUSE it is > complicated and too big a field of > knowledge for any one person to > know everything...
Yes, FUN! And it's not like anything important is at stake. Not like anyone's life ever got ruined because of cases like you described. No one ever went to jail, lost their job, their business, their family, all their savings, etc., because no one playing was aware of the law that could have freed them. FUN, I tell you!
And it's not like the deck is stacked against the little guy in the first place, or that big companies with big war chests win solely because they have more money to throw at a problem. Or win by attrition. Or that they bought unjust laws in the first place. Yes, it's just LOADS and LOADS of FUN!
Yes, that's why people who have *careers* choose the field that they do. Because they enjoy doing the serious business of whatever field that happens to be. For me, that's IT. I have *fun* doing IT because it allows me to explore new technologies and creatively design and implement solutions for real problems and situations.
When the GP said that this guy is having fun, I knew immediately what he (she?) was talking about. I work harder and better because I have *fun* doing what I'm paid to do. Is it all fun? No. If it was all fun and games, they wouldn't call it a job -- and you wouldn't get paid for it either.
Is it possible that you folks who don't understand what it means to have a fulfilling and yes, fun, career? That would really be sad.
I'd much rather have a lawyer who enjoys his work and is energized to go the extra mile because it gives them pleasure (read: has fun) to do the best job they can.
A successful career is about much more than money. If you can't understand how that's supposed to work, I pity you.
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I know of cases in Germany where - besides the usual "this law firm consulted us on writing the law", meaning "they wrote it entirely" - employees from law firms (acting for corporations) were simply put off-duty and temporarily hired by the government... Guess who's song they sung.
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This is something about law I don't understand, which is how the hierarchy is determined. When a new law is in conflict with an old law, which one takes precedence? Sometimes the new law will specifically address the old one, but with so many out there it must be easy to miss some (like this one). Was there a newer law dismissing this 1952 law? Here it seems like modern practice is in conflict with old law, but that still seems to win out as often as not.
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New law takes precedence.
However, any case law or ruling by any two bit judge in any podunk jurisdiction trumps the legislature every time.
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However, any case law or ruling by any two bit judge in any podunk jurisdiction trumps the legislature every time.
Not every court decision automatically becomes case law. Courts also aren't compelled to abide by decisions in a different jurisdiction -- for example, it's entirely possible for the First Circuit court to make one decision, while the Third Circuit could have a near identical case later and reach the opposite decision. For examples of this look at case law around the country on filming police officers on duty -- the law really depends not only on what state you live in, but what judicial circuit -- some hav
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That you can find exceptions to my rule merely proves the rule.
All too common, some obscure court case takes away what the legislature clearly mandated. Yet the law sits on the books like a La Brea Tar Pit, waiting to trap the innocent. I've even seen cases where executive branch agencies refuse to honor a public records law until there was a court decision affirming it, EVEN where no such cases were even pending. They simply said "If you don't have a citation we aren't going to honor your request".
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It isn't a matter of finding exceptions -- it's part of the very definition of case law. The examples were merely provided as further evidence.
http://en.wikipedia.org/wiki/Precedent [wikipedia.org]
Case law is the set of existing rulings which made new interpretations of law and, therefore, can be cited as precedent. In most countries, including most European countries, the term is applied to any set of rulings on law which is guided by previous rulings, for example, previous decisions of a government agency. These interpretations are distinguished from statutory law which are the statutes and codes enacted by legislative bodies, and regulatory law which are regulations established by executive branch agencies. Trials and hearings that do not result in written decisions of a court of record do not create precedent for future court decisions.[3][4] In some countries, such as the USA, the term is exclusively used for decisions from bodies discharging judicial functions, such as selected appellate courts and courts of first instance.
(emphasis is, of course, my own)
Note that this does not include the question of jurisdiction, but it is my understanding that this too is an official part of the legal system.
Re:Judges (Score:5, Informative)
I don't think you understand courts and judges. Judges aren't sheriffs. They don't enforce the law. They're more like referees in that they make sure both sides play fair in the court of law. It's up to the lawyers to present and support their case, a judge simple decides who made their case. If a lawyer chooses the wrong cases from previous trials to support his argument (essentially, he fails to support his argument), then he loses - more specifically, his client loses.
People give lawyers and judges a hard time, but they're the one preserving our liberties. We don't give them enough credit. The people who should be blamed for our problems are the idiots who write the laws. Lately that's been private interests and lobbyists and not our representatives.
Re: (Score:2)
THIS
Even if a judge knows a better argument a lawyer could be making he cannot step in and help. It's up to the lawyers to present their case as best they can.
Re:Judges (Score:5, Informative)
THIS
Even if a judge knows a better argument a lawyer could be making he cannot step in and help. It's up to the lawyers to present their case as best they can.
Well not exactly.
The higher courts often reach to statutes and case law that was never mentioned by either side during their arguments.
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People give lawyers and judges a hard time, but they're the one preserving our liberties. We don't give them enough credit.
Because, as they say, a town that is too small to support a lawyer can always support two.
Once someone asked John Adams (a lawyer and president) why lawyers have such a bad reputation. He said, "Oh, because they deserve it!"
Re: (Score:3, Funny)
Re: (Score:2, Informative)
His flaw is the assumption that software which is nothing more than math falls in the realm patents. It doesn't. Any Darwinian monkey would know this.
No, his awareness is that, however silly it may be, the courts have to this point declined to declare math implemented in a software algorithm as unpatentable. Given that reality, he outlines a possible approach to mitigating the resulting damage.
Your assumption is that common sense matter in a court of law. It does not.
Re: (Score:2)
This is one of the most important things one can understand about the law system. My father started to study law and attended law school, something to occupy himself with in his older years. He regularly blew my mind by telling me about court decisions that not only bypassed common sense, but also morality, and kept going into the realm of truly messed up.
The court room has nothing to do with the real world, real experiences, common
Re: (Score:2, Insightful)
Software is Algorithms. Algorithms are methods of achieving a goal. Patents are for novel non-obvious devices or methods.
The claim that software shouldn't be patentable because "it's just math" isn't very strong. By a similar argument all patents could be invalidated because physics is just math and machines are simply applying physical algorithms. Furthermore the "physical things are different from virtual things" meme is going to hold society back in the long run so we may as well start getting rid of it
Re:He is wrong. (Score:4, Informative)
Re: (Score:2)
Software patents are like patenting the plans to make a house. Anyone who makes a house (even using alternative plans that make something like a house) would be in violation of said patent.
Re:He is wrong. (Score:4, Insightful)
Except physics isn't math. We can model physics with mathematics, but that doesn't mean they are literally the same thing.
Conversely, algorithms *ARE* math. This is entirely provable (a good text on the theoretical foundations of computer science might even describe such a proof), but probably not readily comprehensible to people who do not have a very thorough understanding of mathematics and mathematical proofs (which is, I'm afraid to say, most people... including even a lot of computer professionals).
Re: (Score:2)
Except physics isn't math. We can model physics with mathematics, but that doesn't mean they are literally the same thing.
Now you are being too literal.
Algorithms cannot be implemented without physics. I dont think that anyone is seriously suggesting that the movement of baryons and leptons (classical machines) is any more or less special than the movement of just leptons (electronics and digital machines.)
The confusion arises because the modern algorithm is implemented on top of so many layers of abstraction, and many of the arguments on both sides rely on making the distinction between those layers, just as you inadvert
Re: (Score:2)
But try actually doing anything with an algorithm or maths equation. You can't unless you implement it.
Software is suppose to do something - to fill some needs or solve some problem.You must take your algorithms and build them in such a way that they run on certain hardware and interact with certain interfaces and I/O devices.
A sort or search algorithm is fine, but to really be useful (sellable) software it has to interact with some form of data storage and probably interface with other software.
Now, I'm Br
Re: (Score:2)
Wait? Aren't methods no longer patentable? Well, business method patents anyway. But a method, a way of doing something, should be equally disallowed. And in the case of software, it's still a method... a way of doing something... as directed by a set of instructions readable by a computer/processor device.
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You know, I've worked in the software industry for a long time.
As much as what computers do is expressible in math and formal logic, the actual act of doing most forms of writing of software (unless it's strictly doing math) is actually nothing at all like math in my mind.
Sure, it's logic and problem solving. But breaking the problem up into manageable chunks
Re: (Score:3)
At any rate, you're wrong. While some functions of software are functionally mathematical/algorithmic in nature (sorting, searching, recursion, iteration, encryption, compression, etc.) most software developers would be hard pressed to describe or express their work as a whole in mathematical terms. Requirements definition, human factors / usability, prototyping, supported interfaces, etc. are approached from a form and function perspective, not a mathematical pers
Re: (Score:2)
the unfittest monkey