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Comment: Re:slight exaggeration (Score 3, Interesting) 126

by Grond (#46573243) Attached to: Adam Carolla Joins Fight Against Podcast Patent Troll

It's even more exaggerated than that. So-called patent trolls are not generally interested in shutting down infringers (unless they have an exclusive license with someone else, which I don't think Personal Audio does). They want infringers to stay in business so they can get paid licensing fees. Since they want to maximize their revenue, they don't even want the license to be so burdensome that infringers simply close up shop rather than pay. What's more, the normal standard for patent damages is a reasonable royalty, so in most cases the patentee can't even ask for (much less receive) enough damages to shut down infringers.

Comment: Re:You should have to defend patents, or lose them (Score 5, Informative) 126

by Grond (#46573205) Attached to: Adam Carolla Joins Fight Against Podcast Patent Troll

The law already recognizes this. First, damages for patent infringement can only go back six years. Second, the standard for issuing an injunction takes into consideration how long a patentee sat on its rights and the extent to which the public has become dependent upon the wide availability of the invention. Third, there is an equitable doctrine called laches that can prevent a claim from being made after a long time, sort of like a flexible, implicit statute of limitations.

Comment: Re:DOS Patent Trolls? (Score 1) 143

by Grond (#46049577) Attached to: US Supreme Court: Patent Holders Must Prove Infringment

One of the requirements for asking for a declaratory judgement is that you have to either have been sued or have a reasonable fear of being sued by the patent-holder.

That's not the standard for declaratory judgment jurisdiction in patent cases and hasn't been since the 2007 MedImmune case, in which the Supreme Court rejected the Federal Circuit's "reasonable apprehension of suit" test. The MedImmune standard is "whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." MedImmune v. Genentech, 549 U.S. 118, 127 (2007) (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)).

Comment: Re:Difficulty in proving prior art (Score 1) 124

by Grond (#44073361) Attached to: Patent Infringement Suit Includes Linking URLs In an Email

you may want to look at NCSA Mosaic

The patent specifically discusses Mosaic as it existed at the time, as well as Netscape, Cello, and Lynx. It claims that none of them were capable of accomplishing the claimed invention, and neither were any then-existing email programs. Say what you will about Intellectual Ventures, but the people behind it aren't stupid. I don't think they would sue a company the size of Google (the owners of Motorola Mobility) without making sure the patent is pretty solid.

Comment: No biotech patent thickets (Score 1) 228

by Grond (#43448421) Attached to: Will the Supreme Court End Human Gene Patents?

"Those patents have created "patent thickets" that make it difficult for scientists to do genetic research and commercialize their results. "

Except that empirical research shows that gene patents have not created thickets or impeded genetic research or the commercialization of that research. See John P. Walsh, Charlene Cho, and Wesley M. Cohen, Patents, Material Transfers and Access to Research Inputs in Biomedical Research , Final Report to the National Academy of Sciences’ Committee Intellectual Property Rights in Genomic and Protein-Related Inventions (2005) ("our results suggest that commercial activity is widespread among academic researchers. However, patenting does not seem to limit research activity significantly, particularly among those doing basic research.")

Comment: Re:The purpose of a gene is a discovery (Score 3, Informative) 228

by Grond (#43448399) Attached to: Will the Supreme Court End Human Gene Patents?

Clearly finding out the purpose of a gene will always be a discovery and not an invention. Discoveries are not patentable.

"The term “invention” means invention or discovery." 35 U.S.C. 100(a). You can argue that this is not what the law should be, but this has been the law in the United States since at least 1952.

Comment: Re:Antitrust (Score 1) 125

by Grond (#43055699) Attached to: How Competing Companies Are Jointly Building WebKit

No. Being a monopoly is perfectly legal, abusing the power is not. They are not abusing their power, and they are not even close to being a monopoly.

There is much more to antitrust law than monopolies. For example, there are "contracts, combinations..., or conspiracies in restraint of trade or commerce" in violation of the Sherman Act. I did not suggest that WebKit was a monopoly. I suggested that competitors (such as Google and Apple) were colluding to dominate the HTML rendering engine market. That kind of concerted anticompetitive action is precisely what the Sherman Act is aimed at preventing.

I am not the first person to suggest that collaboration between competitors via open source projects can raise antitrust concerns. See, e.g., Stephen M. Maurer, The Penguin and the Cartel: Rethinking Antitrust and Innovation Policy for the Age of Commercial Open Source .

Basically, you have no idea what you are talking about and just throw around words that make you sound clever.

I am an attorney. You may want to rethink that accusation.

Comment: Re:Companies can work together just fine... (Score 1) 125

by Grond (#43055369) Attached to: How Competing Companies Are Jointly Building WebKit

Sounds like an engineering-led decision to me.

Engineering-led, sure, but that wasn't the claim I was responding to. The claim was "Companies can work together just fine... ...just as long as you keep managers, marketeers, sales people and HR out of it." Management was clearly involved.

Comment: Re:Companies can work together just fine... (Score 4, Informative) 125

by Grond (#43055353) Attached to: How Competing Companies Are Jointly Building WebKit

Google did this first, they helped Firefox to really take off

No, Apple announced Safari in January of 2003, years before Google began seriously funding Mozilla through search referral kickbacks and hiring a few engineers to work part-time on Mozilla projects. Work on WebKit started within Apple even further back, in mid-2001.

Comment: Antitrust (Score 0) 125

by Grond (#43055257) Attached to: How Competing Companies Are Jointly Building WebKit

When Microsoft dominated the browser market by abusing its market power in the operating system market, that was an antitrust problem. Should we not be concerned when a group of competitors collude to dominate the HTML rendering engine market? It's a different kind of market than the browser market, but it is still a market, and a dominant player will cause problems for both competitors and consumers. For example, even though the WebKit browsers are generally free, WebKit's dominance is steadily leading to a lack of choice and a security monoculture. Witness the recent FillDisk exploit, which only affects WebKit browsers.

This is an example of how open source can allow competitors to collaborate in ways that might ordinarily raise more antitrust scrutiny. Here, several companies for whom an HTML engine is an input have collaborated to reduce the cost of that input. In doing so they have effectively pushed a competitor (Opera) out of the HTML engine market. Firefox and IE's usage share have also steadily been falling for years in favor of WebKit browsers. Will we wait until WebKit has a stranglehold on the market before taking corrective action, like we did with IE?

Comment: Re:Companies can work together just fine... (Score 4, Insightful) 125

by Grond (#43055125) Attached to: How Competing Companies Are Jointly Building WebKit

You don't think management was involved Apple's decision to use KHTML as the basis for Safari rather than Gecko (the Mozilla engine)? Or the decision to use an open source engine in the first place rather than creating their own proprietary engine? You don't think sales and marketing were involved in the decision to feature the open source nature of the engine when Safari was first announced ("Safari’s features include ... the industry’s best rendering engine based on KHTML, from KDE’s Konqueror open source project, to which Apple has made significant enhancements that will be contributed back to the open source community."). You don't think HR was involved in recruiting software engineers with experience working with open source projects?

The same is true of every other company that has used WebKit. Companies that base products on open source projects are not self-governing programmer utopias.

Comment: Almost a complete non-issue in practice (Score 2) 29

by Grond (#43021139) Attached to: FOSS Communities Key To Managing Patent Risk

While for-profit companies that use and develop free and open source software have been sued for patent infringement, "FOSS communities" essentially never have been. The author is correct that "FOSS communities have fretted over this risk for years," but that's just it: they have fretted and nothing has come of it.

"Patent trolls" want licensing revenue. You can't squeeze blood from a turnip, so suing an open source project directly is a pointless waste of money. A proprietary competitor may only be interested in excluding an open source project from the market, but even that is effectively impossible. For example, consider the efforts to get rid of DeCSS and its progeny. That was about copyright, not patents, but the point is that a) you can't remove something from the internet and b) a project can always move to another country with more favorable laws. Patents are territorial: if a company sues a project in country A, the project can just move to country B, where the company doesn't have a patent.

Comment: Re:More than the sum of its parts (Score 2) 333

by Grond (#42952979) Attached to: Google Patents Staple of '70s Mainframe Computing

What are you talking about? There is no "Patent Appeals Court" in the United States. There is the Court of Appeals for the Federal Circuit. And the standard for non-obviousness was most recently articulated by the Supreme Court in KSR v. Teleflex , a 2007 case in which the Court held that the precise prior art combination did not need to be explicitly "written down in that form":

As our precedents make clear, however, the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.

The Court further loosened concerns over hindsight bias:

A factfinder should be aware, of course, of the distortion caused by hindsight bias and must be cautious of arguments reliant upon ex post reasoning. ... Rigid preventative rules that deny factfinders recourse to common sense, however, are neither necessary under our case law nor consistent with it.

As for the "more than the sum of its parts" standard: that comes from the Great Atlantic & Pacific Tea Co. case of 1950. And it wasn't modified by some "Patent Appeals Court." It was statutorily overruled by Congress by the Patent Act of 1952, as later interpreted by the Supreme Court itself in Graham v. John Deere .

Comment: Patents are not a license to print money (Score 4, Interesting) 267

by Grond (#42930737) Attached to: Do Patent Laws Really Protect Small Inventors?

A patent is not a substitute for a viable business model. One cannot simply receive a patent and wait for the money to roll in, especially not as technology changes around you, quite often in order to work around your patent.

In this case, in 1991 Baylis invented a generator that was based on storing energy in a spring, then using a system of gears to release that energy steadily to power various devices such as a radio. But by 1995 wind-up radios were on their way out and by 2000 they had been entirely replaced by battery-based radios. His invention was a flash in the pan.

So Baylis had a nice idea, made some decent money off of it, but failed to turn that into a sustainable career. Now he wants the entire UK patent system modified in order to rescue him from his misfortune.

A method of solution is perfect if we can forsee from the start, and even prove, that following that method we shall attain our aim. -- Leibnitz

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