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Comment: Not so hefty reduction... (Score 2) 66

Probably not... as noted elsewhere, only the damages on the registered and unregistered trade dress were struck, while the damages on the patent infringement were upheld. The jury verdict form doesn't break down damages by patents vs. trade dress, but there were 7 patents that Samsung was found to infringe (5, willfully, which triples the damages); and there was only one trade dress registration and one unregistered trade dress that were shown to be protectable... and many of Samsung's devices were found to infringe the patents but not either of the trade dress claims, so it's not even going to be as big as a 2/9 reduction.

For example, take the Samsung Epic 4G, which the jury counted as $130.1M in damages. It infringed all but one of the patents, but wasn't found to infringe either the unregistered or registered trade dress. So this judgement won't reduce that award by a penny. Same thing for any of the Samsung Galaxy S II models other than the Showcase, which collectively are $250M.

Comment: Terrible article, and reduction wasn't on patents (Score 5, Informative) 66

First, from the article:

The full court documents go into some details about the reasons for the decision. It explains that "the requirement that the unregistered trade dress 'serves no purpose other than identification' cannot be reasonably inferred from the evidence" (trade dress patents cover design elements that are functional as well as aesthetic) so a recalculation is in order.

The article is confusing two things here... First is trade dress, which is part of trademark law and covers the look and feel of something. It's under the commerce clause of the Constitution, and is codified in the Lanham Act at 17 USC 1051-1127. Trade dress is also a common law doctrine (and some states, particularly the original colonies, have their own state trademark law), and accordingly, there is such a thing as unregistered trade dress rights (there are also registered trade dress rights).
Second is design patents, which are part of patent law and also cover the look and feel of something. It's under the patent clause of the Constitution, and is codified in the patent act (35 USC 100 onwards). There is no such thing as an unregistered design patent or a "trade dress patent".

Finally, neither trade dress nor design patents can cover functionality. They only apply to aesthetic features or "surface ornamentation".

"But wait, Theaetetus," some Slashdotters protest. "Rounded corners are always functional, because otherwise, you'd cut your fingers off on the sharp edge!"
That's true, and neither the trade dress nor the design patents cover the concept of rounding a corner... Instead, they cover this specific radius of curvature. Specifically, why would you choose rounding the corner? To avoid sharp edges. Why did you choose a 1/8" radius instead of a 1/6"? An arbitrary aesthetic design choice.

Moving on to the real point here...

The jury found that Samsung infringed the (i) unregistered trade dress, (ii) registered trade dress, and (iii) design patents. With regard to the first one, the unregistered trade dress, Apple has the burden of proving that it's nonfunctional. They failed to do that, because the design as a whole offered some utilitarian advantages. So the damages placed by the jury because of (i) should be struck.

Turning to (ii) the registered trade dress, this had nothing to do with rounded corners. The registered trade dress covered the 16 icons on the iPhone's home screen. The Court held that those icons have functional features, since they tell people whether they're clicking on email or a browser. So, since they're functional, the damages placed by the jury because of (ii) should also be struck.

That leaves us with (iii), the design patents. Here, however, the jury was instructed to disregard any functional elements and focus just on the aesthetics. And here, Samsung loses, because they can't show any error in that.

So, the jury award is reduced to just what is applicable to the patents, not the trade dress.

As an aside, the court also upheld the validity of Apple's utility patents over Samsung's objections. So this is a net loss for Samsung.

Comment: Re:Nope (Score 2) 90

by Theaetetus (#49660867) Attached to: How To Set Up a Pirate EBook Store In Google Play Books

The DMCA safe harbor protects them as long as they take it down immediately on request, and google is big enough to weather any lawsuit. Now if you or I were running an app store...

No, the DMCA provides no safe harbor for anyone profiting directly from the unauthorized sale of copyrighted works, intentional or otherwise. As long as the Google bookstore gets a cut of the profit on the sale, there's no safe harbor.

First, I don't believe that's correct. The DMCA doesn't seem to mention profit anywhere except in relation to whether something is a nonprofit institution of higher education.

Second, direct vs. indirect profits are when an infringer has both direct profits from the infringement (selling the infringing work) as well as indirect profits (add-on non-infringing sales of other works that may have been caused by the sale of the infringing work). For example, if I sell you pirated software plus a "service and warranty package", that's both direct profits and indirect profits.

Comment: Re:Lawsuit incoming? (Score 1) 90

by Theaetetus (#49660843) Attached to: How To Set Up a Pirate EBook Store In Google Play Books

I could personally target one legitimate publisher with many DMCA take down requests (where I lie about my identity). And I could do this repeatedly. That would create a pattern. Wouldn't it?

That's a different pattern than GP was referring to, and wouldn't lead to the same negligence conclusion. Specifically, GP was saying "what if there are multiple legitimate takedown requests for 'Harry Potter by Al Alson', 'Harry Potter by Bob Bobson', 'Harry Potter by Charlie Charleson', 'Harry Potter by Dave Daveson', etc., each indicating infringement of the same work - Harry Potter by Rowling. Would that lead to a conclusion of negligence (or more accurately, willful blindness) by Google?"

Your response that you could send false takedown requests for many different legitimate works is a pattern, but not the same one. It would also lead to a conclusion that the seller was being harassed, rather than that the seller was a pirate and that Google knew or should have known that.

Comment: Re:A few points (Score 1) 509

by Theaetetus (#49639327) Attached to: What To Say When the Police Tell You To Stop Filming Them

1) The problem I see with the "Am I free to go?" question is that in all of the recorded interactions I have seen, the police officer more often than not just ignores the question.

Police: "Sir, can you tell me your address?"
Citizen: "Am I free to go?"
Police: "Sir, I need your address so I know if you should be on this street."
Citizen: "Am I free to go?"
Police: "Sir, do you live on this street or not?" ...and so on. Eventually the police officer will either concede the person is free to go, or will call for assistance.

You're correct. The next step is to say "I've repeatedly asked if I am free to go, and you haven't answered. Unless you tell me otherwise, I'm going to assume that I'm not free to go and am being detained. I refuse to answer any other questions without my attorney present" or conversely, "I've repeatedly asked if I am free to go and you haven't answered. Unless you tell me otherwise, I'm going to assume that I am free to go and will be on my way." If they then say "stop", that's detention.

5) At what point do we start holding North Carolina officers responsible when they unconstitutionally pull people over for a burned-out rear tail light? NC law only requires a single "stop lamp" on the rear of a car. The Walter Scott incident should have never happened, as it is reasonable for NC officers to know by now that NC law has held being pulled over for only a failed brake light is unconstitutional.

Yes and no... The Supreme Court held, 8-1, that even though stopping someone for a single broken tail light in North Carolina isn't legal, it's not unconstitutional, because it's reasonable for police to not know the law. :/

Comment: Re:Prior art (Score 1) 60

Or, he filed the patent years ago, and then filed a series of updates to it. Each update delays the final "approval date" and allows him to modify the patent. Over time, he can craft a vague sounding patent and/or one that covers existing technology. Then, his "prior art date" is from a year before when he INITIALLY filed the patent. So while the final patent might have been considered innovative if filed as-is on the initial filing date, patent trolls abuse the "update" system to draw their patents out until they are hard to beat via prior art.

That's simply not true. While patent applicants can file continuation applications with revised claims, they must have support in the originally-filed application, and the applicant cannot modify the original application at all. If anything is added that wasn't in the original document, then the "prior art date" is moved to when the modification was added. See

Comment: Re:I wish it had been dismissed on the merits (Score 1) 126

Too bad it was just a procedural dismissal due to wrong venue and not due to the merits of the case.

United said such ticketing schemes violate its fare rules. For one thing, the tickets capture seats that will go unused, and an airline would have no way to sell those unused seats

Well, actually, they already *have* sold those seats -- to the person that bought the ticket and decided not to use the rest of it. But it's not true that they have no way to sell those seats -- if the flight is overbooked or full, then they'll fill the unused seat with a bumped or standby passenger.

Do you really want to encourage them to overbook and bump more people?!

Comment: Re:"X, but on a phone" (Score 1) 60

There have been recent (good) rulings that saying "X, but on a computer" is not a valid patent. I hope that lower courts say that this is just "X, but on a mobile computer" so we don't have to have an explicit ruling also blocking "X, but on a phone".

On another note, I wonder if it would be worth having some crowd-funded anti-patent-troll fund. I know the EFF takes the fight when able, but that's usually after smaller companies/individuals have caved and paid the extortion fee. If there was a fund that would take the patent-holder to court and pay out any ruling against the defendant, should the patent be deemed baseless (any patent, not just electronics), that would hopefully halt the trolls far earlier in the process and dissuade others.

Not really... Contrary to popular wisdom (and Subby's attempt to call a 500 person company a small shoe store), patent trolls almost never go after individuals, because individuals don't have any money. Unlike copyright infringement with the $150k per work, there are no statutory damages in patents, and damages aren't even 100% of profits - they're limited to a reasonable royalty. If even a small patent lawsuit costs $200-500k, and you can expect to get 5% royalties, you aren't going to sue someone with less than $4M in annual revenue... And in reality, try closer to $1M to run a small patent lawsuit and royalties closer to 2-3%. So, now you're talking $50M in revenue to be a real target.

So, the real question is can you crowdfund $2-5 million to defend companies with tens of millions in annual revenue? It's like you're asking David to donate to protect Goliath.

Comment: "Small time" shoe seller? (Score 2) 60

From the linked article:

Shoes for Crews, which makes skid-proof soles for workers who toil on slippery surfaces, has sold millions of pairs of shoes to workers at McDonald’s, KFC, Taco Bell, P.F. Chang’s, Ruth’s Chris Steak House and other restaurant chains. The company says its secret formula makes the stickiest soles on the market, but Shoes for Crews refuses to file for a patent, fearing the process would reveal valuable clues to rivals

Not really a small shoe store as Subby implied, but rather, a manufacturer and wholesaler which, according to LinkedIn, has between 200-500 employees. So, it's more like "patent troll sues multi-million dollar company", but that doesn't really get as much sympathy.

Comment: Re:Vice Versa (Score 1) 56

by Theaetetus (#49590597) Attached to: US Senate Targets Patent Trolls

Thank you for straightening me out on the length of patents.

My objection still stands on the grounds that John Cornyn and Chuck Schumer can only be up to no good. Both are bought and paid for by people who don't care a whit for encouraging innovation or improving the IP laws for the benefit of consumers.

Absolutely. I should've been more clear that I was only objecting to the length part. :)

Comment: Re:Vice Versa (Score 2) 56

by Theaetetus (#49589981) Attached to: US Senate Targets Patent Trolls

Does anyone else care to bet that any bill coming out of the Senate to curb "patent trolls" is going to end up extending patents even longer and basically making the patent system even worse?

Guaranteed they don't get longer. Patent term hasn't been extended since 1861*. Unlike copyright, where you've got big copyright owners with tons of money lobbying on one side vs. poor pirates on the other, and BMG and Sony have no interest in using each others' copyrighted works, in patents, everyone may want longer term for their own stuff, but shorter term for their competitors'. So, like if Microsoft started lobbying for longer patent term, Apple and Google would lobby against them. And vice versa.

*It did go from 17 years from issue to 20 years from filing, to comply with an international treaty, but it took about 3 years from filing to get issued, so there wasn't any real change. It's actually arguably shorter now, because there aren't submarine patents that can last decades.

Comment: Re:Overly-wide interpretations (Score 1) 56

by Theaetetus (#49589955) Attached to: US Senate Targets Patent Trolls

The biggest problem appears to be allowing wide interpretations of patents and ignoring what would be obviousness in the eyes of most practitioners. Here are some suggestions:

1) A jury-like panel of practitioners to judge obviousness.

2) Spell out that merely emulating common physical actions or behaviors should not be patentable, only specific algorithms of such emulation.

3) Reject the mere combining of existing ideas unless the combining is judged non-obvious (#1).

4) Limiting the percentage of revenue a medium or large company can receive from patent royalties.

5) An independent quality review board to make sure approved patents are not overly broad. They'd randomly sample patents.

These are good suggestions... Such that many of them are already implemented:
1) Before applications are allowed, they're judged by the Examiner and the Examiner's Supervisor (and, in the case of lower tier Examiners, also a Primary Examiner). It's a small jury, but still is one.
2) That's currently the rule - if something has been done before, it can't be patented. So, Apple's slide to unlock patent can't just claim "sliding to unlock" or "emulating a bathroom door-style sliding lock". Instead, it claims the algorithm that doesn't have a real-world analog.
3) This was actually the result of KSR v. Teleflex several years ago. The Supreme Court said that if you claim A+B+C and different prior art teaches A, B, and C separately, the combination is obvious by definition, unless there's some explicit reason why it's impossible to combine the art.
5) The USPTO does random quality checks before patents get issued - they randomly select some allowed applications and a panel of senior examiners in the relevant technology review the prosecution and examination history. If it's good, they get allowed. If it's bad, they get rejected and the original examiner gets sent for more training.

The real new suggestion is #4, but I don't think that would be constitutional, since you're making a rule that essentially seizes revenue from a company from a legal source, yet because of that source. That could present some 5th Amendment issues.

Comment: Re:They should be doing the opposite (Score 1) 309

Yes, it's ultimately the producer that provides it in one format. And if patent law were structured sanely, so that the patent fees were paid by the producer - and not the consumer, that'd be fine.

They're paid by the software producer. Now, sure, they pass that cost on to the consumer, but complaining about that is like complaining about capitalism in general. "Why should I have to pay extra for my food because the farmer has to buy seed and fertilizer?"

It sounds like you're making a pseudo-libertarian argument for letting the market dictate formats and platforms. But patent law operates in opposition to that. In a market dominated by one or two players, a state-granted monopoly on file formats locks any upstarts out of that market.

Except it's (i) only a state-granted monopoly on a single file format, and those upstarts are free to make any other file format they want (see, e.g. Ogg, MP3, WAV, AIFF, etc., etc.); and (ii) it's not even a monopoly that locks people out. It's a standard, so it can't be used for an injunction - they just have to pay a reasonable royalty.

Compatibility with existing content is vital.

Hence AIFF and WAV, formats that have been around for decades and are free and clear of any patent protection. Full compatibility, hooray!

Oh, wait, that's not good enough - you want access to the latest and greatest perceptual audio coding systems, but don't want to pay even a small royalty for it... So pirate it. That's what everyone else does, and they're not going to go after an individual for a single copy.

But, wait, that's not what you want either... You want to become a commercial distributor, making thousands or even tens or hundreds of thousands in revenue, a new "upstart" in the marketplace, but you don't want to have to pay your suppliers. Yeah, I can't sympathize. Sorry.

Comment: Re:Sifling uncreativity (Score 1) 309

There are all sorts of works of art that are based off of using other people's creations in even more direct ways. Weird Al has been creating pop music parodies for decades that are based on other people's material, he seems pretty creative. Look at Johnny Cash's cover of the song 'Hurt', originally recorded by Trent Reznor.

Weird Al writes new lyrics and sometimes, new arrangements. The Beastie Boys used sampling and remixes to make an entirely new song. Johnny Cash simply performed a cover with the original lyrics and music. If "someone likes my version better" is enough to destroy a copyright owner's rights in the original, then under your theory, Glee just destroyed most music copyrights and shouldn't ever have to pay royalties. Is that what you want? A world with more versions of Glee?

"Take that, you hostile sons-of-bitches!" -- James Coburn, in the finale of _The_President's_Analyst_