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Comment: Re:They should be doing the opposite (Score 1) 298

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) 298

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?

Comment: Re:They should be doing the opposite (Score 1) 298

There's sort of a parallel issue with patents. The biggest problem with software patents IMO was the inability to get at material locked up in patented data formats.

The format is just a container. You can get that song in the MP4 format in an MP3 format, or as an Ogg file, or a WAV, or an AIFF, etc., etc. How does a patent on the MP4 format prevent you from getting at the material? Unless your real complaint is that the manufacturer only provides it in one format... in which case, isn't your real problem with the manufacturer, not the patent?

It's like complaining that you only have a flathead screwdriver but your new shelving system requires Phillips or Robertson, and therefore screws shouldn't be patentable.

Comment: Re:They should be doing the opposite (Score 1) 298

5 years is fine - with copyright extension for sequels. That is, if you have a sequel within 5 years, then your original copyright can be extended for another 3 years,

This encourages actually giving the people what they want sooner rather than later.

The thing is that most art can be divided into 3 categories - a) crap that no one would copy even without copyrights, b) pretty good work that need copyright protection for 5 years, but no one would copy after that anyway and c) mega-hits that earn so much money in the first 5 years that the original creators might quit and never do anything again unless we found a way to encourage them to create again - hence the copyright extension ONLY if they make a sequel.

George Martin released A Feast for Crows in 2005, but didn't release A Dance with Dragons until 2011, so Game of Thrones is public domain under your suggestion and HBO need not pay him royalties?

Comment: Re:What the hell is going on a the USPTO? (Score 1) 58

by Theaetetus (#49457199) Attached to: After EFF Effort, Infamous "Podcasting Patent" Invalidated

Patents are equally useless for protecting against copying the look and feel of a game.

Design patents aside, of course.

You can only patent specific concepts or technologies, say, the way Zynga tried to patent the the use of in-game virtual currency. You're telling me you think the proper way for these indie devs to handle this is to go out, patent their own code and algorithms, and then fight it out in court with Zynga? Insanity.

You're saying a better way to handle it is to get no legal protection and just hope that Zynga never decides to copy them? Worse insanity, particularly because we've seen it fail, over and over.

The AAA game industry isn't "ignoring" the patent issue. They're simply declining to participate in the patent war madness that everyone else seems to be currently engaged in. Companies like Zynga are the exception to the general trend, and may end up forcing everyone else to do the same goddamned thing. Do you know who'll be left behind here? Yeah, the indie devs, because they can't afford patent lawyers and ridiculous lawsuits.

Patent litigation is frequently done on contingency. That's like saying "I can't afford to have you place a bet for me, because if it wins, I have to give you a share of the huge pile of free money I get."

Read the massive list of Zynga patents. It makes me weep as a game developer.

Why should it? After all, I believe a wise man once said, "The only way to beat a company that steals your best ideas is to keep coming up with better ones." Similarly, the only way to beat a company that comes up with the best ideas and patents them is to come up with better ones, right? Or pay a reasonable license fee if you can't come up with a better idea.

The USPTO seems to be rubberstamping whatever the hell Zynga sends their way, so long as it's couched in enough confusing terminology and legalese (oh, and "online" is mentioned anywhere).

[Citation needed]. The USPTO currently rejects around 95% of patent applications in this industry, so if they've got a rubberstamp, it says "DENIED".

If you actually read the patents in detail, they're essentially the sort of thing any competent developer would think.

If you read anything in detail, then ask yourself immediately afterwards if you could think of what you just read, you'd say yes. It's called hindsight. The question is whether any competent developer would have thought of it before reading the patent. And that takes evidence to prove, not a gut feeling based solely on "I understand what I just read, so therefore it must be obvious."

Comment: Re:What the hell is going on a the USPTO? (Score 1) 58

by Theaetetus (#49455305) Attached to: After EFF Effort, Infamous "Podcasting Patent" Invalidated

And look what happened to them. Zynga are bottom feeders, and are absolutely loathed in the more 'traditional' videogame industry (those of us that make AAA PC and console games) for this and plenty of other reasons. They're the perfect poster child for why software patents are a horrible idea.

Zynga goes after indie and mobile developers for whom copyright is useless, unlike you giant AAA players. So they're the poster child for why software patents are a horrible idea? That makes no sense. Software patents - or being a multi-million dollar AAA developer - are the only thing that can stop them.

In fact, it's actually the classic story justifying why patents should exist: you've got small innovators whose ideas are copied by a ruthless giant corporation, and other giant corporations - such as your own - ignore the issue.

Comment: Re:What the hell is going on a the USPTO? (Score 1) 58

by Theaetetus (#49454431) Attached to: After EFF Effort, Infamous "Podcasting Patent" Invalidated

Perhaps better than the IPR mechanism would be an appeals process by which anyone can make an 'obviousness' challenge to any patent approved by the rank and file PTO staff to a higher-level and more technical board that must review the patent before it's actually enforceable.

There are such mechanisms - ex parte reexamination (available from 1981 until 2012) and post-grant review (available since 2012). And it works as you say - a panel of senior examiners review the patent, in response to a challenge, which can be based on obviousness or other issues.

Thing is, it's not started with just someone screaming "that's obvious! Review the patent!" Just like we don't go through a full trial based on someone merely saying "that guy's guilty of a crime!" or "that guy owes me money!", the challenge or complaint has to meet a minimum threshold for likelihood of invalidity/guilt/liability. If you do your homework and search for some good prior art, then you can challenge the patent. If you don't do that homework, and just make a conclusory claim, then your challenge will get immediately dismissed, as it should be.

Comment: Re:What the hell is going on a the USPTO? (Score 1) 58

by Theaetetus (#49454391) Attached to: After EFF Effort, Infamous "Podcasting Patent" Invalidated

I don't think the problem is software patents. The problem is stupid patents. Like, I patent exactly the same thing everyone does, *but on a bicycle!*. The examiners seem to have completely forgotten the basic premise, which is that you cannot grant a patent to something that a person with an ordinary skill in the art could come up with based on prior art.

They haven't forgotten it - what they realize is that they have to prove that a person with ordinary skill in the art could come up with the claimed invention based on the prior art. It's not something as simple as a gut feeling of "this is obvious", particularly because they get that gut feeling after reading the patent application. If it's a really well written application, super clear with tons of explanatory diagrams and examples, the end result should feel pretty obvious, in hindsight... but that says nothing about whether, one day before without reading that application, someone could come up with it.

So, they have to prove obviousness using evidence that was available on that previous day, and specifically, if they can show that all of the elements in the claimed invention were known on that day and could be easily combined, then it's obvious. So, for example, if peanut butter sandwiches are known and riding bicycles is known, then "eating a peanut butter sandwich, but on a bicycle!" is obvious, even if no one has ever done that particular combination before. The question is where there's some element of the invention that no one actually has ever done before - turning at an intersection based on a degree of tire rotation to peanuts crunched per bite ratio exceeding a threshold - then proving that that is obvious gets a lot tougher.

Comment: Re:What the hell is going on a the USPTO? (Score 1) 58

by Theaetetus (#49454369) Attached to: After EFF Effort, Infamous "Podcasting Patent" Invalidated

There's nothing about our products that isn't perfectly well protected by copyright and trademark law.

Copyright is great for protecting that specific piece of software from piracy. It does almost nothing to prevent another developer from doing a copycat game. That's why Zynga laughs at copyrights, but does file a bunch of patent applications.

Comment: Correction - 5 claims of 35 invalidated (Score 1) 58

by Theaetetus (#49454357) Attached to: After EFF Effort, Infamous "Podcasting Patent" Invalidated
The patent still has 30 currently valid claims - only claims 31-35 were invalidated. They were also the only claims that Personal Audio claimed Corolla infringed, so invalidating them is a good step forward, but it's a bit much to claim the patent itself is invalidated.

The remaining 30 claims were also quite a bit narrower than Claims 31-35, so this decision wouldn't necessarily indicate they're likely invalid.

Comment: Re:Pao = Sexist (Score 1) 892

Men negotiate harder than women do

Is this because woman are unable to negotiate as hard? Because they are unwilling to? Because they are too stupid to? What is her explanation? Is it hormonal? Does it have to do with having different body mass distribution? Inquiring minds want to know.

It's impressive that you got a several hundred word post out of failure to read the rest of a sentence. The full quote was:

"Pao told with the Wall Street Journal Monday that the plan would help level the playing field. 'Men negotiate harder than women do and sometimes women get penalized when they do negotiate,' she said.

Women tend to be penalized for negotiating, so women have learned not to negotiate very hard. It has to do with hormones or body mass as you are actually an "inquiring mind", which is to say not at all.

Comment: Defense was never arguing innocence (Score 4, Insightful) 250

by Theaetetus (#49431859) Attached to: Verdict Reached In Boston Bombing Trial

Given his poor defense, I'm really not all that surprised. Though I wonder how it will flesh out in appeals if he gets the death penalty. One might argue the poor quality defense would force a retrial if they can convince an appeals court of incompetence or something like that.

The defense strategy was never to argue that he was innocent, it was to argue that he should receive life in prison rather than the death penalty. That will mainly occur over the next few weeks in the sentencing phase of the trial. This first guilt phase could've been done on day 1, but the prosecution wanted to grandstand.

Comment: Re:Look at the table in the PDF (Score 1) 71

And for Cassini2 specifically, it's not an issued patent vs. rejected patent. Both were issued, the point being that the new one was issued after the first was invalidated by a district court...

USPTO wanted comments on the guidance, not pointing out where they are failing to meet the guidance. This is where the EFF probably overstepped.

Actually, it's issued patent vs. pending application. And where the EFF overstepped was in violating 35 USC 122(c):

(c) Protest and Pre-Issuance Opposition.— The Director shall establish appropriate procedures to ensure that no protest or other form of pre-issuance opposition to the grant of a patent on an application may be initiated after publication of the application without the express written consent of the applicant.

Had the application been issued, that wouldn't be an issue (pun aside), but as the EFF admits in their comments:

For example, on Nov. 12, 2014, U.S. Pat. App. No. 11/091,200 received a notice of allowance.5

5 The applicant has since filed a Request for Continued Examination (RCE), the 12th RCE filed since the application was first filed in 2005.

So, yeah, it's a pre-issuance protest to the grant of an application, without express written consent of the applicant.

Comment: Re:Constipated Justice System (Score 1) 230

by Theaetetus (#49406363) Attached to: 'Revenge Porn' Operator Gets 18 Years In Prison

I realize that it is difficult to achieve a balance in fairness in sentencing but here we have an example of a court getting whacked out. Try and find a single case in which a drunk driver or hit and run driver who has killed someone gets 18 years in jail.

Ah, but this wasn't a single case with a single victim. This was 27 separate charges with literally thousands of victims. It shouldn't be surprising that someone who commits a crime 27 times serves more time than someone who commits it just once, and that yes, even though it may be only a couple of years of time for a single charge, when you aggregate more than two dozen charges, the time starts approaching that served for a more heinous crime.

For comparison, would you say that it was an example of a court getting whacked out that this guy got 20 years in prison even though he didn't kill anyone, unlike your hypothetical drunk driver (his 11 armed robberies notwithstanding)?

Comment: Re:Bring on the discussion of fair sentencing... (Score 1) 230

by Theaetetus (#49406311) Attached to: 'Revenge Porn' Operator Gets 18 Years In Prison

From what I can see the normal prison term for aggravated identity theft is five years and for extortion of $30,000 is about 2 years or a bit more depending on prior criminal record, so a five to seven year sentence would be normal and actually feels reasonable to me. There's no question that this guy's behavior was abominable and deserving of punishment, but the novelty of the offense is not an aggravating factor.

It's not. Rather, the number of separate victims and separate instances of crime is the aggravating factor - he was convicted of 6 counts of extortion and 21 counts of identity theft. Going by your math above, that's 12 years for the extortion and 105 years for the identity theft, or 117 years. He got about 1/6th of that, so, if anything, this is light.

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