Forgot your password?
typodupeerror

+ - Supreme Court Unanimously Rules Human Genes Unpatentable 1

Submitted by the eric conspiracy
the eric conspiracy (20178) writes "In a landmark decision the Supreme Court ruled that that mere act of extracting genetic material from the human body does not result in patentable material. However they did rule that synthetic derivatives of DNA can be patented. Known as complementary DNA or cDNA these derivative are essentially stripped down forms of the original DNA.

The result for Myriad is that they still have protection for their test, however the decision also allows researchers to work with the DNA sequences that are predecessors to the cDNA used in the test."

Comment: Copyright and Ownership (Score 1) 480

This is not a pleasant situation, I wish I had good advice for you.

What I want to comment on are the assumptions made in many of these posts regarding US laws on copyright and ownership.

It is unclear from the OP what country you are in and whether you were an employee or an independent contractor; from your use of the term client my assumption is the latter, but I cannot know for sure. If you were in the US and an employee then ownership and copyright will invariably reside with the 'client', however, if you were an independent contractor in the US the situation is very different, can be complex and State laws can complicate it further. I would encourage you to read at least one of these articles 1 2 3 each of which give a good overview of the situation.

Basically, unless it is clearly stated in a contract that the 'client' will own the copyright it is unlikely that anyone other than you, the independent contractor, is the copyright owner. Simply stating that it is a work-for-hire is normally not enough in the case of software, the copyright must be explicitly transferred to the client, or it will often be yours by default. This is because, in general, a computer program falls under the copyright category of literary work, a category not included in the nine categories of work-for-hire defined by Section 101 of the US copyright laws. As always, there are exceptions, but my experience (and legal advice I have been given), indicate that they are not the norm.

Note: IANAL, but I am an independent contractor and have dealt with copyright issues and lawyers several times.

Comment: Re:Yeap (Score 1) 950

by mjs0 (#36517904) Attached to: Man Robs Bank of $1 To Get Health Care In Jail

Which is slightly less than taxpayers in the US pay just to fund medicare/medicaid, which partially cover only a fraction of the population.

Calculation: (figures as of 2009 from U.S. Dept of Health and Human Services)

Total National Health Expenditure (NHE) was $8086 per person

Medicare cost 20% of this, medicaid 15%, for a total of 35% = $8086*.35 = $2830

Which is roughly $235 per month.

So to recap:

  • US: $235 per month in taxes per head to partially cover a fraction of the population.
  • UK: $200 per month in taxes per head to cover every person in the country from cradle to grave.

Note: I can't tell whether the US figures include the additional taxpayer burdens of insuring government workers, medical care for those in prison (see...I'm on topic!), or medical expenses borne by the states and other non-Federal Government entities.

Oh and by the way there are many other hidden costs. Have those of you in the US ever looked at what the medical coverage part of your auto and homeowner insurance costs you? How about those of you in the UK? Oh wait...you don't have to pay that in the UK do you!

Comment: Re:Homeschooling =/= fundamentalist schooling (Score 2, Informative) 1324

by mjs0 (#30940002) Attached to: US Grants Home Schooling German Family Political Asylum

Thank you for saying that, it really is a shame it needed to be said.

Our children are now eight and nine, they have been homeschooled since kindergarten. My wife and I are both atheists and our reason for homeschooling is definitely not religious, in fact we have gone out of our way to teach comparative religion so the kids will understand all the cultural influences of, and references to, the major religions.

Initially we had two main reasons for homeschooling:

  1. I am originally from the UK and we still spend as much as 3 months a year in the UK. Having to deal with pulling the kids in and out of school would have been disruptive for them and made it difficult to maintain continuity in their lessons.
  2. We do not believe in the lowest common denominator theory where classes move at the pace of the slower students. Where I grew up the school's classes were banded by ability within each subject so you could easily be band 1 for English but band 3 or 4 for Maths. My wife grew up without banding and personally experienced the issues with always being ahead of the class.

We priced private school options and decided that on balance we would rather downsize and reduce our income (I went from full time employee to just doing part time consulting work and my wife closed her part time hobby business and found a full-time job with health benefits) in order for one of us to stay home and take care of the education ourselves.

On the subject of socialization, we have observed our kids 'socializing', we deliberately chose a house in an area with a lot of families with school age children and they play together outside after school almost every evening and at weekends without any issues. In order to give them more interaction with other kids in a structured environment they played in a soccer league for several seasons (5-8), we ended up coaching a team but that is another story. My observations in that environment were that the public school kids did not have better socialization skills, if anything the homeschoolers on the teams stood out as leaders and mediators. In fact I would go as far as to say that the homeschoolers in general had good social skills, being cooperative and enthusiastic team players, going out of their way to both motivate and involve other kids and speaking up loudly and clearly, whereas the majority of the public school kids had what could only be called anti-social skills often being rebellious, moody, shy and exhibiting poor listening skills.

As I type this my 3rd/4th graders are hand coding web pages for their sites on our home web server. We use these websites for them to be creative and publish information they are interested in, mostly animal pictures and art for our daughter but Lego and video games for our son. In addition each of their home pages have a link to their school work where they publish their book reports, essays and scanned images of their art work. I just fielded a question from my eight year old on how to use CSS to give the first element in a list a different format to the rest of the list! They both keep bugging me to start teaching them how to make their pages more dynamic and include input fields to gather data.

On the flip side...there are very few good resources for secular homeschoolers. Most of the support groups and a lot of the available curriculums are very religious and of no use to us. The major national home school groups typically cater to the majority religiously focused home school families and even include prayer and other more distasteful activities at their meetings and conferences.

Comment: Re:Dead On (Score 5, Interesting) 233

by mjs0 (#24208037) Attached to: MSM Noticing That Patent Gridlock Stunts Innovation

Well said!

At the end of the day the real test of whether something should be patentable or not should be related to the reason patents were instituted in the first place...to incent investment in R&D by rewarding that investment in innovation. The reward, in the form of artificial protection from competition for a limited time, is enough to ensure the investor(s) profit from the investment. Obvious or not, if a company or individual has invested significant time/money in a program aimed at solving a problem and come up with a new and unique (even if obvious by hindsight) solution they should be rewarded not for the idea, but for the investment, thus incenting investment in innovation.

The fundamental problem with the patent system today is that it has been warped over the years into something it was not intended to be. Remember, the patent system is not something that has to exist; it is something that we as a society agree to have in order to incent individuals and companies to perform activities that are of benefit to society. Patenting of business processes, software patents and incidental patents (my own personal winner for least deserving) are all the result of this move away from the original intention. Combine this shift with the allegations of overworked and wrongly incented employees and the patent system certainly looks broken

There appear to be two basic uses for the patent system that unfortunately are sometimes at odds with each other.

  1. Reward investment in deliberate innovation...The benefit to society is clear...by granting a temporary monopoly on an innovation, individuals and companies are incented to invest in areas that would otherwise not have a decent return on investment due to the ease of duplicating any innovation.
  2. Retroactively profit from incidental innovation...The benefit to individual companies is clear in the form of profits...however the benefit to the general economy and society is less clear but possibly present in the form of eliminating duplication of effort. A company or individual can retroactively identify innovations (that were not the primary goal of the investment) and patent these in order to license the technology to others. The societal benefit of this activity is significantly lower than (1) and certainly does not require or deserve the massive incentive that a patent delivers in the form of a monopoly on that innovation.

[Aside: When I worked for a large s/w company we were encouraged to regularly trawl through our developed code for potentially patentable algorithms, this is clearly a case of (2) not (1)]

Surely the only useful purpose for a patent system is to incent companies to make investments that would otherwise not have been made. If a company got a clear benefit from an investment and would continue to benefit whether granted a patent or not then there is no point in society (i.e. the rest of us) granting them a patent! What they have is a trade secret that should be protected by other laws (copyright?); it should not be a patentable innovation. Other companies should have the right to make a similar investment to develop a similar solution (or license the technology/solution from the original company if that is agreeable and makes more economic sense)

Today, if a company has a trade secret that they feel they could make money off they typically have to patent the trade secret (even if only defensively) and then license it. This behaviour (licensing developed solutions) should be incented but not using the same system as that which incents investment in innovation.

So how about taking this approach...

  • Patents should be returned to their original goal...a way to incent innovation by protecting those innovations that result from deliberate investments in R&D.
  • Encourage a parallel system that allows companies to profit from incidental innovations if they have value. A way of facilitating the offering of such incidental innovations as commodities rather than legislating them as monopolies is what is needed and far more in keeping with a truly capitalist approach to this, i.e. let the market decide if the innovation is valuable. It would avoid the negative effect of a making these trade secrets patentable, which actually makes innovation in related areas harder to achieve. After all, projects which have a decent return on investment without patents will continue to get investment without patents. Why would we as a society give free profits for incidental innovations (effectively simply raising the price for all of us) that are a result of work that would be done anyway?
  • Every patent application should be subjected to a test of intent. Was it the intent of the investment to solve this particular problem in a new and innovative way, if not then the invention is incidental and cannot be patented.

The effect of this proposal is to separate the reward systems for deliberate innovations and incidental innovations. It would drastically reduce the number of innovations that qualify for patents (deliberate innovations), but continue to encourage the licensing of incidental (but genuine) innovations as commodities, exposing them to market forces that would determine how obvious they were (i.e. if they truly have value people will pay for them, if they are obvious or exist elsewhere then they won't pay for them...simple.)

The Courts

Judge Rejects RIAA 'Making Available' Theory 353

Posted by ScuttleMonkey
from the need-a-new-revenue-strategy dept.
NewYorkCountryLawyer writes "A federal judge in Connecticut has rejected the RIAA's 'making available' theory, which is the basis of all of the RIAA's peer to peer file sharing cases. In Atlantic v. Brennan, in a 9-page opinion [PDF], Judge Janet Bond Arterton held that the RIAA needs to prove 'actual distribution of copies', and cannot rely — as it was permitted to do in Capitol v. Thomas — upon the mere fact that there are song files on the defendant's computer and that they were 'available'. This is the same issue that has been the subject of extensive briefing in two contested cases in New York, Elektra v. Barker and Warner v. Cassin. Judge Arterton also held that the defendant had other possible defenses, such as the unconstitutionality of the RIAA's damages theory and possible copyright misuse flowing from the record companies' anticompetitive behavior."
The Internet

Comcast's FCC Filing Called Unfair, Not Good Enough 157

Posted by Soulskill
from the fight-fight-fight dept.
Shoemaker brings us a follow-up to Comcast's recent defense of its traffic management procedures. The companies involved in the original FCC investigation are not satisfied with Comcast's response. From Ars Technica: "Comcast made an aggressive defense of its policies, claiming that it only resets P2P uploads made during peak times and when no download is also in progress. Free Press, BitTorrent, and Vuze all say that's not good enough. In a conference call, Vuze's general counsel Jay Monahan drew the starkest analogy. What Comcast is really doing, he said, wasn't at all comparable to limiting the number of cars that enter a highway. Instead, it was more like a horse race where the cable company owns one of the horses and the racetrack itself. By slowing down the horse of a competitor like Vuze, even for a few seconds, Comcast makes it harder for that horse to compete. 'Which horse would you bet on in a race like that?' asked Monahan."
The Courts

+ - RIAA Complaint Dismissed as "Boilerplate"

Submitted by
NewYorkCountryLawyer
NewYorkCountryLawyer writes "The decision many lawyers had been expecting — that the RIAA's "boilerplate" complaint fails to state a claim for relief under the Copyright Act — has indeed come down, but from an unlikely source. While the legal community has been looking towards a Manhattan case, Elektra v. Barker, for guidance, a case in which amicus briefs had been submitted by various industry groups and the US Department of Justice (see case file, and from Warner v. Cassin, a similar motion in the same Court's Westchester division, the decision instead came from Senior District Court Judge Rudi M. Brewster of the US District Court for the Southern District of California, in a decision denying a default judgment (i.e. the defendant had not even appeared in the action). Judge Brewster not only denied the default judgment motion but dismissed the complaint for failure to state a claim. Echoing the words of Judge Karas at the oral argument in Barker , Judge Brewster held (pdf) that "Plaintiff here must present at least some facts to show the plausibility of their allegations of copyright infringement against the Defendant. However, other than the bare conclusory statement that on "information and belief" Defendant has downloaded, distributed and/or made available for distribution to the public copyrighted works, Plaintiffs have presented no facts that would indicate that this allegation is anything more than speculation. The complaint is simply a boilerplate listing of the elements of copyright infringement without any facts pertaining specifically to the instant Defendant. The Court therefore finds that the complaint fails to sufficiently state a claim upon which relief can be granted and entry of default judgment is not warranted.""

Your code should be more efficient!

Working...