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Comment Re:Death becomes acceptable, doesn't it? (Score 3, Interesting) 170

It's worth remembering that the concept of war as murder is an extraordinarily modern concept with regards to human society. It wasn't that many generations ago that our forefathers even believed that if you died home safe in bed and not in the heat of battle that you would never see the afterlife and your soul might simply vanish. While plenty may consider that to be sociological evolution, and perhaps rightly so, I do not think it is fair to blame the dehumanization of war solely upon LCD screens and video games. The British wore red uniforms to disguise blood, and even the bloodthirsty Romans put sand in the gladiatorial arenas to soak up the gore. We have dehumanized war and death for far longer than the presence of the console video game.

Comment Re:Repercussions (Score 1) 153

The domains in question are licensed (i.e. not property) via a U.S. based registrar for .com, .net, etc. TLDs. In essence, this puts you under U.S. jurisdiction since you are agreeing to licensing terms with a U.S. business. Or at least this is how the argument goes. I fear you may be correct that that argument will further the US relinquishment of key TLDs. At least the strong majority of these domains were pretty evidently selling infringing goods. It also helps that trademark, patent, and copyright issues are often internationally legislated through trade agreements, so a split in due process won't be as dramatic.

Comment Re:And this is why I'll never live in a walled gar (Score 1) 409

Also interesting, and undercutting much of my analysis, is that Ravensburger does not own a trademark to MEMORY in the United States. Apple, as a U.S. corporation therefore, may be overreaching in applying foreign law at least to its U.S. service. Although undoubtedly this makes it easier for them to avoid being held liable for contributory infringement.

Comment Re:And this is why I'll never live in a walled gar (Score 1) 409

Your analysis is correct. Although I completely agree with your post in substance, there are two minor corrections I would contribute:

First, colors cannot be "trademarked" in the conventional meaning of the word. UPS does not own a trademark over the color brown, nor does John Deere own the color green. UPS cannot prevent trucks, or even delivery trucks from being painted brown, nor can John Deere stop farm equipment from being painted green, so long as a reasonable person would not be confused by the origin of the product. What these companies do have, however, are trade dress restrictions which are also governed by the Lanham Act. Trade dress describes your product's overall appearance and packaging of a product or service. At the most liberal outset and expansive of protections, Two Pesos states that trade dress can be distinctive [and thus deserving of protection] without having to show that the trade dress has acquired secondary meaning [has itself become distinctive for other market reasons]. This is the case law as it stands today, though a huge number of critics have taken huge exceptions to this ruling. Two Pesos was reigned in by Wal-Mart v. Samara which stated that a products design is only protectable by showing of secondary meaning. In that sense, Tide cannot claim trade dress infringement by orange-bottled fabric detergent without showing that the orange bottle has acquired secondary market meaning. UPS's brown trucks and John Deere's green tractors will likely have secondary meaning, but the question does not stop at trade dress. Instead, trade dress goes to a likelihood of confusion (so does trademark, but trademark prevents literal infringement in a same category where trade dress may not). For example, If I sell you a green tractor with yellow accents, you might think it came from John Deere. If I sold you the same tractor with purple accents instead of yellow, you likely would not, and I would not have infringed on John Deere's trade dress.

The distinction is best summarized (although I still disagree with the ruling) by Louboutin v. Yves St. Laurent, where a federal appellate court ruled that monochromatic red shoes cannot be 'trademarked' but that red soles on a non-red shoe may be [again dependent upon finding of secondary meaning].

Second, there is an inherent difference between trademarks like "Apple" and "Google," "Photoshop," and that of "Memory." "Apple" and "Google" would fall under the "arbitrary" or "fanciful" categories (respectively) since "Google" is a made up word with no other meaning, and "Apple" is the use of a generic word in a completely unrelated context (computers). Continuing in order of protection, "Photoshop" would be "suggestive," since it is a unique combination of words that suggests the nature of the product [i.e. a digital workshop in which you can retouch photos]. Blu-Ray is a good example.

Memory, on the other hand, is a descriptive mark, which is the least protected and only one step above an unprotectable generic word. "Memory" is directly related to the meaning of the board game in which you must "remember" the location of the cards to match them. The only way that descriptive marks gain protection is if they have developed some secondary meaning in the marketplace. As such, Ravensburger has a much higher standard to prove that they are considered to be the source of the "Memory" game than any other "memory" game on the market. Their continued ownership of the trademark seems to evidence that they have done so.

But you are absolutely right in that Ravensburger has the trademark, and any maker of a "Memory" game is infringing on that trademark. However, the makers of these apps may file an action against Ravenburger to invalidate their trademark and preserve their app's name. So this isn't big, evil Apple beating up on the little guys. These guys are infringing, and they have the burden of proving that Ravenburger is not deserving of the "MEMORY" trademark. They just might have a better chance of invalidating the trademark than, say, Zynga, who instead must call their Scrabble-like game "Words with Friends" instead of "Scrabble" because "Scrabble" is itself a fanciful mark and thus not subject to invalidation without a showing of abandonment.

Comment Re:I still think this guy should countersue . . . (Score 2) 308

According to the testimony of the lower court, yes, he did spray it with the explicit intent to kill non Roundup-Ready crops and grow only Roundup-Ready crops. Not that this is necessarily illegal. But beyond testimony, spraying Roundup on non-RR crops will absolutely kill them; he'd have no other reason to use glyphosate than to grow RR crops.

Also, unrelated to this response, why exactly was I modded "Troll" for my (admittedly flawed) analogy above? I'm not defaming or flamebaiting or attempting to be derisive. I'm merely recapitulating the facts of the case as it's been litigated thus far. Although I have now unlocked the "+5 insightful // +0 troll in the same thread" achievement!

Comment Re:I still think this guy should countersue . . . (Score 1) 308

Yes, since its inception patent infringement has always been applicable to users and not simply producers. That's nothing new to patents; there is no "fair use" claim regarding non-profit or end-user use. Patents can be infringed for making, using, offering for sale, or selling any patented invention or a component or components thereof. Patents are absolutely the most draconian of IP protection. This is supposed to be offset by the "difficulty" and cost of obtaining a patent and the "limited" term of the grant (20 years is a heck of a lot better than life +70 or 90/120 years in case of copyright). Patent experts are seriously questioning whether the scope of patents has gone too far, and now you see the Supreme Court and even the Federal Circuit Court trying to reign in the broad scope that has been allowed.

It should be noted, however, that the only damages recoverable from patent infringement is lost profits, so no patent holder in their right mind is going to go after an end-user accidentally infringing for personal use. Unfortunately, as patent trolls have so readily demonstrated, many patent holders are not, in fact, in their right mind.

Comment Re:I still think this guy should countersue . . . (Score 3, Informative) 308

This is the very basis (seed drift, AFAIK) on which Monsanto has seized lands so far. Every case of Monsanto land-grabbing is a citation.

No, every Monsanto case litigated thus far regarding Roundup-Ready crops has involved farmers gathering seeds from their own contracted plantings (or in Bowman's case, a commodity source) and replanting them with the intention of growing Roundup-Ready crops. No case at all has ever involved seed drift, which means that the seeds have fallen across someone's property line so that a non-RR farmer winds up accidentally growing RR soybeans. Same goes for cross-contamination and cross-pollination. Yes, a number of farmers have claimed seed drift as a defense. In every case, the jury determined that the farmer was lying, usually evidenced by the large quantities of Roundup they were purchasing. "No, I didn't plant those GMOs; I didn't even know they were there. I just so happened to buy a huge vat of Roundup to spray on them, even though I didn't know they could tolerate glyphosate." That argument didn't work. Monsanto, for all of their big-corporate-y evil, has never prosecuted a case on the grounds that a farmer has raised RR crops from seed drift or cross-pollination. Period. Every case on record goes against your vague generalizations. So either you are misinformed or you are trolling. There are innumerable reasons to despise Monsanto. I would suggest adopting one that is based on fact rather than hyperbolic party-line rhetoric.

Comment Re:I still think this guy should countersue . . . (Score 4, Insightful) 308

That's why trade secret protection hasn't taken off, though. Once you're outside of the contract, no protection exists for trade secrets. And once a trade secret is available to the public, it can no longer be protected. This wouldn't help Monsanto, in this case. Once they sold their seed to the farmer, and the farmer could sell the seed on the commodity market (which he needs to do to make a living), the seed is available to the public and poof -- no trade secret protection anymore. Plus, trade secrets can be reverse engineered, which would completely wreck the pharmaceutical industry; spend a few ten-thousand to reverse-engineer the product your competitor spend millions on researching? Sure! Why not?

Granted, I think many of us are of the opinion that Monsanto doesn''t need or deserve legal help, but there is a need for patents/trademarks/copyrights, even if on a significantlymore limited scope than we see them today.

Comment Re:I still think this guy should countersue . . . (Score 1) 308

Mind adding a citation to the cross-pollination as patent infringement argument? I'm not claiming that you are wrong, but in all of my research on the issue I have not seen a court advance an argument that accidental cross-pollination or seed drift constitutes patent infringement. Up until Bowman, the idea has not been advanced that subsequent growths can constitute patent infringement, as the general idea is that the farmer must actually do something to infringe. It never was an issue until seed patents because patented machines don't build subsequent generations of themselves (yet, anyway). I agree that Monsanto would be better protected by their terminator gene products, and that may be down the pipe. They haven't implemented the product yet, though, and claim they have no plans to. I suspect this is due to the fact that it is effectively unmarketable. Of course, because the terminator seeds predate the Roundup-Ready seeds, patent protection on them has likely expired and would be of no financial use to Monsanto anyway. Monsanto's certainly within their right to want to maximize patent protection in their own interests. The question that is to be debated is whether subsequent generations of crops can infringe, and that issue has not yet been considered or decided.

Comment Re:I still think this guy should countersue . . . (Score 1) 308

The sellers were contractually allowed to sell the seed on the commodity market; indeed, that was the only thing they could do of value with the seed in the first place. They would sell to the grain elevators, and the grain elevators sold to Bowman. The grain elevators were not bound by contract. Nor, in any case, would a contract violation be a patent violation.

Comment Re:I still think this guy should countersue . . . (Score 3, Insightful) 308

Agreed. But that is exactly what a patent enforces... a monopoly for a limited time. SCOTUS will not overturn on the monopoly issue alone, as Article I Section 8 of the U.S. Constitution is explicitly clear on acknowledging a monopoly. It's likely gone too far in application, but patents are designed to restrain free market trade and to allow for a "currency" of sorts as upheld by law as well as to sanction a monopoly. The question, statutorily, is whether IP protection has gone too far and now enforces a monopoly no longer successful in promoting "useful arts and sciences" by rewarding innovation. Unfortunately, SCOTUS has been extremely shy of the issue, especially in copyrights (see Eldred v. Ashcroft). They will likely rule on the more narrow issue of subsequent generation/self-replicating infringement.

Comment Re:I still think this guy should countersue . . . (Score 1, Troll) 308

Except in this case it's like the record company suing you for burning a CD you downloaded from a grey-market source. Monsanto seed didn't "appear" on Bowman's land; he bought commodity seed and planted it without a contract with every intention of circumventing the Monsanto monopoly. The question, in copyright terms, is whether his use was a "fair use." Sort of.

Comment Re:I still think this guy should countersue . . . (Score 5, Informative) 308

Incorrect. Monsanto seed did NOT drift onto Bowman's land without his knowledge or consent. Thus far, no such case has been litigated where seed drift or cross-pollination has occurred. Obviously that is a very big question that will come out of this ruling, should the court find for Monsanto, as it will arguably put the onus of burden on farmers to test for and destroy infringing crops caused by cross pollination. That issue, however, is not in debate here.

Bowman realized that a staggering percentage of soybean seeds on the commodity market were Roundup-Ready GM seeds. Normally a farmer has to sign a contract that he will not replant any additional seeds and will buy future generations of seeds from Monsanto. Replanting seeds for these farmers has not been considered a patent infringement but instead a contract violation. The patent infringement idea was unprecedented until this case. Bowman, who had not signed a Monsanto contract, simply decided to buy contract-free seeds on the commodity market, as Monsanto-contracted growers can sell the seeds they are not allowed to replant for general purposes such as food production. Bowman had the novel idea to take these seeds and plant them, spray the seeds with Roundup (thus killing off all the non-Roundup-Ready seeds), and have contract-free Roundup-ready seeds that he could replant at will. Monsanto, which monitors the purchase of Roundup to Roundup-ready seeds under contract, determined Bowman had purchased enough Roundup to be running an un-contracted operation. Unable to ping him on the contract issue, they requested him to stop. He refused, and they sued under the patent infringement theory.

The question that will be debated here is whether or not subsequent generations of Roundup-Ready crops, by the act of growing them, independently constitute patent infringement. Normally for infringement to occur there has to be some performative action. Monsanto is arguing (and the lower court agreed) that the performative act of planting the seeds in the first place is sufficient to transfer infringement to subsequent generations, and therefore the plants can essentially infringe upon each new growth without Bowman's performative action on subsequent growings.

It may seem pretty dumb, but it has the potential to majorly impact the food industry. If the court finds for Monsanto, the "auto-infringing crop" theory would make accidental infringers of any farmer who encountered cross-pollination or seed drift. Although no such cross-pollination has been successfully argued -- in all cases where farmers have brought this defense, it has been very well proven that they were lying through their teeth and had planted Monsanto crops in violation of their contract. Conversely, if the court finds for Bowman, this would in effect nullify Monsanto's patent protection on their seeds, as no farmer would buy from the developer, bound to a contract, where they could just go out and buy commodity seed at a fraction of the cost.

I've researched GMO patent intensively, written articles, and have followed the case for a while now. I think the one constant among GMO patent cases is that both sides -- Monsanto and farmers alike -- have done nothing but provide a tremendous amount of misinformation about the other side. No party line can be trusted. Monsanto argues that they're just trying to make a living and don't gouge anyone, being a humble food producer. Farmers argue that they're being put upon by the big corporate food monopoly and haven't done anything inappropriate other than try to grow organic foods. Both sides are lying and are trying to wage war to maximize their profits. Being as rabidly anti-DRM as we are, I suppose Slashdot readers will support the farmers. Either way, this issue is pretty big for determining whether the judiciary is embracing the pendulum swinging back to more restrictive patents or is continuing the trend of expansive patent protections.

Also worth noting, Monsanto's patents on Roundup-Ready soybeans are set to expire in the next few years, IIRC. The question is going to be entirely academic and legal and will likely have no effect on Roundup-ready crops at all after the patent expires.

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