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Comment Re:Terrible decision, regardless of patent feeling (Score 1) 78

Not quite - the "total profit" part in the statute only applies to design patents.

And yet, just like the camera and folder organization patent and the cell phone video conferencing patent from Samsung, all the patents in question from Apple in this last particular case brought up by the Supreme Court were ALL utility patents, NOT design patents.

The '647 patent covers "quick links," which do things like automatically detect data in messages that can be clicked. The '959 patent covers universal search, such as what Apple uses in Siri. Patent No. '414 involves background syncing, such as syncing calendars, email, and contacts. The '721 patent covers slide-to-unlock, the motion used to unlock the home screen. And '172 covers predictive text.

Nope, you're wrong. From the opinion:

Apple secured many design patents in connection with the release. Among those patents were the D618,677 patent, covering a black rectangular front face with rounded corners, the D593,087 patent, covering a rectangular front face with rounded corners and a raised rim,and the D604,305 patent, covering a grid of 16 colorful icons on a black screen.

And, from the Wiki:

In two separate lawsuits,[48][49] Apple accused Samsung of infringing on three utility patents (United States Patent Nos. 7,469,381, 7,844,915, and 7,864,163) and four design patents (United States Patent Nos. D504,889, D593,087, D618,677, and D604,305). Samsung accused Apple of infringing on United States Patent Nos. 7,675,941, 7,447,516, 7,698,711, 7,577,460, and 7,456,893.

Comment Re:Terrible decision, regardless of patent feeling (Score 1) 78

It does involve constitutionality. The constitutionality of any law passed by Congress must be be weighed by the possibilities of that law. (McCollough vs Maryland and Brown v Maryland). If the monetary award is a penalty against Samsung, it can be argued as excessive in the light of only a component of their phone was infringing (and both parties agreed that the infringing design could be be considered a component). Article 8 of the Constitution prohibits excessive fines.

The monetary award is not a penalty, but compensatory damages, which are not fines. That's been ruled on repeatedly. And no part of this decision involved the 8th Amendment. Congress also has almost limitless rulemaking authority for patents and copyrights under Article I, Section 8, Clause 8, primarily subject only to the first amendment (where most conflicts would arise).

Comment Re:Terrible decision, regardless of patent feeling (Score 1) 78

Which is why they're throwing the decision back to lower courts, who will start proposing specific tests in different rulings and cases. Those cases will be appealed, different districts will develop different standards and those will need be be reconciled, and eventually over many different cases a robust test will emerge.

Asking the SCOTUS to develop a test right off the bat is a recipe for a bad precedent.

Although generally true, patent appeals all go to the federal circuit, not the other circuits, so it's not like SCOTUS will get a split to reconcile. As with the Bilski and Akami decisions, the Fed Circ. will propose a test; SCOTUS will say "eh, not that one"; the Fed will propose another; and rinse, and repeat.

Comment Re:Terrible decision, regardless of patent feeling (Score 1) 78

. I said they're disregarding the explicit language of a long-standing statute and previous Congress-slap of the court, and replacing it with "you want a test? Go make one up."

Absolutely untrue

Then please quote from the opinion where the test is laid out. I'll wait.

Flip over a carpet sometime. You'll see a standard mat that the fibers are woven into that is the same, regardless of design. That mat is a substantial part of the carpet, literally holding it together.

Nobody's arguing any different. If there's a practical way to separate the components of a carpet into articles of manufacture (and they must be items you'd make separately) in such a way that only one part violates the patent, then only that one part violates the patent, and the damages can be assessed. That's entirely within the keeping of the 1952 act, which explicitly codifies the "Article of manufacture" language.

Mats are made in advance of weaving the carpet fibers. Only the carpet fibers infringe the patent, not the mat. This new analysis that the damages would not be measured by the total profits per yard of carpet, however, is directly at odds with Congress' explicit 1887 refutation of that earlier case.

but it's not necessary to redefine article of manufacture.

Sotomayor isn't redefining anything.

Yes, I know that. You were the one who said that "it would certainly mean a complete shake up of patents if patents ceased to apply to components", and I said that it wasn't necessary to redefine the term. It's a bit odd that you're now explaining to me that no one's redefining the term, considering that's what I just said. Makes me wonder if you're actually reading my entire post, or just angrily pounding out a response based on the first couple words in each sentence.

Comment Re:Terrible decision, regardless of patent feeling (Score 1) 78

Nope, you're just wrong about what they did. I explained here, but to summarize:

Your claim: they went back to 1885 and changed the profitability criteria to "incremental value added by patent."

I never said that, and responded to your other post explaining that I never said that. If you want to insist I did say it, please copy-paste from my post.

What they actually did: they said that the profits due to the infringed upon party need to be those applying to the component that was sold, rather than the whole of the smartphone.

What I said in my original post: "the Court steps in and says "oh, by total profit, it's just the total profit for any component using the design, not the entire article."
I think you've misread what I was saying. Your attempt to correct me by saying the same thing I did is misguided, but I nonetheless appreciate the indirect confirmation of my analysis.

Your insults to the Supreme Court Justices are noted and hardly do your case credit: they may not know much about technology, but this case wasn't about technologies, it was about the criteria needed to measure compensation. You bet Scalia's fat dead ass they all know the law on that better than anyone else.

My insults to them were an explanation of why they voted 8-0 and issued an opinion that only had 5 substantive pages and punted the creation of any test to the Federal Circuit: they really don't care much about patent law. This was to address your contention that, because they're "deeply divided" on Constitutional issues around, say, privacy or the federal-state divide, it's highly unusual for them ever to agree on something (that happens to entirely unrelated to those issues).

Comment Re:Terrible decision, regardless of patent feeling (Score 1) 78

You're misrepresenting the opinion. The opinion is not "Oh, let's go back to the incremental value added by the patented technology as the yardstick for profitability"

I never said it was. I said they're disregarding the explicit language of a long-standing statute and previous Congress-slap of the court, and replacing it with "you want a test? Go make one up." And sadly that's not a misrepresentation. It's barely even a paraphrase.

In the carpet's case, 100% of the carpet violates the patent, regardless of whether you compare it to a beige carpet or not.

Flip over a carpet sometime. You'll see a standard mat that the fibers are woven into that is the same, regardless of design. That mat is a substantial part of the carpet, literally holding it together.

Reading the opinion, they're not just making up that criterion. The "article of manufacture" concept is long standing in the patent world, and it would certainly mean a complete shake up of patents if patents ceased to apply to components, and only to the whole of a completed product. (Whether that's a good or bad thing I'll leave to the lawyers.)

Yes, but it's not necessary to redefine article of manufacture. Going back to the 1887 statute, the phrase was "the total profit made by him from the manufacture or sale. . . of the article or articles to which the design, or colorable imitation thereof, has been applied.” And this was preserved in the 1952 Act, saying:

Whoever during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250...

So the question is not "what's an article of manufacture, is it just a component", but "to what has the design been applied". And there, it seems that you can either say, "it's applied to the product", or you can go to ever narrower levels of "it's applied to a case... well, part of the case... well, really just the surface of part of the case... well, just the paint on the surface of part of the case... but not the primer either..."

Comment Just to clarify... (Score 4, Interesting) 26

A Wisconsin federal jury found that Life Tech had willfully infringed and should pay $52 million in damages. But the district judge overseeing the case set aside that verdict after trial, ruling that since nearly all of the Life Tech product had been assembled and shipped from outside the US, the product wasn't subject to US patent laws.

It's infringement under US Patent law to make, use, or sell a patented invention in the US. However, it's also infringement to import a patented invention, made elsewhere, into the US. So you can't, for example, escape liability by saying "oh, we don't manufacture in the US. We manufacture in Mexico and then heave them over Trump's wall to waiting buyers." So, something had been assembled and shipped from outside the US would still be subject to US patent laws if it was being shipped to the US.

In this case, LifeTech manufactures their kits in the UK and sells them in Europe (and elsewhere). One component of the kit is manufactured in the US and shipped from the US to the UK, and the question is whether that component brings those sales under US patent law.

So, just to clarify, the summary should be "since nearly all of the Life Tech product had been assembled and shipped from outside the US to locations outside the US, the product wasn't subject to US patent laws."

Comment Re:Terrible decision, regardless of patent feeling (Score 1) 78

So that stood for 140 years (including the 1952 Patent Act, where Congress again said that the damages for infringement were the total profit).

You're totally right, of course.

Samsung should give all of its smartphone profits to Apple since it infringed on some of Apple's patents.

And conversely, Apple should give all of its iPhone profits to Samsung, since the court had also found that the iPhone had infringed on some of Samsung's patents.

Not quite - the "total profit" part in the statute only applies to design patents. And Samsung never accused Apple of infringing any design patents, and Apple was never found to have done so. So, no, the damages wouldn't offset that way.

The better question is "why are design patents treated differently?"

Comment Re:Terrible decision, regardless of patent feeling (Score 1) 78

I'm finding it somewhat improbable that an 8-0 decision would be made on a deeply divided Supreme Court with justices having dramatically different views of the constitution if there's such a compelling case in opposition to the decision they made. Can you put forward a theory that explains why all eight justices rejected this argument?

This case doesn't involve constitutionality at all, so their deeply divided views there don't matter. Most patent decisions are unanimous or nearly unanimous. Generally, because they care about patents and technology exactly as much as you'd expect from a bunch of 70 year olds that don't even use email.

Why did they reject the argument? Because they didn't like the outcome.
What's the legal reasoning that supports that? There really isn't any. If there's no constitutional argument to be made, they don't get to rewrite a statute just because they dislike the outcome. Instead, they try to shoehorn in a statutory interpretation argument that doesn't really apply, considering that Congress explicitly told them how to interpret the statute the last time this happened.

Comment Re:Terrible decision, regardless of patent feeling (Score 1) 78

I don't give a shit what congress said 100+ years ago. Rationalizing that rounded corners is worth the entire profits of a phone is intuitively wrong.

And if so, Congress should change the law. The Supreme Court doesn't just get to rewrite things on their own for funsies. If it's not unconstitutional - and there's absolutely nothing about this that's unconstitutional, nor does the Court ever suggest there is - then they can't simply strike down a law because they dislike the outcome.

Comment Re:Terrible decision, regardless of patent feeling (Score 1) 78

If the cases were so cut-and-dried, why was the decision 8-0? Usually, if there is such an obvious conflict with the law, at least ONE justice will dissent. But zero?

The justices know as much about patents and technology - and are interested in knowing about patents and technology - exactly as much as you'd expect for a bunch of people in their 70s. This decision barely hit 9 pages, and half of that was on the procedural history of the trial and appeal. They had some clerk rush this off, and they don't really care - hence why they acknowledge there needs to be test, but simply remand to the Federal Circuit to come up with the test.

So why 8-0? Because 7 of them probably didn't bother to read the opinion.

Comment Why do people patronize the major labels? (Score 1) 40

I assume that people watch videos containing major label music instead of Creative Commons music because major label music is more familiar to them. Then the question becomes how major label music became more familiar to them in the first place, despite Creative Commons music being readily available for both download and streaming. Is it that people without a big cellular data plan still listen to FM radio, which plays almost entirely major label music?

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