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Chokes McGee posted:I disagree that patents of any kind have any place. Ideally, patents wouldn't be needed. Now, this is "ideal" in the libertarian "ignores the entirety of human history and the sum knowledge of human behavioral sciences" sense. People would naturally follow designs faithfully and not skimp on materials, manufacturing, or completion. Differences between the inventor's version would be clearly advertised and the goal of lower cost at identical quality would result in great savings being passed to consumers. That is not the case now, it has never been the case, and it will not be the case at any point between now and the end of all things. Patents should strictly be meant for some semblance of design control. Assholes like Edison and Jobs would love the prospect of demolishing the patent system as it would allow them to appropriate and walmartize anything they can get their hands on for a quick buck. Thankfully, both of them are now suing garage businesses and pissing on FRAND principles in hell. The US Constitution explicitly states patents/IP rights are to be guaranteed to the inventor "for a limited time." Currently the only thing that would see patents as being limited in duration is a particularly autistic astrophysicist who thinks a billion-year calendar would be a cool gift. Granting patents for decades or marrying IP rights to an estate in order to secure hereditary wealth doesn't incentivize anything other than juvenile laziness. Combine that with the class system we have in the US and you've got a recipe for disaster since the children of successful inventors lock themselves into the elite class while coasting on dad's money.
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Dec 7, 2013 08:33
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StarMagician posted:Do the Supremes have anywhere close to the degree of technical expertise they would need to write a decision that would accomplish this? You could find literally tens of thousands of practitioners that could testify that the current level of disclosure in patents forces undue experimentation; which hopefully would lead them to the right place. Really, a big part of the problem here is cultural and I'm not sure how to fix that. If the patent office thought there really was a problem with the current software patent landscape they have so much leeway that they could start issuing rejections based on insufficient disclosure; and the amount of disclosure most people want to see in software patents would almost assuredly force more descriptive claims plus start bringing into play restriction practices [i.e. 1 invention/patent]. The problem is the patent office doesn't have a problem with the current level of disclosure or amount of detail in which inventions are described in the claims*; and the culture of the office means that getting examiners to actually apply these standards (which completely would break the factory-line-like path patents take from application to approval) would be shocking. The patent office also needs to find a way to hire better people. When I worked there as an examiner I was straight out of college and the large majority of my coworkers started straight out of college as well. Now that I have many years of experience working in the field, I can say that there is absolutely no way that someone straight out of college has the background to determine what is and is not obvious to one of ordinary skill in the art; and the huge majority do not have enough experience to determine what is a necessary level of disclosure. Considering applications are made on a prima facie basis, unless you fix the cultural issues, the system will always be a trainwreck. *I don't think I can stress how big of a problem this is. Under the reasoning that the claims are all that matters in court to determine patentability; examiners are trained to pretty much ignore everything except what is claimed. The first thing an examiner will do when reading a patent is to read the claims s.t. what is disclosed does not bias one to what is claimed; and getting to the point where one can issue actions based solely on the abstract and claims is encouraged. The problem is while the claims are what the lawyers care about; the description is what the practitioner cares about. Chuu fucked around with this message at 10:29 on Dec 7, 2013 |
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Dec 7, 2013 10:07
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Chuu posted:You could find literally tens of thousands of practitioners that could testify that the current level of disclosure in patents forces undue experimentation; which hopefully would lead them to the right place. The claims have to be both enabled and sufficiently described. Which is to say, the specification has to describe the invention with sufficient particularity to enable one of ordinary skill in the art to practice it. In patent software, the situation generally is that ideas are trivial to implement once described: the issue is coming up with the idea in the first place. Patents protect ideas not implementations, so software patents really are working as intended.
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Dec 7, 2013 13:04
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StarMagician posted:Do the Supremes have anywhere close to the degree of technical expertise they would need to write a decision that would accomplish this? No
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Dec 7, 2013 13:05
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WhiskeyJuvenile posted:In patent software, the situation generally is that ideas are trivial to implement once described: the issue is coming up with the idea in the first place. I would argue that for most software patents this is not the case. The idea is the easy part, the implementation is the hard part. This really goes back to the burden of undue experimentation. Chuu fucked around with this message at 14:54 on Dec 7, 2013 |
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Dec 7, 2013 14:50
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Not to mention, patents actually aren't supposed to protect ideas, they're supposed to protect implementations. That's why when someone claims something functionally (by saying what a component does, rather than what it is) we limit them to the structures disclosed in the specification. The problem is that examiners are far too willing to grant patents with functional claims without forcing those claims into the proper form (means plus function). That form has additional strictures and safeguards that are particularly useful for software patents.
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Dec 7, 2013 16:49
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Chuu posted:I would argue that for most software patents this is not the case. The idea is the easy part, the implementation is the hard part. This really goes back to the burden of undue experimentation. It's impossible to say whether "most" software patents the implementation is difficult. There are an awful lot of bullshit software patents out there - for example, when you're scrolling your phone screen and it hits the bottom, iphones bounce as they stop scrolling. That's patented. There's certainly not anything that's difficult to implement there, it's purely a patent on a program behaving a certain way. I feel most real "innovation" in programs is a unique combination of data structure and algorithm and the implementation is obvious (not trivial in time, but obvious) once that's been described.
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Dec 7, 2013 19:09
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Kalman posted:Not to mention, patents actually aren't supposed to protect ideas, they're supposed to protect implementations. That's why when someone claims something functionally (by saying what a component does, rather than what it is) we limit them to the structures disclosed in the specification. Patents are supposed to protect ideas, but they can also protect implementations. It's the difference between functional claiming on the first hand and means-plus-function claiming on the other: a means-plus-function claim does require a disclosed algorithm; functional claiming does not. The difference is also in what's patentable: carrying out a known process by novel means is fairly simple to claim as means-plus-function with corresponding disclosure, but the claims only cover the disclosure and its structural equivalents.
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Dec 7, 2013 19:45
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Shbobdb posted:Knowing some people who have been hosed over because big business was able to ignore their patents and drop more cash than they could ever afford in court, I agree that the patent system is broken. But in the face of financial coercion, I don't think the right answer is to let the free market work it out. Bang. No more "I win because I am rich" and no more "I sue because its worth the roulette wheel game where I hope the judge uses iShit products and sides with me". (Obviously this is a rough and sarcastic sketch, but the general message comes across.) (They also need to stop allowing easy patents on "innovation" as opposed to "invention".)
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Dec 7, 2013 20:53
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FRINGE posted:Make the use of private lawyers illegal in patent law. Probably an unconstitutional deprivation of due process.
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Dec 8, 2013 02:07
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Paul MaudDib posted:There are an awful lot of bullshit software patents out there - for example, when you're scrolling your phone screen and it hits the bottom, iphones bounce as they stop scrolling. That's patented. There's certainly not anything that's difficult to implement there, it's purely a patent on a program behaving a certain way. I disagree that good design, once you reveal the underlying structure, is "obvious." I'd say that good design is often intuitive, but nothing about intuitive design is easier. It's actually quite difficult. I don't have an answer for the patent issue at stake, but it's erroneous to think that software innovation is a matter of proprietary formulas. The revolution in computer and mobile technology has been grounded on changing the very way that we interact abstractly with computers, which makes something like springy scrolling, despite it becoming a favorite example of frivolous patents, actually quite important.
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Dec 8, 2013 12:15
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The joke/line is usually "everything is obvious after it's invented." Its definitely true.
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Dec 8, 2013 15:19
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Are there any good layman's books on personhood arguments, high-profile cases, etc.? I'm not that interested in corporate personhood, but areas like abortion, equal rights, and perhaps animal rights as well.
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Dec 8, 2013 15:59
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Cocoa Ninja posted:I disagree that good design, once you reveal the underlying structure, is "obvious." I'd say that good design is often intuitive, but nothing about intuitive design is easier. It's actually quite difficult. Humanity hasn't been 'sliding to unlock' for centuries. Chain locks, car door locks, old door latches, etc. Now a lock screen? That's a novel function. It can display information, pictures, notifications, etc.
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Dec 8, 2013 19:08
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hobbesmaster posted:The joke/line is usually "everything is obvious after it's invented." Its definitely true. I think the bigger issue is that there has been a trend towards patenting a problem rather than a solution. This means that the patents are written in such a way that any solution to a given problem is going to be infringing. Patent 5,272,628 is a good example where any algorithm method to merge two tables with different columns is going to be infringing and really just describes using a computer to do what people had been doing by hand since tables had been invented.
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Dec 8, 2013 19:32
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The Entire Universe posted:Humanity hasn't been 'sliding to unlock' for centuries. Chain locks, car door locks, old door latches, etc. Old bolt locks are literally a bar of metal you slide to lock/unlock the door. Sliding to unlock a screen instead of a door is a new use of the function, but the function itself is by no means new.
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Dec 8, 2013 22:14
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Evil Fluffy posted:Old bolt locks are literally a bar of metal you slide to lock/unlock the door. Sliding to unlock a screen instead of a door is a new use of the function, but the function itself is by no means new. Hindsight is the worst kind of obviousness analysis. Think of it this way - until the iPhone, did any electronic device use a slide to unlock function? It's not like touch screens were new, or lock screens, after all.
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Dec 8, 2013 22:22
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The Neonode n1m.
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Dec 8, 2013 22:27
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Kalman posted:Think of it this way - until the iPhone, did any electronic device use a slide to unlock function? It's not like touch screens were new, or lock screens, after all. Yes, absolutely. Try the NeoNode N1m, debuted at CeBit in March 2002. The patent office is not doing an appropriate job of assessing the significance and prior art of patents, and is leaving it to the courts to sort out (at great expense to anyone smaller than, say, Microsoft). The concept of patenting the fashion in which icons move around on a screen is totally absurd in the first place. Apple having the exclusive right for 28 years to have their UIs bounce when they stop scrolling does not advance the arts and sciences in the slightest. Similarly many of the "design patents" that are getting issued are also absurd and absusive - "a tablet PC with rounded corners" should not be patentable. For all the talk about "streamlining regulation" and cutting red tape, significantly reducing the duration and scope of software patents would be something that would have a profoundly positive impact on the economy. There are very direct costs to these patents in terms of startups that get trolled out of business. The actual implementation (source code/binary) would be protected by copyright and is obvious to any practitioner of the art once the novel ideas have been described, so I'm at a loss as to why software implementations are patentable beyond corporate rent-seeking. Paul MaudDib fucked around with this message at 23:11 on Dec 8, 2013 |
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Dec 8, 2013 22:32
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Paul MaudDib posted:Yes, absolutely. Try the NeoNode N1m, debuted at CeBit in March 2002. The Neonode device seems like prior art to "slide to unlock" as a concept but it's not at all prior art to the actual claims of the first slide to unlock patent which specify quite a bit more than slide to unlock. I haven't read the patent in detail, nor have I researched the Neonode beyond looking at that one sequence at 4 minutes into the video, so I am not going to make a guess at obviousness in the legal sense. I agree with you that the PTO is bad at their jobs for the most part (I mean, I deal with them regularly, I am well aware of how NOT good at their jobs they are) but the rest of your post is pretty ignorant regarding how patent law works. Starting from the difference between a utility and design patent (basically everything from the fact that design patents are granted unless anticipated while utility patents also mustn't be obvious to the varying infringement tests to the basic concept of what they protect) to the minor detail that it's 20 years, not 28. The Apple patent doesn't cover a tablet with rounded corners - it covers a specific shape of tablet with a specific amount of rounding on those corners and certain design features. Does Apple getting a patent on UI bounce advance the arts and sciences? Of course not. In all likelihood, it slightly retards that advance. On the other hand, protecting a return on easily copied research and development does advance the arts and sciences in general, even if each individual one doesn't on its own. And why don't we want to protect the implementation of the novel idea, exactly? We won't allow patenting the idea directly (in theory - the PTO being lazy allows functional claims through far too often) because we don't want to remove the idea from public access entirely. Instead, in theory, we protect implementations of that idea that the original inventor comes up with, and then others can freely provide alternative implementations which they themselves can patent and protect. That system incentivizes both the original idea as well as people looking into alternative routes to doing the same thing. Finally, reducing the duration of software patents would have little to no effect on what's going on unless you reduced the duration to a trivial duration, which would then give you problems when trying to distinguish a software patent from other patents. Most modern inventions (outside of the world of pharma) are mixtures of software and hardware anyway, so are those software patents, or not? If you try to draw lines, people like me will play games with which side of the line the patent sits on depending on which is advantageous, and if you don't draw lines, you're killing the rest of the patent system (some of which clearly works well like pharma and to a lesser extent semiconductors, some of which has mixed results) in order to deal with a problem that there are better solutions to. Like putting teeth into functional claiming restrictions again, which is what I suggested earlier in the thread.
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Dec 8, 2013 23:53
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http://forums.somethingawful.com/showthread.php?threadid=3592957 Shut up about patents
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Dec 9, 2013 00:04
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Alito proves once again that he is a tremendous piece of poo poo:quote:(Reuters) - A federal judge this week defended his custom of urging lead law firms in class actions to staff the lawsuits with women and minority lawyers, two weeks after U.S. Supreme Court Justice Samuel Alito took the unusual step of criticizing the practice. Judge Baer owns, but leave it to the Concerned Alumnus of Princeton to make sure that the voice of racist, sexist, boorish hacks doesn't go unrepresented. Alito's statement about the makeup of the bar versus the makeup of plaintiffs is a delightful bit of concern trolling, too, given that he signed onto the gutting of Brown and the attempt to bring loving integration into the bullshit affirmative action analytical rubric. (Obviously, there are a number of tensions with Baer's practice and the ideal, but I'm generally in favor of more efforts to remedy the whiteness of the bar, especially in complex civil litigation.) The Warszawa fucked around with this message at 02:59 on Dec 9, 2013 |
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Dec 9, 2013 02:47
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Didn't everyone just get done arguing that sort of connection was NOT important when it was about Vaughn Walker?
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Dec 9, 2013 03:12
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OneEightHundred posted:Didn't everyone just get done arguing that sort of connection was NOT important when it was about Vaughn Walker? It's not disqualifying, but it is useful. You do get that they're distinct concepts, right?
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Dec 9, 2013 03:15
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OneEightHundred posted:Didn't everyone just get done arguing that sort of connection was NOT important when it was about Vaughn Walker? Judges aren't a party's lawyers and they play very different roles. Baer's argument is more in line with Sotomayor's "empathy" comments than anything. Kalman posted:It's not disqualifying, but it is useful. You do get that they're distinct concepts, right? Also this.
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Dec 9, 2013 03:15
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Nationalize the lawyers.
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Dec 9, 2013 03:35
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The Warszawa posted:Judges aren't a party's lawyers and they play very different roles. Baer's argument is more in line with Sotomayor's "empathy" comments than anything.
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Dec 9, 2013 03:49
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OneEightHundred posted:It seems pretty similar when it's about turning minority membership (or in turn, lack of it) into a measure of competence. This particular "compatibility" angle of doing it is pretty dangerous because, if it's validated, it can just as easily allow minority lawyers to be excluded or devalued if the class is mainly white. The issue with Walker wasn't competence, though - it was whether he would be unduly biased. In contrast, the issue for a party's lawyer would be whether they can adequately understand the problems faced by their client. White people don't have unique problems in the way that minorities do, so the rationale you're proposing only works if you're John Roberts.
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Dec 9, 2013 04:01
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Kalman posted:White people don't have unique problems in the way that minorities do, so the rationale you're proposing only works if you're John Roberts. OneEightHundred fucked around with this message at 04:20 on Dec 9, 2013 |
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Dec 9, 2013 04:15
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OneEightHundred posted:If the class is disproportionately white, then it's a "white problem" by definition. I don't think we need to fear that the justice system won't pay enough attention to the concerns of white people. If we find that minority lawyers for such a class aren't doing a good enough job defending their disproportionately white clients from the rich powerful minority-run businesses that harmed them, then we can suggest that white lawyers would be better counsel for that case.
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Dec 9, 2013 04:19
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This is probably going to be a more discussed question once the marriage equality suits go their way (and maybe even before then depending on what Chelsea Manning does): as a trans person (even one who doesn't live in the US, but has a healthy interest in US politics), I'm aware that governments both state and federal are both rather restrictive on transgender recognition. When it comes to administration and healthcare, how much would those laws and procedures be able to withstand judicial review? For example, you can't get funding for surgery often under the excuse it's "experimental" or "cosmetic". But it's anything but, with the medical community saying that it's an essential procedure, and often the reasons for the original denial are obviously out of animus (see: Jesse Helms and Janice Raymond in the 1980s). And cases regarding prisoners (such as Michelle Kosilek) often end up with rulings under the Eighth. Then again, given the media outrage and the unwillingness of at least four Justices to depoliticise healthcare provision, I can't see any good news practically. 
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Dec 9, 2013 04:24
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OneEightHundred posted:If the class is disproportionately white, then it's a "white problem" by definition. The thing about systemic marginalization of non-white/non-male people is that what you're calling "white problems" affect people outside that category while the people outside that category also endure additional burdens by virtue of not belonging to that category. What Baer is saying fits into what was once the dominant theory of racial justice law in this country: that you cannot extricate underrepresentation of minorities/women from the hundreds of years of systemic marginalization that those groups have endured, while no comparative systemic marginalization exists for white people qua white people or men qua men. The post-Adarand shift to classificationism has resulted in an utter clusterfuck because it is a nonsensical approach to systemic discrimination, which - let's face it - was the whole loving idea if you're familiar with O'Connor's racial discrimination jurisprudence (as well as Rehnquist's nasty history with the issue). This is the Roberts framework to which Kalman refers - that an attempt to remedy systemic discrimination that "disadvantages" whites (i.e., does not confer the same benefit to whites) is as pernicious as an attempt to enforce systemic discrimination. Baer's framework distinguishes between remedying systemic discrimination and perpetuating it. Nevertheless, unless a class is basically 100% white male, efforts to staff in reflection of the makeup of the class is pretty much always going to result in an increase in representation for both minorities and women. TinTower posted:This is probably going to be a more discussed question once the marriage equality suits go their way (and maybe even before then depending on what Chelsea Manning does): as a trans person (even one who doesn't live in the US, but has a healthy interest in US politics), I'm aware that governments both state and federal are both rather restrictive on transgender recognition. When it comes to administration and healthcare, how much would those laws and procedures be able to withstand judicial review? I think there's an intuitive argument for gender identity to fit into intermediate scrutiny (which is the traditional "gender" standard of review), but the push beyond rational basis review wasn't established solidly until 2013. Now, animus has been a basis for invalidating a policy under rational basis before (see Romer) but ultimately you've got the right of it - unless there are five votes to establish a precedent for heightened scrutiny, it's unlikely that anything positive is going to happen. Personally, I doubt anything is going to happen through prison litigation for a whole host of reasons. The Warszawa fucked around with this message at 04:55 on Dec 9, 2013 |
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Dec 9, 2013 04:53
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VitalSigns posted:rich powerful minority-run businesses that harmed them How about something like securities mismanagement or fraud? White men are pretty overrepresented as investors, so big fund (which is probably mainly staffed by other whites) mismanages a bunch of assets and gets sued by the investors. Judge decides that this since the class is full of rich white guys, this is a white male problem, so minority and female lawyers just won't understand and counsel had better be stacked with white men. It could have easily been done in the case in question, since SXM subscribers are disproportionately men, and mostly make over $100k/yr.
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Dec 9, 2013 05:19
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OneEightHundred posted:When did I even hint at something like this? There is no such thing as a white male problem. (There are legitimately male problems if you were doing some kind of "this drug gave me prostate cancer" mass tort case, but in general not, and there's no such thing as a white problem.) You are literally parroting the rhetoric Roberts used in Parents Involved and by doing so keep overlooking the entire point we are making.
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Dec 9, 2013 05:23
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OneEightHundred posted:When did I even hint at something like this? You heard it here first, white males are the only people with IRAs and other holdings in mutual funds.
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Dec 9, 2013 06:14
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OneEightHundred posted:When did I even hint at something like this? You didn't hint at something like this. I was pointing out that the defendants in these suits are usually big businesses controlled by rich white men. It's reasonable to question whether a rich white lawyer would have the perspective to effectively represent a class disproportionately made up of minorities that are hurt by the businesses' actions and understand the extra burdens that the plaintiffs face which he does not when he shares the perspective of the defendants. If the class is disproportionately white, suing someone who is white, then a minority lawyer can represent them fine. The lawyer doesn't identify any more with the defendants than the plaintiffs here, and anyway there aren't "rich, white man problems" that aren't problems everyone faces. The extra problems minorities face are consequences of systemic racism. Minority and female lawyers will understand the problems of rich white men just fine because they face those problems too. The only time we'd have to worry about this is if the power dynamics of society have shifted such that some minority group has attained enough power to disadvantage whites, and one of those minority-owned companies has hurt whites in a way that a minority lawyer has no experience with. That's the only time we should seriously think about using this ruling to demand that counsel be white men, and this situation isn't really even a foreseeable danger on the horizon.
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Dec 9, 2013 06:28
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The Warszawa posted:What Baer is saying fits into what was once the dominant theory of racial justice law in this country: that you cannot extricate underrepresentation of minorities/women from the hundreds of years of systemic marginalization that those groups have endured, while no comparative systemic marginalization exists for white people qua white people or men qua men. Both aspects are problematic: If discriminatory hiring practices are evidence of poor counsel, then using the represented proportions within the class is a very poor way to detect it, because class composition varies wildly. If race/gender matches translate to better counsel, then that's a very problematic assumption to allow for reasons I've already explained. Kalman posted:There is no such thing as a white male problem.
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Dec 9, 2013 06:42
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OneEightHundred posted:If this was about an AA program to get more minorities and women into law, I'd agree, but it isn't. It's about a rule that is about effectiveness of counsel, with effectiveness being measured by racial compatibility with the represented class. Except that that implies there are unique aspects to being white and male in American society. (There aren't.)
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Dec 9, 2013 06:55
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Baer was being a bit cheeky with the vague federal rule for certifying representative classes and plaintiffs (and I think, based on his comments, was practically doing so far more for affirmative action reasons than for proper representation) and Alito wanted to smack a liberal judge down and write his usual color blind constitution tripe but went pretty far over the line into what basically amounted to an unprofessional advisory opinion to do so. I don't see the broader claims over effectiveness of counsel here.
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Dec 9, 2013 06:58
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Kalman posted:Except that that implies there are unique aspects to being white and male in American society. (There aren't.) There are totally unique aspects to being a white man in America. There aren't any unique problems that I can think of, but surely that in and of itself counts as a unique aspect?
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Dec 9, 2013 07:03
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