Laurence Tribe, SCOTUS Blog
Laurence Tribe, SCOTUS Blog
One of the ways in which the patent system provides incentives to commercialize is the protection it gives to smaller inventors or even smaller companies. With a patent in hand, an inventor does not have to wait until he finds the funds to produce the item himself, therefore potentially bringing the item to market earlier. Of course, it is possible that the patenting process itself may delay the process in some cases, but when such revenue does not need to be raised, one can produce the item in question during the application process, or even before, subject to the statutory bar/ novelty restrictions.
It also decreases transaction costs. Under the alternative, trade secret, an inventor must be careful who he discloses the information to, especially if he is not familiar enough with trade secret law to know he has legal protections there, or if he would not have the resources to sue. With the legal monopoly in hand, he can more easily seek investors or manufacturers with less worry that secrecy will be violated. While suit for infringement does present costs, the confidence a patent instills and the deterrence it serves makes this less of a problem.
Similarly, an inventor or company that does not ordinarily manufacture such items has increased ability to license the product. Disclosure to potential licensees carries much less risk in a parallel fashion. Indeed, when an item is capable of reverse engineering or when licensing a product is similarly impossible under trade secret (is it ever possible?) the ability to trade permission to manufacture for revenue increases the chances that such rights will fall into the hands of those with the ability to produce the good, bringing it to the public sooner than it would have under a different regime (if it ever would have reached the market at all).
Of course, commercialization is not the only means of extracting public benefit from a patent. The disclosure provision allows the public to build on the knowledge contained therein. With the narrow experimental use exception, one can even practice the patented invention in a limited manner to derive further inventions based on the disclosure. It may also be possible to build on the innovation without actually practicing it, in a theoretical manner. In either case, it enables one to produce another informational good for the public benefit.
This good is likewise granted to the public in the form of disclosure, if a patent is applied for on the result. It is also possible that the derivative good is donated to the public domain, if it is disclosed by an academic or student who publishes her findings. However, in the latter case the ability of the public to use the knowledge is subject to the original patent entitlements. But they can still be used, in a great hall of mirrors, for invention of still more derivative innovations, increasing exponentially the public knowledge on the matter. With the ability to cross-license for use of the derivative invention, the ability to pay for use of the original, or the expiration of the foundational patent, this good can even reach the public in the form of a commercialized product.
In other news, Activision’s “Guitar Hero” violates patent: Gibson which appears to concern Patent 5,990,405 After reading this, non-lawyer hubby Vinny and I had a long debate. He came up with the idea that by licensing use of Gibson guitars in the game, they had de facto ratified the software – perhaps waiving claims? I played devil’s advocate. I thought perhaps that if it was being examined equitably, or holistically, a judge might recognize the separation of the elements of licensing the guitar and policing patent rights – the former being done by the marketing folks, and the latter by an outside firm.
While there is no legal decision on the subject, Activision seems to agree with Vinny. The news came out after he had set forth the theory, confirming that the guy who sat in on fewer than a dozen law classes has a killer instinct for the subject. Ask me some-time about his mutual mistake theory for common-law implied obligations in marital contracts.
These are two other live blogs on the hearing, the first being the course’s blog as a whole. The direct link to the live blog on the course website is here.
Sarah McKee (retired Federal Attorney): Wanted to hear from non-techies how the ‘net improves their lives, and about ‘net neutrality. She plays music for cancer and other hospital patients. To organize them, they need the internet, without it they would not be able to operate.
Q: Best case scenario network?
A: Their business follows broadband – hence a lot of oportunity in Asia (i.e. China and Japan) Can work when we understand what is being done to them. They rely on the structure of the internet to habndle things like basic congestion control. has been functioning for a long time with Forsythe’s protocols. That is where the purview of basic communications take place.
Q: Is that the basis or one of the points of BitTorrent Technology?
If they can develop technology that works with cable, they will have a competitive advantage. because it is a closed commercial servcive they have innovated a lot in the area.
Q: If your protocol were not to work on a specific type of network, and they were to adopt a disclosure of this – we have public disclosure requirement on food, even though it is competitive, how would you feel about such a requirement?
A: There is considerable disclosure on the function of bittorrent.
Q: Is the application developer or the network operator the one who ought to be adapting? The expectation is that if you have internet service, your app can function regardless of who is providing it. it is like telling people n ot to speed, but not disclosing the speed limit. What is missing here from the current disclosures is there is no way for the applicaitons to conform becaus there is no alternative information being provided. Not a simple problem to solve, but there need sot be more back and forth about how they are expected to behave.
* Scott Smyers, Senior Vice President, Network & Systems Architecture Division, Sony Electronics Inc
Competition in the video content distribution space would be advantageous, and allow new providers to enter the market. Sony experiences competition a little differntly. There are over 80 TV manufactureres, every year costs go down and technology improves. This is not the case in the video content distributon space. He hopes the Commission will recognize the alue of competitors entering this new maarketplace.
ISPs make rational busines decisions when designing and deploying their networks. They must make sure t remains useful for at least basic internet traffic. They must find a means of coping with bandwith scarcity – which can result from over suppy or ver-demand, and overuse.
* Eric Klinker, Chief Technology Officer, BitTorrent
Comcast has introduced the idea of blocking BitTorrent. The speaker is dicussing the potential of this medium to have beneficial uses for the ‘net. It has many legitimate uses, including those companies that use it as a free distribution stream for their content, like Fox and Warner. Blocking this technology under the mantle of ‘network maintance’ would block the potential development that we might see in this area.
There is a lot of congestion on the network, though. but this is evidence that we are no country for old Broadband. Survival of the ‘net as a whole means that content providers are transparent in the way they deal with the internet. He wishes there were a way to do this without regulation.
David Reed: (Adjunct Professor, Massachusetts Institute of Technology Media Lab) Network Management of High-Speed internet providers.
Potential for worldwide internet to work for all users. Datagram – there are only four items stamped on the outside: origination address, destination address, protocol indicator, and the directions for how it should be delivered. The content is inside the envelope – this is crucial to the nwtorks ability to adapt to new techniques.
Content is meaningful only to the sending and receiving hosts. When congestion becomes extreme in autonomous systems it is common to discard the envelope – the sender is responsible for retransmitting the content in a new envelope.
Responsibility for indicating priority s part of this particular TCP. Comcast secretly used a different system. Proviers must use standard mechanisms – it it doesn’t like them it has to bring its problem to the IEPF along with proposed solutions. When they participate, they agree to do so according to the standards of the internet as a whole.
Although the focus of our “Practical Lawyering in Cyberspace” class has been the approach the attorneys took, rather than the substantive issues they tackled, I can’t help but get sidetracked this week. We were dealing with the Zango v. Kapersky Software case, whereas a spyware purveyor sued an anti-virus software seller for blocking their program. They claimed that Kapersky was interfering with the volitional act of their customers in downloading the software, when they know well the entire aim of their company is to make certain the download is not on purpose. They have to – virtually noone downloads adware knowing that it is adware.
To be fair, they are required to do so as part of a package deal wherein they get free software. But a stupid dress-up doll (Zwinky) or simple program like a game or screensaver is not such a grand program that many would be willing to be constantly interrupted with pop up ads in exchange for them. Instead, they rely on buried EULAs, euphemistically phrased, to get “consent” and then bank that the end-user will be unaware where the sudden ads are coming from. Evidence of this can be seen in the company’s evolution; like other spyware, Zango began as a completely non-volitional download which blocked itself from being uninstalled. You don’t do that if you think customers will willingly make such exchanges.
It is only through back and forth struggles with the FTC, Attorneys General, etc that they have evolved at all. They have been required to clearly disclose and get affirmative consent, not bury the agreement in those huge boxes that no one ever reads. Of course, the clear warning only discloses that you get a “free toolbar” with the download; the malicious nature of the program is concealed as much as legally permissible. According to Ben Edelman’s recent research, they are not complying with the FTC order and are still falling far short of even these pseudo-disclosures.
Why does this stuff have such a visceral impact? Is it residual ire from purging these programs from my own, friends’ and family computers? I would remove, they would re-install, operate covertly, fight me all the while. I think my hatred remains. Perhaps I should make use of this in my career/education, and funnel it into things such as this post. Indeed they are tempting me away from my other reading, so with this I must sign off.
Is the argument that Google seeks to make money (presented in both complaints for McGraw-Hill and Author’s Guild) effective considering the plaintiffs also seek to make money through exercising their copyrights or engaging in other deals? Generally, how should plaintiffs approach arguments in their complaints that may also undermine their own claims?
I’m not really sure how this would undermine their claims within the scope of copyright law. As owners of the copyright, plaintiffs are entitled to profit off of the works, and indeed the level of profit they may receive (or lose) strengthens their claim on fair use. (The fourth fact the courts look at is “effect on the works value”)The profit that Google stands to make likewise stregnthens plaintiffs’ case, as the “purpose and character” of their use is also looked at. In this mushy test, the more commercial a use, the less it looks like fair use.
I think that the question here is less one of weakening their own claims and more one of proper audience. Even though to the layperson the profit motive may appear to weaken McGraw-Hill’s case, this impact would not really be seen on a judge or a properly-instructed jury. Which brings us into the tangential issue of how much the court of public opinion matters.
In my view, public opinion is going to be dealt with through press releases and news stories. How many lay people (OK, excluding my husband) read court documents? I don’t think a perceived double-standard rises to the level required to be posted on the Smoking Gun. So, for the audience that really matters, this strategy seems sound.
Even so, the plaintiffs do emphasize the educational nature of their business, de-emphasizing their status as a for-profit corporation. In my opinion, this evidences the fact that overall impression matters even outside the legal issues themselves and the facts directly relevant to them. Judges and juries are still human, and psychology will always be a part of brief-writing.