Lawrence Ebert says that my American article didn’t quite get the Federal Circuit’s obviousness test right:
Of the “specific documentation” point, Lee wrote: “[The CAFC] held that when a patent covers the combination of two elements, it can be declared obvious only if someone can produce another patent, an academic paper, or other formal documentation that pre-dated the patent application and had a specific ‘teaching, suggestion, or motivation’ to combine the elements in the manner described.”
Lee is wrong in stating that specific documentation must be found. In the CAFC case of In re Kotzab, decided in the year 2000 long before KSR v. Teleflex, the CAFC wrote:
“the teaching, motivation, or suggestion may be implicit from the prior art as a whole. rather than expressly stated in the references… In re Kotzab, 217 F.3d 1365, 1370 (CAFC 2000)”
I stand corrected. Mr. Ebert has a JD and I do not, and he doubtless knows this area of the law much better than I do. In my defense, however, I think I’m in good company: in oral arguments, the Supreme Court justices seemed pretty confused by the Federal Circuit’s precedents themselves. If Justice Breyer finds the TSM test confusing, I don’t feel too bad about getting it wrong myself.
In any event, I appreciate Mr. Ebert’s taking he time to point this out.
Ordinarily, my software patent series focuses on patents that have been granted by the patent office and the subject of litigation. I’m going to break that pattern this week because reader Richard Bennett pointed to one of his own patent applications as an example of a worthwhile software patent. Since I frequently ask supporters of software patents to point out a good one (a request that’s almost always ignored) I thought I’d analyze Bennett’s patent application to see what we can learn. Below the cut are my thoughts on it.
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I hope every TLF reader is also a Techdirt reader, but in case some of you missed it, I wanted to point out that Mike Masnick is doing a fantastic series on post-scarcity economics. Here’s a taste:
Throw an infinity into the supply of a good and the supply/demand curve is going to toss out a price of zero (sounds familiar, right?). Again, the first assumption is to assume the system is broken and to look for ways to artificially limit supply.
However, the mistake here is to look at the market in a manner that is way too simplified. Markets aren’t just dynamic things that constantly change, but they also impact other markets. Any good that is a component of another good may be a finished good for the seller, but for the buyer it’s a resource that has a cost. The more costly that resource is, the more expensive it is to make that other good. The impact flows throughout the economy. If the inputs get cheaper, that makes the finished goods cheaper, which open up more opportunities for greater economic development. That means that even if you have an infinite good in one market, not all the markets it touches on are also infinite. However, the infinite good suddenly becomes a really useful and cheap resource in all those other markets.
So the trick to embracing infinite goods isn’t in limiting the infinite nature of them, but in rethinking how you view them. Instead of looking at them as goods to sell, look at them as inputs into something else. In other words, rather than thinking of them as a product the market is pressuring you to price at $0, recognize they’re an infinite resource that is available for you to use freely in other products and markets. When looked at that way, the infinite nature of the goods is no longer a problem, but a tremendous resource to be exploited. It almost becomes difficult to believe that people would actively try to limit an infinitely exploitable resource, but they do so because they don’t understand infinity and don’t look at the good as a resource.
Of course, the concern is that information resources only become infinite after the first copy is produced, and that first copy might not be produced absent artificially constrained supply. But I expect Mike will argue that this condition occurs less often than the standard economic model suggests–that people can show surprising ingenuity in finding ways to profit from their intellectual creations even without the benefit of a legal monopoly.
I want to second Jim’s recommendation that you read his Regulation article discussing PFF’s new book on network neutrality regulation. He argues persuasively that each side in the network neutrality debate gives the other too little credit:
It is hard to pin down what exactly the Internet is. There are several versions, with convergence around the idea that the things making up the Internet can be described as a series of layers. At the bottom, there is the physical layer–the wires, cables, and fibers that Internet communications travel over. Next there is the logical layer, the routing rules that send packets of data from origin to destination. Next there is the application layer–the programs that people use to create content and send it from one place to another. (Think of e-mail programs, browsers, and the like.) Finally, there is the content layer. This is the actual material people send to each other in those e-mails, the websites that show up on their screens, and so on.
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I would quote this Ars article, but really, a picture is worth a thousand words:
As the priceless tagline to the story puts it: “Obscenity complaints to the FCC jumped 40,000 percent between August and September 2006. Shame on you, September! Don’t you know that our children are watching?”
What’s happening here, obviously, isn’t that the major networks decided to start running porn during prime time in September. Rather, groups like the Parents Television Council put out an action alert describing the filthiest moments in television they can find, and their members (the vast majority of whom probably didn’t even watch the show) send form letters to the FCC.
Over at IPCentral, Jim DeLong quotes a lengthy critique of the SFLC brief in the Microsoft v. AT&T case. The critique was written by one Greg Aharonian. A lot of it is the kind of legal inside baseball that I’m not really qualified to comment on, but there’s one theme that runs throughout the critique that’s just flatly wrong:
The first lie of Moglen’s brief is a big lie of omission. Nowhere in his brief does there appear the word “hardware”. It is unethical to talk about the patentability of software without simultaneously talking about the patentability of hardware, especially in light of hardware/software codesigns tools. And even using the word “hardware” is pointless unless you provide rigorous definitions of “hardware” and “software”. Moglen doesn’t. So when Moglen bases his software patent hatred on Benson:
“The holding of Benson is properly applicable to all software, because a computer program, no matter what its function, is nothing more or less than the representation of an algorithm.”
as well, he is arguing hardware patent hatred:
“The holding of Benson is properly applicable to all hardware, because a digital circuit, no matter what its function, is nothing more or less than the representation of an [Boolean] algorithm.”
This is silly. I would be very interested to see the boolean algorithm that is equivalent to, say, an LCD panel. Some characteristics of hardware can be described as equivalent to software algorithms, but other aspects (such as, say, the ability to display information to the user) cannot.
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Julian thinks that the president’s announcement that he’ll suddenly start running his NSA wiretapping program by the book smells fishy:
But as Orin Kerr notes there’s a big honking ambiguity in this new oversight: Justice department officials won’t clarify whether that means FISA will be ordering the familiar sort of case-by-case warrant based on individualized suspicion or some kind of blanket approval of the old TSP as a whole. Because if it’s the latter, that’s not oversight. That’s writ of assistance. It’s hard to read this transcript and not come away with that conclusion, and equally hard for me to fathom how such a general clarification could somehow be perilous to national security. The only reason I hesitate is that it seems odd that a FISA judge would sign off on so dramatic a departure from the normal rules of the game.
Quite a bit about this doesn’t smell right, actually. Suppose we are talking about real, case-by-case oversight. We were supposed to believe that the ordinary FISA process was too slow and cumbersome to allow intelligence agencies to hunt terrorists effectively, and for some reason it wasn’t possible to remedy this by normal legislative means–say, by asking Congress to extend the 72-hour window within which agencies can conduct emergency taps before securing retroactive approval. As Mark Moller notes, that seems still more dubious in light of this new announcement: How much can actually have changed in the process without any legislative action? Why would it take five years to make those changes, requiring the creation of a separate program in the interim?
Excellent questions. Given that the administration refused to even disclose the existence of this program until the press got wind of it, and given that they’ve suddenly become interested in following the rules once there’s a Democratic Congress around to provide real oversight, it would be crazy to take the White House at its word as to what the new procedure is. Congress needs to demand a full, public disclosure of exactly how this new FISA approval process works so we can judge for ourselves if the White House is playing fast and loose with the law.
I’ve got a good friend who’s a DJ (as a hobbyist), and I asked him for his thoughts on the copyright SWAT team story. I thought his comments were worth quoting:
First, the CDs contain recordings of DJ mixes (the story refers to them as “mixtapes”). A DJ mix consists of someone playing records/CDs/DATs and manipulating the inputs so as to produce a continous flow of music distinct from listening to each single sequentially. The manipulation may include scratching, EQing, sampling, drum machines, digital effects, and mash-ups. Therefore, a DJ mix is distinct from merely uploading/burning a folder of mp3s and distributing it. It’s a performance.
However, the performance is built upon copyrighted material from other artists. When a DJ buys a vinyl/CD/mp3 at a record store, he/she purchases the right of personal listening. Many records will say “Unauthorized public performance, broadcasting, and copying of this record prohibited” on the label. When DJs release professional mix CDs through a record label, they obtain legal permission from the copyright holders to include their tracks in the mix. Dance clubs pay annual fees to the two major artist organizations for public performace rights to cover DJs that play at their venue. Record shops that sell unauthorized mixtapes have been prosecuted for copyright violation, so most stores don’t sell them.
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Every week (more or less), I look at a software patent that’s been in the news. You can see previous installments in the series here. There haven’t been any big patent disputes in the news the last couple of weeks, so this week we’ll look at a patent that’s at the center of a lawsuit that was filed last August by Altnet against Streamcast. You can read about the long and tangled history of the two companies in the link above.
Here is one of the patents at issue in the case. It covers “Data processing system using substantially unique identifiers to identify data items, whereby identical data items have the same identifiers.” Here’s a description of how the patent differs from prior art:
In all of the prior data processing systems the names or identifiers provided to identify data items (the data items being files, directories, records in the database, objects in object-oriented programming, locations in memory or on a physical device, or the like) are always defined relative to a specific context. For instance, the file identified by a particular file name can only be determined when the directory containing the file (the context) is known. The file identified by a pathname can be determined only when the file system (context) is known. Similarly, the addresses in a process address space, the keys in a database table, or domain names on a global computer network such as the Internet are meaningful only because they are specified relative to a context.
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Radley Balko, who has tirelessly publicized the problems created by the promiscuous use of SWAT teams, reports that federal police in Atlanta have used a SWAT team to help the recording industry enforce copyright law. Even worse, the target wasn’t even a commercial piracy operation:
Last night, a federal SWAT team assisted the RIAA in a raid on the studio of Atlanta musician DJ Drama.
This local news report says the locally famous mixtape DJ is under investigation for piracy. But Drama’s supporters say the DJ is a mix artist, not a bootlegger. They say news footage of the raid shows RIAA officials boxing up only recordable CDs filled with mixes, not bootlegs of retail CDs (the local news reporter seems to conflate the two as well).
Assuming for a moment that RIAA and federal officials do indeed know the difference between a mash-up DJ and a bootleg operation, and that they did find evidence of actual piracy in the bust, there’s still the problem of why RIAA officials were participating in a police action, and why a SWAT team was used to raid a professional studio under investigation for a nonviolent, white-collar crime.
Quite so. It’s not like this is a fly-by-night operation selling CDs out of the back of a truck. This is clearly not the sort of problem that justifies dramatic police raids. If the RIAA thinks DJ Drama’s activities violate copyright law, they have plenty of civil law remedies available that don’t involve Gestapo tactics.
Also, check out the gratuitous smearing of the two as drug dealers and gangsters. A police officer comments that “In this case, we didn’t find drugs and weapons, but it’s not uncommon for us to find other sorts of contraband when we execute a search warrant.”
If they didn’t find drugs or weapons, why did this factoid merit a mention in the story?
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