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the only thing i dislike about this board at times... it seems that it wasn't a big deal when i first joined, but now the biases is just outright crazy

glad im not the only one that thought so...
:(

I'm not saying I cheer Apple either; not thrilled about the implied threat towards Palm about multitouch. However at least Apple is actually using their patents.
 
the only thing i dislike about this board at times... it seems that it wasn't a big deal when i first joined, but now the biases is just outright crazy

glad im not the only one that thought so...
:(

It's true that it has increased, but this is an Apple forum you know.

Anyway, to be quite honest, I don't have any problem with Apple losing the lawsuit. It doesn't make any difference to me unless it puts them out of business or stops them from selling the product. What I disagree with is the ability to hoard something without having to develop it—namely domains, and patents. I can understand if you hold a patent for an idea that you can't complete, but be willing to sell it to someone instead of just existing to sue them. I'm sure that if Opti had gone to Apple and said, "you're infringing our patent but we'll sell the patent to you," Apple would have paid. If not, then you can sue.

It's obviously different if you have developed it. Then you just sue because you can't exactly sell everything to them and stay in business—if that's your plan anyway. Apparently it wasn't Opti's plan.
 
Please, just everyone stop. I understand that most people don't know patent law, but a lot of misinformation is being spread here that needs correcting. I am a patent attorney, so I'll try to clear some of this up.

[...]

3. A patent is kinda like a piece of land. If you own it, the law doesn't require you to do anything with it. You can take care of it, keep people off it, or let it sit neglected for years - whatever you want - it's YOUR land. This is the reason there is no "use" requirement. Would you want your neighbor saying you had to use your property to say - grow corn - or let them cross it when they wanted to ("restrictve covenant" issues excepted for you other lawyers out there)? The one requirement is that if you know someone is walking on your lawn, you can't let them keep doing it until they've really damaged it and then bring suit (this defense is called Laches).

[...]

I'm not a lawyer, but it would seem that there is an aspect of that last point which makes the analogy to land somewhat unfortunate. With land there is the concept of "adverse possession". Someone can occupy your land without your permission, and if they do it openly, and you don't do anything about it, after a period of time the land can become theirs...
 
I'm not a lawyer, but it would seem that there is an aspect of that last point which makes the analogy to land somewhat unfortunate. With land there is the concept of "adverse possession". Someone can occupy your land without your permission, and if they do it openly, and you don't do anything about it, after a period of time the land can become theirs...


You do not understand adverse possession as you would not because you are not a lawyer. Adverse possession is extremely rare due to the required elements needed to be proven. More so the fact that Opti did do something defeats your argument about adverse possession.

What Pxc said was spot on. I am not a patent lawyer, I did not pass the USPTO exam, however I am a lawyer for a nlj250 firm who understood the comparison he was making.

What Apple did was theft. Damages were awarded. Patents do not have to be used, they give the inventor 20 years to do what they wish with it.
 
You do not understand adverse possession as you would not because you are not a lawyer. Adverse possession is extremely rare due to the required elements needed to be proven. More so the fact that Opti did do something defeats your argument about adverse possession.

What Pxc said was spot on. I am not a patent lawyer, I did not pass the USPTO exam, however I am a lawyer for a nlj250 firm who understood the comparison he was making.

What Apple did was theft. Damages were awarded. Patents do not have to be used, they give the inventor 20 years to do what they wish with it.

I understand concept of adverse possession, and I understand the comparison that was being made...

You seem to be saying that adverse possession cases are rare and involve proving more elements than I listed. With regard to the latter, I wasn't being exhaustive (and didn't indicate I was), I was just making an argument (the crux of which you didn't address). With regard to the latter, articles such as this:

http://www.denverpost.com/ci_7557747

would indicate that you are incorrect.
 
To write in the words of iRobot2003

"yes and let us not forget that property is property and a patent is a patent" Yes, that's why they have different names.

It's just a comparison he used to outline certain similarities, and while I'm sure he is pointing out another similarity to this case and the similarity through another characteristic of land ownership...it's not one you would have made unless psxndc made his lovely real world comparison to something we could all relate to.

If he made it to say dental floss, you wouldn't have drawn your outside the box comment from that head of yours and posted it as an argument...heck an argument on a comparison based on a couple of characteristics, you Apple users are a crazy lot.

Sorry your argument is invalid.
 
This is the reason Apple needs to patent everything they make in every little detail, so when they get sued like this, they can fight back.
 
This is the reason Apple needs to patent everything they make in every little detail, so when they get sued like this, they can fight back.

The thing is, patent protection is a negative right - I can stop someone from doing something, but having a patent doesn't actually affirmatively give me the right to do anything. For example, if I had a patent on steps A, B, C, and D and someone else has a patent on steps A, B, and C (step D is what made my invention new), the other person could still sue me for doing A, B, and C. My patent doesn't give me the right to do anything, except the ability to just stop others from doing A, B, C, and D.

I'm not a lawyer, but it would seem that there is an aspect of that last point which makes the analogy to land somewhat unfortunate. With land there is the concept of "adverse possession". Someone can occupy your land without your permission, and if they do it openly, and you don't do anything about it, after a period of time the land can become theirs...

No offense, irobot, but I don't really understand your point. You are correct - adverse possession allows land to become person B's when they've been "openly and notoriously" in possession of person A's land for a certain period of time - usually 15 - 20 years, but it varies state to state. In the analogy I gave, laches, although a different concept, achieves a similar result. If you came onto my land (or infringed my patent) for several years and I knew about it, I couldn't just sit around and do nothing and then years later sue you. Under adverse possession, the land would be yours. Under laches, I would be prevented from bringing suit against you - in effect, the right to use that technology would become yours. Different doctrines, but similar results. Again, I'm sorry if I missed your point - I'd be happy to discuss the analogy further if you want, but ultimately it was just an analogy to help everyone relate to concepts.

The most basic change that should be made to the law would be to force the plaintiff to bring the case up in jurisdiction where alleged infraction took place. This would be just like what usually would happen in a criminal case. You should not be allow to shop around for a court known to be more favourable. How can anyone say that the jury is a jury of your peers in society if you are forced to defend yourself in another state?

There is jurisdictional reform in the Patent Reform Act of 200X (where X is the last 3 years because it keeps getting gummed up in the legislature). That said, the counterargument is: was an Apple computer sold in Texas? yes? Then infringement took place in Texas as much as it did anywhere. Similarly, Apple as a corporation knowingly sells computers in Texas. As a result, Texas citizens should be allowed to bring suit against Apple in their home state. What it sounds like you really object to is companies like Opti setting up an "office" in Texas which is usually just a closet and incorporating there just so they can bring suit in Texas. That's a different ball of wax and for that, you'll need to call your congressperson/senator.

I can understand if you hold a patent for an idea that you can't complete, but be willing to sell it to someone instead of just existing to sue them. I'm sure that if Opti had gone to Apple and said, "you're infringing our patent but we'll sell the patent to you," Apple would have paid. If not, then you can sue.

After my initial post, I re-read the Ars article. Apple was found liable for willful infringement, so it is pretty much guaranteed that Apple was approached ahead of time, especially in light of a case a couple years ago (Seagate) that dramatically raised the bar for a finding of willfulness in infringement. Now it is a standard that the infringer show "objective recklessness" in their infringement, so I'm sure Opti approached them before filing the suit.

This may be one of the best posts I've ever read, anywhere! Thanks!

Thanks. I try to be helpful. I used to post similar stuff on slashdot a couple years ago but just gave up after a while. I can't tell which they hate more over there - Microsoft or Patents or the government. Anyway, if people have more questions, I'd be happy to try and answer them (although, again, none of this is legal advice)

And in case anyone wonders: I am not siding with Opti or Apple on this. I know virtually nothing about the case or what transpired. I am not a fan of NPE's ("non-practicing entities" - saying "troll" is frowned upon in court) but currently they are allowed to do what they do under the law. If you feel that they are an impediment to progress - and there are certainly reasons to think so - by all means contact your representatives and senators to change the law.
 
After my initial post, I re-read the Ars article. Apple was found liable for willful infringement, so it is pretty much guaranteed that Apple was approached ahead of time, especially in light of a case a couple years ago (Seagate) that dramatically raised the bar for a finding of willfulness in infringement. Now it is a standard that the infringer show "objective recklessness" in their infringement, so I'm sure Opti approached them before filing the suit.

Very interesting. Thanks a lot for the information! You're really helpful!

I guess Apple played the "we're bigger than you" card and lost. I still don't like the practices of Opti (since their mission statement implies that suing for money is their only way of existence), but I do wonder what they approached Apple with.

Willful infringement doesn't imply that they were offered a chance to buy rights though, does it? Would something along the lines of a cease and desist count?

I'd also be curious to know what happened in the Seagate case. Do you happen to have a link for info about that? If it's not handy or not easy to find, don't worry about it.
 
No offense, irobot, but I don't really understand your point. You are correct - adverse possession allows land to become person B's when they've been "openly and notoriously" in possession of person A's land for a certain period of time - usually 15 - 20 years, but it varies state to state. In the analogy I gave, laches, although a different concept, achieves a similar result. If you came onto my land (or infringed my patent) for several years and I knew about it, I couldn't just sit around and do nothing and then years later sue you. Under adverse possession, the land would be yours. Under laches, I would be prevented from bringing suit against you - in effect, the right to use that technology would become yours. Different doctrines, but similar results. Again, I'm sorry if I missed your point - I'd be happy to discuss the analogy further if you want, but ultimately it was just an analogy to help everyone relate to concepts.

Reasonable reply, no offense in it...

My take on that section of your post was that you were making an analogy to land, albeit noting that the analogy wasn't perfect with an example. The point I was making was that there was a more telling exception, and given that some folks seemed to be arguing that the patent holders rights should be diminished in some way because they waited so long to contest things, it seemed to be an unfortunate analogy to make... my belief is (perhaps incorrect) that there is no concept of losing ones right to defend ones patent based on earlier inattention.

Anyway I don't know anything about the case, although based on later posts (yours actually) it seems that the patent holder did notify Apple some time ago, so even if there were some loss of rights due to "negligence" it wouldn't be at issue here.

By the way, I believe (don't know if I'm recalling this exactly) that in Texas adverse possession starts kicking in after 5 years, so it can be a relatively short period of time.
 
By the way, I believe (don't know if I'm recalling this exactly) that in Texas adverse possession starts kicking in after 5 years, so it can be a relatively short period of time.

I looked into the Texas Adverse possession laws (5 years seems awfully short), and there is in fact a scenario that prevents someone from challenging your ownership of it, but you do need to meet certain requirements, e.g., you must have a title to the land (though title could be defective). There are other scenarios where you don't have title, and those are longer periods, but that is neither here nor there.

My take on that section of your post was that you were making an analogy to land, albeit noting that the analogy wasn't perfect with an example. The point I was making was that there was a more telling exception, and given that some folks seemed to be arguing that the patent holders rights should be diminished in some way because they waited so long to contest things, it seemed to be an unfortunate analogy to make... my belief is (perhaps incorrect) that there is no concept of losing ones right to defend ones patent based on earlier inattention.

Anyway I don't know anything about the case, although based on later posts (yours actually) it seems that the patent holder did notify Apple some time ago, so even if there were some loss of rights due to "negligence" it wouldn't be at issue here.

There is no penalty for failing to enforce your patent rights. I can sue you 10 years after you started infringing if I didn't know about it.

Those are broad statements and with anything, there are exceptions.

There is a statutory limitation on the damages you can sue for. If someone was infringing for the last 10 years and you didn't know about it, you can still only get damages for the last 6 years. I don't know why it's 6, but it is. See 35 U.S.C. Section 286

As I mentioned before, if you know the other person is infringing, the clock starts running for you to bring suit. Delaying by more than 6 years raises the presumption that you have basically allowed their infringement and they've relied on that allowance and kept infringing. As a result, you will be barred from bringing suit against them. That is called laches. You can still sue anyone else, it is only a bar to that particular infringer.

Back to your point, there is a problem with the analogy in that - as with all intellectual property - use by one person does not diminish the property necessarily for another. While you may claim to have "adversely possessed" my patent by using it for some period of time (let's assume I did know about and laches has kicked in so I can't sue you), I can still sue other infringers and the property is not out in the public domain until the patent expires. If you adversely possessed my land, however, it's yours - I have no rights to it anymore and YOU can go kick people off it, etc. Land is unique and there is only one piece of it. Intellectual Property can be used by many people all simultaneously. So in that sense, yes, there is a flaw in the analogy, but consider this - real property, with its limited space, is easily policeable. You can go on the land and easily determine if someone else is using it. Intellectual property is not. I can be infringing your patent and even if you searched high and low, you may never know about me. Is this a reasonable tradeoff? I leave that an an exercise to the reader.

-p-
 
I guess Apple played the "we're bigger than you" card and lost. I still don't like the practices of Opti (since their mission statement implies that suing for money is their only way of existence), but I do wonder what they approached Apple with.

Not necessarily - I don't know if the willfulness was from the initial contact forward, the filing of the suit forward, or what. Just that at some point Apple knew about the patent and continued to infringe. It could have been from when they were first sent a cease and desist, they decided they didn't infringe (which is a possibility) and they continued to sell computers because that's their business. From the Ars article, it's not clear when the willfulness began.

Willful infringement doesn't imply that they were offered a chance to buy rights though, does it? Would something along the lines of a cease and desist count?

Actually, it usually does. For willfulness to apply, they have to - now - show objective recklessness in their infringement, so they almost assuredly were sent a C&D first, or at least a "Hey, we have a patent. You should consider licensing it. Let's talk" letter.

I'd also be curious to know what happened in the Seagate case. Do you happen to have a link for info about that? If it's not handy or not easy to find, don't worry about it.

Patently-O is a pretty good site. Here's a link to their short write up, though if you want to read the opinion, click through to Seagate I and then click "read the opinion." The "CAFC" is the Court of Appeals for the Federal Circuit. All patent appeals, no matter where original tried, go here. The only court higher than it for patent matters is the Supreme Court.
 
I'm fully aware of what the law is, I just get tired of seeing companies file a patent and do nothing with it, only so they can turn around and sue someone later. The RIM case a few years ago comes to mind.

I think RIM was a bit unusual. There were two companies actively trying to develop the same technology and bring it to the market, both getting patents on the way. One was successful in the market, the other failed. Since they both had patents, the failing company sued the successful one for patent infringement. The successful company couldn't countersue, because the failing company didn't actually have a product. So the losers got a few hundred million from the successful company. Had it been the other way round, if RIM had failed in the market, they would have sued for patent infringement and would have won just the same.
 
That wouldn't help in cases like this, where someone invented it before them.

It may help against patent trolls who without doubt have examined the iPhone closely and have tried to patent anything they found. The trick is once you've got a patent, even if you got a patent on something that someone else actually invented, defending against that patent costs lots of money, and in Texas you are likely to lose even if you can prove that the patent troll copied your own invention.

99 percent of all patents out there are rubbish. One of the worst examples that I found: In the early eighties, both Motorola and Intel added "compare and swap" instructions to their processors. When I got the instruction manual for the 68020 processor, it took me about five minutes to figure out that you could use these instructions to implement locks in a multi-processor system. I know that other people, just computer science students, figured this out for themselves as well. I have a Motorola manual from 1985 and an Intel manual from 1986 explaining these instructions in detail. In 2000, a company managed to get a patent for this. For a technique that must be known to thousands and thousands of people. I'd be looking forward to them suing Motorola and Intel for daring to use the technology that this company invented in 2000 for the last 25 years.
 
Not necessarily - I don't know if the willfulness was from the initial contact forward, the filing of the suit forward, or what. Just that at some point Apple knew about the patent and continued to infringe. It could have been from when they were first sent a cease and desist, they decided they didn't infringe (which is a possibility) and they continued to sell computers because that's their business. From the Ars article, it's not clear when the willfulness began.



Actually, it usually does. For willfulness to apply, they have to - now - show objective recklessness in their infringement, so they almost assuredly were sent a C&D first, or at least a "Hey, we have a patent. You should consider licensing it. Let's talk" letter.



Patently-O is a pretty good site. Here's a link to their short write up, though if you want to read the opinion, click through to Seagate I and then click "read the opinion." The "CAFC" is the Court of Appeals for the Federal Circuit. All patent appeals, no matter where original tried, go here. The only court higher than it for patent matters is the Supreme Court.

Thanks a lot! I'll check it out!
 
99 percent of all patents out there are rubbish.

I wholeheartedly disagree. There are bad patents, just like there is bad code, bad art, bad cooking. But to say 99% of anything is rubbish is being a little hyperbolic.

And can you link to this rubbish patent you are referring to?
 
In other words, this is just another patent troll ******* who makes their living by patenting everything they can and then suing high-profile targets in the hope of a big fat payout.

Oh, you mean like Apple does themselves by patenting everything imaginable? Apple is one of the most greedy companies I've ever seen, even making Microsoft look tame by comparison. I may like some of their products, but I do not like the company and I get sick of seeing fanatics defend everything they do, no matter how wrong and worse yet no matter how hypocritical it is when the tables are turned and Apple is the one suing for breach of one of their patents. Suddenly, Apple are the good guys on that side of the fence too. It's unbelievable, but then that's the definition of fanaticism and Apple has more of them than any other platform. Apple can do no wrong in the eyes of a fanatic. Everything they do is great and everything anyone else does that remotely tries to compete with them are apparently scum. :rolleyes:

The US patent system is in very, very dire need of reform.

This I can agree with, but the door swings both ways. Everything is over litigated in this country and like the tax code, you pretty much have to hire a specialist to sort it all out. You should be able to easily do your own taxes without missing out refunds due and you shouldn't need a lawyer to defend yourself or your company against bullying companies (which suck you dry of cash and so you end up losing regardless of the outcome) and that includes Apple. Corporations have had their time ruining this country and it's high time the people take their country back and let it serve them and not just the corporations.

However, it's the copyright law that is truly based in the stone ages in this country. It was never designed for the digital age and the short shelf lives that come with it. Just look at all the abandonware games from the '80s and '90s out there that legally no one can touch. Programs like MAME try to preserve things like arcade games, but copyrights pretty much get in the way for the consumer that wants to behave lawfully at all times. You can't buy many of the games and you cannot legally copy them either. It's ridiculous and yet there are those that just say too bad. The owners (where they might be...Siberia maybe) have the right to let them all die. Yeah, that's not why copyrights were created. All publicly released works are supposed to eventually go public domain, not be lost in time because the circuit boards are all dead by the time the copyrights expire. Of course, if people like Disney had it their way, nothing would ever become public domain...at least nothing Disney owns. Corporate greed knows no bounds and apparently no time constraints either. Imagine if all the great classical music in history were lost because it was all privately owned forever. The spirit of the law is not served in the modern age and pure Capitalism is just as bad as pure Socialism. Moderation in all things is the key. Extremists and particism are no good to anyone except themselves. Fairness should be the order of the day for either/both side(s) of an issue.
 
Does Apple write any of their own software anymore? Do they just assume that everything is open source?
 
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