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.
