Technically Legal

The Supreme Court has, at least temporarily, established a two day delay in the broadcast of the Prop. 8 Trial.

The Supreme Court is still considering the issue, but for now it will not allow the trial to be simulcast anywhere outside of the courthouse where the trial is taking place.

While the decision isn’t final, only one Justice dissented, which bodes poorly for the current Supreme Court ever allowing live broadcast of their own proceedings.

Comments Off Posted in: Links on January 11, 2010

Today on TechDirt, Mike Masnick wrote a post titled: Supreme Court Considers Case Over Using Copyright Law To Block Import Of Gray Market Goods. Mike is usally pretty good about getting the law right, but we thought this could use a little clarification.

The case (PDF of the opinion) was decided by the 9th Circuit in September 2008. In involves whether Omega, the watch company, can use US Copyright Law to stop the importing of grey market goods – products that are made by Omega, but not imported using a certified Omega importer.

After the 9th Circuit decision, Costco peititioned the Supreme Court to hear the case. Right now the Supreme Court hasn’t decided to hear the case. What they have done is ask the US Government (through the Solicitor General) to weigh in on whether they should hear the case. The case docket doesn’t indicate that the Solicitor General has submitted a brief yet.

So, currently it’s up in the air as to whether or not the Supreme Court will hear the case.

Comments Off Posted in: Analysis, Links on January 7, 2010

This afternoon I came across Martin Goetz’s guest article on the patent law blog Patently-O.  As a long-time software developer and recipient of the first software patent issued, Goetz provides an interesting perspective on the ongoing software patent issue presently before the Supreme Court.

As lawyers, we’ve been trained to think from the legal perspective.  This sometimes contrasts sharply with the laymen understanding of why particular laws exist and why they function as they do.  In the last couple years, I can recount multiple watercooler conversations with non-lawyers, including software engineers and corporate executives,  who have difficulty understanding the unique problem of patenting software inventions under the current standard imposed by the Federal Circuit (the “machine or transformation test“) and the close relationship to non-patentable abstract ideas.

Often, their frustrations can be simplified to: “it’s mine, I developed it with my own ingenuity and the sweat of my own brow, no one else has done it, therefore I merit a patent and the exclusive rights afforded under the law like other inventions.”  While each of these factors are among the recognized reasons in favor of issuing patents, they fail to address the precise problem found in the boundaries of non-patentable inventions and patentable subject matter when applied to software inventions.

Of course, not every layman’s justification I’ve heard falls short of addressing the problem.  In fact,  Goetz’s article confronts several core issues in the debate with a perspective based on development experience.  Though his article does not describe the legal problems, it attacks the notion that software is an abstract principle or idea through a variety of analogies and thoughtful descriptions of enterprise software development.  He notes that the similarities of software development to hardware development process and other physical items of manufacture which are clearly within the realm of patentable inventions.  Interestingly, Goetz also describes software as being closer to a machine than a mere abstract principle when one considers the amount of R&D, workmanship, problem solving, and necessary infrastructure required to achieve a functional high-technology product.

Overall, I appreciated the perspective from a seasoned practitioner in the trenches and recommend the read, especially if you already have a good grasp of the legal principles before the Supreme Court.   Though many of his arguments are compelling on certain points, the Supreme Court will likely focus on many of the nuanced patent principles in addition to other counterbalancing factors in their final decision.

Comments Off Posted in: Commentary, Links on December 2, 2009

Bilski, International Copyright Treaty, and Using Facebook as an Alibi

Please download the podcast, and e-mail us with comments, questions, or story ideas.

Bilski Arguments

Transcript
Analysis of Oral Argument

ACTA Internet Provisions

The ACTA Internet Provisions – DMCA Goes Worldwide

Facebook Alibi
His Facebook Status Now? ‘Charges Dropped’

Comments Off Posted in: Podcast on November 16, 2009

Today, the Supreme Court hears arguments on the Bilski case.

While you can’t (yet) listen to a live stream of the arguments, the transcript is here.

In the meanwhile, here’s a smattering of news and analysis, courtesy of Google News. If you’re in the mood for something more incisive, take a look at Gene Quinn’s analysis of Bilski.

UPDATE 3:00 PM: SCOTUS Blog has the first post about the Bilski argument. In short, no one on the Court supported Bilski’s patent, but whether the Court will address software patents is up in the air.

UPDATE 6:40 PM: The post now has links to the transcript above, and here.

Comments Off Posted in: Links on November 9, 2009

In Podcast 2, we spent a good amount of time talking about Bilski, a case the Supreme Court will hear next year about business method patents. Dominik went to some length to make sure that we knew that Bilski was not a software patent case, which is isn’t.

However, the standard in Bilski was recently applied to a software patent, and the judge found the patent invalid.

Bilski, and the fate of software and business method patents are in the hands of the Supreme Court now. We don’t expect a decision before December, at the earliest.

2 Comments Posted in: Links on July 10, 2009

Tony LaRussa sues Twitter, Yahoo sues the NFL, and patents go to the Supreme Court.

Download the podcast here.

Supreme Court Grants Cert. in Bilski

Method Men? Handicapping Bilski at the Supreme Court [The Prior Art]
Bilski v. Doll [ScotusWiki]

Yahoo Sues NFL Players Association

Yahoo sues NFL Players Association [SiliconValley.com]
The Complaint [scribd.com]

Tony LaRussa Sues Twitter

Tony La Russa Sues Twitter Over Alleged Fake Page [New York Times]
Not Playing Ball [twitter.com]
The Complaint

1 Comment Posted in: Podcast on June 9, 2009

Wired’s Threat Level blog posted an article titled “High Court Nominee Mirrors Industry Copyright Stance.” The post states that President Obama’s recent nominee for Justice Souter’s Supreme Court seat “is embracing the content industry’s party line.”

As evidence, they point to a 1998 opinion in which then-District Court Judge Sotomayor wrote that, “statutory damages must be sufficient enough to deter future infringements and should not be calibrated to favor a defendant by merely awarding minimum estimated losses to a plaintiff.”

First, we need to distinguish the case in which she wrote that opinion from the RIAA cases. The 1998 case dealt with taverns showing boxing matches without a license to show them. That is a wholly commercial use, unlike in the RIAA cases. Additionally, the infringement was willful, and the defendants defaulted on the case, meaning they did not even show up to court.

No one, not even Professor Nesson, questions the right of Congress to impose statutory damages that are greater than the actual loss suffered by the plaintiff. The issue in the RIAA cases is that actual losses are anywhere between 750 times and 150,000 times actual losses. The argument against the RIAA is that there is such a disparity as to make those damages unconstitutional. That issue was not before then-Judge Sotomayor’s court in 1998.

From one case, over 10 years ago, with very different facts from the RIAA cases, it is very difficult to know how she will rule if a case gets to the Supreme Court.

Comments Off Posted in: Commentary, Links on June 2, 2009