Friday, August 19, 2011

The Patent Arms Race May Only Be Beginning: Technology Giants Wage Intellectual Property Rights Wars

Patent Wars? Intellectual Property Battles?

Is that what the founders of intellectual property law envisioned?

Or is that where failed legislation and disastrous judicial decisionmaking have brought us?

Ciara O'Brien at the Irish Times has nice piece titled Technology giants wage war with patents.

The Secret of a Long and Happy Life: Douwe Draaisma Writes About How the Memory of Our Brain Works and How We Can Change Our Behavior to Live Better and More Courageously

Douwe Draaisma is a Dutch psychologist and Professor at the University of Groningen. He writes about how the memory of our brain works and what we can do with our memory to make our lives better.

I ran across his article in German as "Das Geheimnis eines langen gl├╝cklichen Lebens" in the current edition of the woman's magazine Brigitte (12/2011) which my wife obtained for me, knowing my interest in the subject. See also Draaisma and Unser Leben ist Erinnerung (Our Life is Memory) at Brigitte-woman online.

What Draaisma writes about is among the most important of all subjects: our memory, our life, and how we can make it better, and even extend it, happily, by living more courageously and opening ourselves to new experiences. Happiness is a matter of the moment! Sound familiar?

Draaisma writes that almost everyone remembers their first 18 years of life about as well as all the rest of the years of life put together. Why is that so?

The key is that everything is new when we are young, whereas things become "old hat" as we grow older.

Experiencing new things in later life keeps our brain young.

Draaisma says that a long and happy life can more likely be achieved if we change our patterns of behavior and live more courageously, yes, even wilder, as we grow older. Most people do the reverse.

It has to do with how our MEMORY functions. That is why holidays away from our own four walls can be so refreshing. Our brain needs new inputs and our nerves need new surprises. How about an adventure vacation? Absolutely.

Repetition, on the other hand, compresses time and shortens our life.
To lengthen our life, we must get out of our routines and do new things.

Land of the Free, Home of the Poor | PBS NewsHour | Aug. 16, 2011 | PBS

Land of the Free, Home of the Poor | PBS NewsHour | Aug. 16, 2011 | PBS
"[E]verybody in this country owes their good fortune in some way to the rest of the country." - Warren Buffett

A Learning-Centered Life Driven by Questions: David Brooks at the NY Times on Philip Leakey

Who needs civilization?

Take a look at David Brooks in Rift Valley, Kenya, reporting on Philip Leakey in The Question-Driven Life.

Here is the teaser. Brooks writes:
"There are certain people whose lives are permanently shaped by their frontier childhoods."
Hat tip to CaryGEE.

The Big Bad Patent World: Nokia Riding High After Patent Action Against Apple Results in Settlement: What is Wrong at Apple?

The big bad patent world is alive but not well in the mobile phone industry.

We have been scouring the news to find reasons for Apple's currently berserk actions on the tablet and mobile phone market.

One reason is surely that Apple has just settled the losing end of a bruising, worst ever patent battle over mobile phones with Nokia.

The settlement of a very expensive patent infringement action brought by Nokia may run near to $700 million in a one-time payment, PLUS very high on-going payments in the future on a licensing basis.

That is lots of money that Apple might be trying to get back by suing others and staking out as much of a monopoly position as possible in the tablet and mobile phone businesses. After all, proprietary monopoly and over-priced products as a result of monopoly has been the modus operandi of the business ever since it started.

Perhaps the faltering Apple PC business is also playing a role. Well, that will ultimately be the destiny of all Apple products down the road, since the open, not closed, products always win in the end.

For more details of the settlement,

Kate Solomon, Business Insider - Apple Paying Nokia $715 Million Upfront To Settle Patent Dispute, Estimates Analyst

FOSS Patents

NOKIA - Nokia enters into patent license agreement with Apple

In addition, Apple and Samsung have been embroiled in other acrimonious litigation. See

Kate Solomon - Apple accuses Samsung of harassment over iPhone 5 demands: Copycat patent case gets heated


Firm founder Steve Jobs is on medical leave and the company may thus now be in the hands of people who do not really care about Apple long-term or are only interested in short-term advances in which they may share profits.

Or, there may be another reason or even Jobs himself behind the scenes.

See Patrick May, San Jose Mercury News, Apple co-founder Steve Jobs' biography coming sooner than expected. Although it is claimed that the appearance of the bio has nothing to do with Jobs's health, pancreatic cancer is problematic, even though Jobs is only 56. Perhaps this is his final flourish, though I am not sure it would be the right ending, if that were the case, leaving a very bad image in the eyes of the world.

Jobs has always placed a great value on aesthetics, but what Apple is currently doing has nothing to do with aesthetics. Far from it.

Strike Three: The Beginninng of the End for Apple as it Seeks EU-Wide Ban on Samsung's Galaxy Line

There is an old tried and true rule in the merchant trade and that is that "nobody is bigger than the market".

As can be seen from this report at CNET:

Apple seeks EU-wide ban on Samsung's Galaxy line.

There must be some very serious problems at Apple for them to be taking this absurd line of action.

Companies such as Apple may be surprised to know that your average consumer could care less about Apple's alleged intellectual property rights and the decision that some uninformed court in Germany has issued.

Consumers see how THEY personally are affected, and all they see is that Apple is trying to remove competitors from the market, competitors who have a BETTER product, so that consumers are forced to become Apple customers and buy over-priced and over-hyped Apple products that are inferior to the Samsung products being offered on the market.

Dear folks at Apple, that is not going to happen. You can be sure.

Nobody is bigger than the market, and the market is us.
We do not permit ourselves to be forced by anyone.

We posted the following at Twitter previously.

"Apple? MY TABLETS say: You shall not steal. You shall not covet anything that belongs to your neighbor. Three strikes and out."

Apple has stolen the tablet design from prior art, as we have posted at LawPundit previously, breaking one of the Ten Commandments "You shall not steal". Apple than broke a second commandment: "You shall not covet anything that belongs to your neighbor", by trying to obtain the market rightfully in the hands of Samsung, and also other tablet product manufacturers. And now, Apple's behavior breaks a 3rd commandment: "You shall not make for yourself an idol", by asking for an injunction in the Hague for an abolition of all Samsung Galaxy products in Europe and for 3rd parties to obey Apple instructions or be subjected to legal action. Apple has lost it.

Strike three.

That is the beginning of the end for Apple. Anyone who behaves this way in a modern market has no future.
Customers will reward you by not buying your products. You will see.

And, as in the case of this writer, customers will be buying some Samsung products in the future.
What do you think, that only Apple will be able to produce tablets in the future? No way.

The Solution to the Legal Chaos in Intellectual Property Law: A Special 90% Tax on Intellectual Property Earnings

If we approach the current intellectual property law situation, the best word to describe its status would be chaos. It is a mess. Worse, it is a mess that offers no solutions through the application of traditional ways of looking at patents, designs, copyrights and trademarks.

The ultimate solution is not to change the intellectual property laws or judicial precedents -- which would be a time-consuming, inefficient and unpleasant process.

Rather, the solution is to take full notice of the horrendous situation as it is, recognizing at the same time that intellectual property laws are permitting windfall profits and societal costs far out of proportion to what is envisioned by the provision of the U.S. Constitution granting intellectual property rights.

Authors and inventors should get their "just" rewards and those rewards should be reasonable. Whatever the income from intellectual property, everything beyond reasonable should be taxed, thus providing a new source of income for the federal government to promote Science and the useful Arts, which is the mandated objective of the applicable Constitutional provision.

Here is the legislative proposal:

"As provided for in the U.S. Constitution, authors and inventors retain the exclusive right -- also in the future -- to exploit their writings and discoveries.

However, as has become clear in the modern era, the costs to society of protecting these rights has become immense, and often far out of proportion to the benefits accrued.

Worse, the assertion of these rightd is greatly hindering "the Progress of Science and useful Arts", which the applicable U.S. Constitutional provision is intended "to promote".

Indeed, and paradoxically, the current legal application of this provision of the U.S. Constitution is thus directly contradicting its very purpose. This can not be permitted as a matter of law.

Lastly, through the sale and assignment of intellectual property rights, such rights are no longer being exploited by and are not accruing to the original authors and inventors, but rather, have become powerful instruments of extortion for third parties who have contributed nothing to either Science or the useful Arts and whose benefit is not foreseen by Article I, Section 8 of the U.S. Constitution, which specifically provides:
"Section 8 - Powers of Congress
The Congress shall have Power ...

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; ...".
Accordingly, the legal implementation of this provision in according authors and inventors exclusive rights in their respective writings and discoveries can not have as a consequence that the progress of science and the useful arts is impeded rather than promoted, which is the current state of intellectual property law.

Any legal implementation of the above Constitutional provision that runs counter to its dictates is thus in fact unconstitutional. One can not invoke one part of the same Constitutional clause and disregard the other. That is not the way that statutory interpretation works. Words have a meaning and they must be heeded. Congress can only enact legislation with regard to the intellectual property clause of the Constitution if its lawmaking serves "to promote the Progress of Science and useful Arts". If Congressional legislation is leading to a negative result in this regard, such legislation is void.

In order to correct this situation swiftly and effectively, therefore, an intellectual property tax is herewith declared, effective immediately and applicable to all patents, designs, copyrights and trademarks, such tax to amount to 90% of any and all patent, design, copyright and trademark license and royalty fees earned, patent, design, copyright and trademark actions and settlements won, and any other income accrued and attributable to the exercise of patent, design, copyright and trademark rights. This tax is to be assessed before the imposition of any other taxes, such as, for example, income tax, which is to be assessed on intellectual property rights earnings only after imposition of the intellectual property tax of 90%, which is to accrue to the Treasury of the United States in a special account to promote Science and the useful Arts.

Such a tax is to be imposed pursuant to that same Article I, Section 8 of the U.S. Constitution, which specifically provides:
"Section 8 - Powers of Congress
 The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; ..."

Trekkies! Is iPad2 a Copy of the Star Trek PADD? ZDNet Comments Samsung and Apple Injunction Battle over Galaxy Tab 10.1 and Apple iPad2 as Steven J. Vaughan-Nichols Lambasts German Court

Is the Apple iPad2 nothing more in its basic design than a modern copy of the flat rectangular version of the StarTrek PADD?

Although LawPundit has already commented in depth on this topic in prior postings, there is a wonderful article by Steven J. Vaughan-Nichols at titled: Apple gets Samsung Galaxy Tab banned in E.U. with moronic ruling.

Particularly of interest is the link there to the registered EU Community Design 000181607-0001 upon which the preliminary injunction is based. Take a look and don't laugh, or cry. As Vaughan-Nichols writes:
"I’ll tell you what I see, it’s a freaking tablet. Yes, it looks like an iPad. But, it looks just as much like every tablet that’s ever existed or ever will exist. It’s a tablet."
Read the rest of the article, especially for some links to earlier prior art in tablets, also in Star Trek, where they were called PADDs (Personal Access Data Display). This Star Trek PADD looks as if the iPad were copied right from it:

Indeed, already on July 13, 2011, prior to the injunction against the Galaxy Tab 10.1, wrote in Star Trek PADD app for iPad sees sci-fi tech come full circle:
"The fantasy technology of Star Trek has always been ahead of its time and has very much inspired future generations. You can see the influence of Gene Roddenberry’s universe in many of the gadgets we use today particularly in the developments of early mobile phones (remember the flip front communicators of the 1960s original?) and later in what we now know as tablet computers.

As tech in the 24th century (and the late 1980s) moved on we saw the USS Enterprise get a gadget overhaul and in Star Trek: The Next Generation we were introduced to PADD (Personal Access Display Device). This gadget allowed the crew to bring up vital information at a touch. Generally as a large screen it was also seen as a handheld unit which, to bring it up to date, bears uncanny resemblance to an iPad. [emphasis added by LawPundit]"

Business Method Patents Goodbye? CyberSource Corp. v. Retail Decisions, Inc.: Federal Circuit Invalidates The Software Patent At Issue in the Case As An Unpatentable Mental Process

Gentlemen, start your engines!
and get out those pencils and paper. We are ready to roll!

Cybersource Corp. v. Retail Decisions, Inc.
N.D. Cal., March 26, 2009, No. C. 04-03268 MHP

Sheri Qualters at The National Law Journal reports: In Notable Post-'Bilski' Ruling, Federal Circuit Finds Software Patent Invalid, wrote:
"In a closely watched case about business method patentability following the U.S. Supreme Court's 2010 decision in Bilski v. Kappos, the U.S. Court of Appeals for the Federal Circuit found broad software patent claims invalid because they attempt to capture "unpatentable mental processes.""
quoting the opinion of Judge Dyk:
"[M]erely claiming a software implementation of a purely mental process that could otherwise be performed without the use of a computer does not satisfy the machine prong of the machine-or-transformation test...."
See also:

Evan Kubota (edited by Caitlyn Ross) at JOLT DIGEST, District Court Applies Bilski to Deny Validity of Business Method Patent Claims

but compare:

Timothy B. Lee at ars technica: Does not compute: court says only hard math is patentable

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