Friday, February 01, 2013

Apple Threatened Patent Litigation in Pushing Antitrust Law Violating ‘No-Hire’ Agreements: Where is the Antitrust Division of the Department of Justice?? Going After Beer Mergers?

Killian Bell has the story at Cult of Android in Steve Jobs Threatened Patent Litigation To Enforce ‘No-Hire’ Agreements.

The U.S. Department of Justice ("DOJ") Antitrust Division has been doing much too little in countering antitrust violations in the technology sector.

They prefer going after beer company mergers, mergers that surely have more to do with adapting to the nation's changing beer market than creating monopolies. There are plenty of beers out there to choose from and beer-brewing is not hampered by patent trolling, as in the tech industry. Indeed, selfish and antiquated State regulations on alcoholic beverages probably have more to do with alcohol monopolies than mergers.

The antitrust worry as regards beer mergers is apparently that the beer merger in question will raise beer prices, and we say RAISE THEM! Beer prices SHOULD go up -- especially via taxes on alcohol -- to help finance the nation's destitute governments and to reduce massive over-drinking and drunk and drugged driving. MADD could use your support.

As for the tech industry, these antitrust violations have been a modus operandi of companies such as Apple for years. They laugh all the way to the bank. In fact, part of the past financial credit crisis, after all, can be laid right at the doorstep of regulatory authorities such as the DOJ in general, who were chewing gum and enjoying soft shoes while the world was crumbling.

One of the beefs that we have with the Obama administration is that they have been exceedingly lax at dealing with rampant antitrust behavior in the technological sector, especially in areas tangent to intellectual property.

The result is that many U.S. companies are no longer innovating but rather cashing in on their antitrust violations, where the rewards are far greater than any sanctions to be feared. Why innovate when you can steal at will by violating the law, and in a worst case scenario, can be confronted by laughable sanctions that at best amount to only peanuts?

The price paid by the country is that it is becoming a nation no longer competitive in many areas of technology, and much of its own tech is now made overseas to boot, thus exploiting cheap labor to maintain and expand monopolies that are not being legally attacked domestically. Anyone who doubts that legitimate competition ERODES monopolies should read Apple's tablet market share dips below 50 percent as Samsung gains on iPad. It is not for nothing that Apple tries to keep competition out of the country, aided by gullible courts, misguided legislators and a somnambulating legal system.

As of January 3, 2013, William J. Baer, a Stanford Law School grad, my own legal alma mater, has been sworn in as Assistant Attorney General for the Antitrust Division. His biography tells us what he has done and he seems like a nice sort, but I am not sure that a nice guy is what is needed in the current situation, where we would frankly prefer a man whose presence would have violating executives and corporations shaking in their shoes.

We are thus more interested in reading what the Antitrust Division finally plans to do under his leadership to get DOJ Antitrust into the modern era in breaking the monopolies in the tech sector and finally leaving the laissez-faire enforcement doldrums of the current decades behind them. We see no evidence of any sensible plans in this direction at the DOJ.

Monopolistic practices are not only legion in the tech sector, but also have become worse through intellectual property trolling of all kinds. Where are the remedies!? Where are the sanctions?! Monopolistic companies such as Facebook do what they want and at best get a slap on the wrist for violations of the law.

People complain about "big government". We complain about a "do nothing" big government. Agencies like the Department of Justice Antitrust Division have become paper tigers in the tech sector, whereas other agencies such as the USPTO are expanding and wildly handing out free tech monopolies left and right as if there were no tomorrow.

Speaking of shaking in your shoes, Apple has just applied for a patent on "smart shoes", i.e. embedding a sensor in shoes to tell the wearer when they are worn out. They are not applying for a patent on a "specific sensor", which is what the patent law should be all about. They are applying for a patent on any sensor in shoes. It is absurd. In my opinion, people in the patent field have totally lost their senses. Putting electronic sensors in anything is NOT an invention. In fact, a U.S. Supreme Court court opinion says so nearly explicitly in KSR v. Teleflex. Only the people at the USPTO know nothing about that.

As for the incomparably inefficient Senators and Representatives in Congress, Baer was nominated by U.S. President Obama on February 6, 2012, and only confirmed at year's end, to be sworn in January, 2013. Well, no wonder even big government is not working, when things are done at a snail's pace!

Furthermore, when I went to the website of the United State Senate Committee on the Judiciary, who held hearings on Baer's nomination, the links at that page regarding the Committee Questionnaire DO NOT WORK, which might be regarded as typical for the kind of incompetence that seems to be rampant in Washington.

Here is an example (failed access February1, 2013): if you click Question 12C - Testimony, Official Statements, Other Communications Relating to Matters of Public Policy or Legal Interpretation, the only thing that happens is that a new tab in a new window is opened. When I copied that URL via "copy link location") I got: javascript:HandleLink('cpe_12797_0','CPNEWWIN:NewWindow^top=10,left=10,width=700,height=700,toolbar=1,location=1,directories=0,status=1,menubar=1,scrollbars=1,resizable=1@CP___PAGEID=12925,/nominations/112thCongressExecutiveNominations/upload/WilliamBaer-Question12C.pdf');

Only when I copied the locationally operative part of that URL, i.e. /nominations/112thCongressExecutiveNominations/upload/WilliamBaer-Question12C.pdf and plugged that text into Google search did I find the right and only link that actually leads to the correct page URL, which is:

Well, errors can happen, but apparently, these matters are so unimportant to the legal community at large, that no one has apparently ever accessed that DOJ page, outside of us, otherwise the error would be known.

When that kind of inefficiency and sloppiness are arguably rampant in government, who can expect them to effectively police antitrust activities in industry in general, a responsibility that requires a competent touch of righteous legal ruthlessness toward a private, commercial world out to get what they can and what the government gives them.

We have our doubts as to whether Baer will be "baerly" enough.

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