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The exfiltrated exFAT driver

The exfiltrated exFAT driver

Posted Aug 2, 2013 16:57 UTC (Fri) by Wol (guest, #4433)
In reply to: The exfiltrated exFAT driver by giraffedata
Parent article: The exfiltrated exFAT driver

You're missing the parent's point.

Any patent granted on actions THAT ARE PERFORMED BY SOFTWARE is an invalid patent. Because software is maths, maths is unpatentable, and any patent that says "you can't run that software" is an unlawful patent.

Patents get granted all the time. The USPTO doesn't bother reviewing them for validity. Damages get awarded for invalid patents. If you want a classic case of some poor defendant getting screwed for millions over invalid patents, look at the Blackberry case! (Though if you actually read what happened, rather than get taken in by the propaganda, RIM screwed themselves.)

You are correct to say that if a device using Code A infringes a patent, then another device using Code C to do the same thing will also infringe. But that is a clear statement that the patent protects an idea, which is NOT ALLOWED by patent law! In other words, any such patent *must* *be* illegal! Patent law is only permitted to protect "reductions to practice". So any patent that covers Code A can't also cover Code C because it is a different reduction to practice!

Cheers,
Wol


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The exfiltrated exFAT driver

Posted Aug 2, 2013 17:41 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

Damages get awarded for invalid patents.

This statement pretty much sums up how you and probably the author of the comment to which I responded are talking about something different than I am - and different from what many other readers would understand.

You're apparently talking about some kind of spiritual quality of a patent you call "invalid." I'm talking about what people care about more in discussing patent law: under what conditions can you expect to be forced to pay someone something? That's why most people say that whatever the courts decide is by definition the law, but apparently in your terminology, a court can get the law wrong.

You are correct to say that if a device using Code A infringes a patent, then another device using Code C to do the same thing will also infringe. But that is a clear statement that the patent protects an idea, ...

I wouldn't say it's clear. Patent claims come in all levels of abstractness, and the border between claims that describe a reduction to practice and those that merely state an idea is wide and fuzzy. That's why there are trials. Long ones.

Based on a scant exposure to patent law, it seems to me patents are being enforced on ideas, algorithms, and obvious inventions all the time, but if you ask me what patents are valid, I'm going to talk about the ones that can be enforced, not my impressions.

a court can get the law wrong.

Posted Aug 6, 2013 17:07 UTC (Tue) by Wol (guest, #4433) [Link]

Only too easily, unfortunately.

Or are you saying the legislature is irrelevant, and the law is only what the courts say it is?

The US copyright code says you cannot patent ideas.

The US Supreme Court says you cannot patent ideas.

The Patent Office grants patents on ideas as a matter of course.

Who is right? And given the US tendency to sue at the drop of a hat, and as we have seen the tendency of the courts of first instance to just assume that patents are valid, then you're on to a crap shoot.

So, to take your "the ones that can be enforced", well, it depends, as a defendant, to what extent you are willing and able to defend it. Chances are, the lower court will stiff you. Chances are, if you're still in business, the Supreme Court will declare it invalid. So is that a patent that fits your description, or not?

Cheers,
Wol

a court can get the law wrong.

Posted Aug 6, 2013 17:53 UTC (Tue) by giraffedata (subscriber, #1954) [Link]

are you saying the legislature is irrelevant, and the law is only what the courts say it is?

The law is determined by all three branches of government working together, but where what you think the courts say the law is is different from what you think the legislature says the law is, yes, the latter is irrelevant for most purposes. The former is what is going to keep you out of jail and wealthy.

But remember this is just a matter of definition. You can define the law as something independent of court rulings, and I'm just saying you can't have a very useful conversation using that definition.

Chances are, the lower court will stiff you. Chances are, if you're still in business, the Supreme Court will declare it invalid.
I haven't heard that claim before - that the Supreme Court usually declares patents invalid after lower courts enforce them. As far as I know, the lower courts do their best to avoid being overruled and usually succeed.

I also don't think the Supreme Court has said that all patents on inventions that could be implemented in software are invalid. (Or that they are patents on ideas, algorithms, or mathematics).

So is that a patent that fits your description, or not?

If the patent would be invalidated by the Supreme Court and the only reason people have to pay royalties on it is because they can't afford to get the Supreme Court to consider it, I would call it an invalid patent.


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