Wednesday, November 29, 2006

KSR v. Teleflex- looks like the good guys might win this one

The Supreme Court heard argument yesterday in the most important patent case years, and probably the most important case so far this term. I have blogged about it before.

At issue is when an invention is obvious, particularly in the context of the combination of preexisting technologies. The Court of Appeals for the Federal Circuit, the special appellate court with exclusive jurisdiction over patent cases, has established its own test to determine obviousness, called the teaching-suggestion-motivation test. In (really, really, really) short, it means that unless the patent examiner can point to an existing teaching, suggestion, or motivation on the subject- basically, some kind of article- then it can't be obvious.

Well, the Justices universally expressed disapproval of this test. Justice Scalia called it gobbledygook- the Chief Justice joked that experts testifying to an invention's non-obviousness must "the least insightful person you can find." Even the Patent Office argued it should be thrown out.

And it should be- the Federal Circuit's test lowers the bar to an almost ludicrous level, and essentially places the burden on the examiner to show obviousness. It should really fall on the applicant to demonstrate non-obviousness; they're asking for a legal monopoly, they should clear some hurdles.

In my (non-patent lawyer) opinion, the entire law needs a rewrite. Innovation happens too fast now to justify a 17 year monopoly on anything. Patents need to be shorter and harder to obtain- and patents on algorithms should be done away with altogether. An algorithm is simply a mathematical process- no one invents them, they are discovered.

And there is a difference between the two.

The vanishing trial?

Apparently, trials are rare (registration required). I keep forgetting that criminal defense is the one field in which trials are relatively common. Last fall at a party in New York, I met a number of big firm lawyers. Their stories were all about filings and discovery motions and partners who make them pick up their dry cleaning. My stories were all about smelly clients and picking fights with a judge because I was getting bored.

I need to remind myself just how lucky I am to be in court so much, even if it makes it hard to stay on top of the necessary busywork.

Monday, November 27, 2006

Something doesn't seem right

Earlier this month, the Superior Court of Pennsylvania issued a ruling (PDF) in a child pornography case that I read and then decided it was not a landmark decision. The appellant was convicted of "knowing possession" of child porn. The evidence (by all accounts, undisputed) showed that he intentionally sought out child porn (over 370 images), but did not save the images to his hard drive. Unknown to the appellant, the browser automatically saved them to the cache. The Court held that since he did know the images were saved somewhere, he could not be convicted of knowing possession, and the law as written did not criminalize mere viewing. Had he known about the cache, the result would have been different.

We hold that absent specific statutory language prohibiting the mere viewing of pornographic images or evidence that the defendant knowingly downloaded or saved pornographic images to his hard drive or knew that the Web browser cached the images, he cannot be not criminally liable for viewing images on his computer screen.
Then a friend sent me an article about the case, and it got me to thinking. This guy intentionally seeks out kiddie porn, and is saved by his own stupidity. Suppose someone accidentally stumbles upon a single image, immediately leaves the site, and does not intentionally save it- BUT this person also knows about the cache. That guy is guilty because he is not as stupid, despite the far less reprehensible nature of the conduct. What if hypothetical guy number two immediately clears the cache? Is that also evidence tampering? Obstruction of justice?

This case also points out the difficulties inherent in the concept of "possession" itself, particularly when applied to digital files. When one my clients is charged with possession of crack, it is easy enough to understand- it is physical, it exists in the palm of your hand. But when the concept is applied to information, it falls apart. What if you have an encrypted kiddie porn image on your hard drive, but lack the key to unlock it? What if the file is corrupted? What if you have it on your hard drive, know what it is, but it is in a proprietary format and you lack the software to open it? What if you simply never open it?

This is a serious problem for the future, when information is becoming increasingly digital. The Law- that's, capital T, capital L, The Law- was mostly written in a world lit by candlelight and coal fire, when businesses kept their books in actual books. We no longer live in that world, and The Law cannot keep up.

Sunday, November 26, 2006

More patent nonsense

McDonald's has applied for a patent on the sandwich. Yes- meats and veggies, with condiments, between two slices of bread, or, as in the lingo of the patent application, the "bread component."

I sincerely hope that this is just a badly written article, because the actual patent application is not available online yet. I'll try to post it next week sometime.