Indy Telecom & Industrial Media

The New York Times has an excellent article that questions (and speculates) on the Supreme Court time and again rebuking the Executive branch , something that’s quite rare.

While traditionally wartime Presidents have had broad and sweeping powers, the Judiciary has ruled against this specific Executive on four separate occasions during the past four years -

• Hamdi v. Rumsfeld: The court upheld that US citizens detained as enemy combatants must get a “meaningful opportunity” to challenge their detention.
• Rasul v. Bush: The court established that Guantánamo Bay was still within US territory, and therefore subject to US laws (and consequently, the constitution).
• Hamdan v. Rumsfeld: The court established that the military court established by the Executive cannot proceed because they violate military laws and the Geneva Convention.
• Boumediene v. Bush: The court established that terror suspects in Guantánamo Bay have the right to seek a writ of Habeas Corpus in a US Federal Court.

It is almost interesting to note the consistency (and reluctance) with which the Judiciary has lately stood up against the Executive, especially surprising given a wartime circumstance (of course, whether or not we are in wartime is a topic for yet another discussion).

Either way, I’m reminded of a fascinating Chinese curse. Interesting times, indeed.

As a patent attorney who deals with computer software, I have become somewhat inured to hearing that my entire profession is evil and that the IP system is nothing but sand in the gears of industry. Today, however, I ran across something new: apparently, there is a misconception that even knowing about patents is somehow dangerous, and should be avoided. Case in point: this Groklaw article about the first patent lawsuit filed based on the use or sale of the Linux operating system. Overall, the article was an exercise in tracing connections between Microsoft and the current plaintiffs. However, the following quote caught my eye:

Here’s the patent, for those who can look at it without risk. If in doubt, don’t.

The quote is written as though patents were radioactive, which is simply not the case. At one point, it was true that knowledge of a patent gave rise to an affirmative duty of due care to avoid infringement, and that failure to satisfy that duty could lead to enhanced damages in the case of litigation. However, at this point, that is simply false. The Federal Circuit, which has appellate authority over patent cases has clearly eliminated that duty and stated that “proof of willful infringement permitting enhanced damages requires at least a showing of objective recklessness” (In re Seagate)(emphasis added). This means that, unless there is an objectively high likelihood that you are infringing a patent, you can’t be found liable for enhanced damages based on willfulness. Also, my thought is that if there is an objectively high likelihood that you infringe a patent, it’s still better to find out yourself by reading the patent (so you can design around the patent or take other protective actions), rather than waiting for the patent holder to sue you and having to pay an attorney to defend you from their slam dunk infringement case.

The take home lesson from all this? There is no good legal reason to avoid patents and, if you happen to read one which is relevant to your life, you can save yourself a huge amount of grief by dealing with it proactively, rather than waiting till the patent holder drags you into court.

As a note, I normally blog about the law surrounding data privacy and information security here. Since I already have a blog devoted to those topics, my posts here will cover anything else that comes to mind.

Metlin.org has a new guest contributor.

Meet William Morriss, who is a lawyer at one of the better known law firms here in Cincinnati. William has a background in Computer Science and focuses on handling cases specific to Intellectual Property Law. In addition, he is also an extremely talented chess player with an expert rating from the United States Chess Federation.

William writes about a lot of interesting things related to law on his blog, Ephemeral Law. However, I invited him over to enlighten the audience here with his pieces on everything from law and intellectual property to mathematics and chess.

So, you can expect to see William blog about lots of interesting things. While they may not be as frequent as my regular blog entries given his busy schedule, I can assure you that they will most certainly be interesting and fun reads.

Enjoy!

Dear Islamic Republic of Pakistan,

How is the democracy thing working out for you?

First you had democracy overthrown by a lying, cheating military dictator.

Now you have the same dictator making his will the rule of law. And there’s not a damn thing you can do about it.

Democracy at work in Pakistan.

Maybe you should learn a lesson or two from your secular democratic republic neighbour, India.