Katleski has hired a lawyer, but he also acknowledges his small brewery doesn't have the money to contend with Lucasfilm in the long run if they decide to throw their money behind this. Of course, there is a reasonable flip side to this, which is that if they're just such a small brewery, why did the company even bother filing for a trademark in the first place? The company doesn't need the trademark to sell the beer. It could easily rely on common law trademark instead of getting a registered one, saving it some money (and calling in the attention of Lucasfilm/Disney lawyers). In the end, though, we just have another trademark dispute that doesn't seem to serve any real benefit to anyone.
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But most of the support for releasing the report is coming from the Democrats on the Senate Intelligence Committee, led by Dianne Feinstein (who sides with the NSA on plenty of stuff, but is more willing to challenge the CIA). But if the Republicans take the Senate next week, then the chair of the Senate Intelligence Committee will likely shift to Senator Richard Burr, who has made it quite clear that he's on the CIA's team and against the public interest. "I personally don't believe that anything that goes on in the intelligence committee should ever be discussed publicly," Burr told reporters in March. "If I had my way, with the exception of nominees, there would never be a public intelligence hearing." It's also expected that Burr will try to muzzle Ron Wyden and Mark Udall (if Udall is re-elected, which is iffy at this point):
If Burr takes over as chair, he could easily sideline the committee's vocal civil libertarian bloc led by Ron Wyden (D-Ore.), and bolstered by Mark Udall (D-Colo.) and Martin Heinrich (D-N.M.), two senators who've called for Brennan's resignation.
Udall, in particular, drew blunt criticisms from Burr earlier this year for disclosing the existence of an internal CIA review of the detention and interrogation program that Democrats believe vindicates their own study.
"I think Mark did make some public releases that were committee-sensitive information, but that's for the committee internally to handle," Burr told reporters in March. "My concern is that the release of information could potentially cause the losses of life to Americans. That to me, is a threshold that should be addressed."As for the torture report itself, Burr has already said that the report is inaccurate and he's against it being released in any form. When a group of religious leaders asked him to support releasing the report, Burr told them he didn't think the report was accurate: Last year, Burr drew criticism from more than 190 North Carolina religious leaders, including Christians, Jews, Quakers, and Muslims, for opposing the release of the Senate's post-9/11 torture report.
"The U.S. does not condone torture, but torture has been done by our citizens and in our country's name," reads a letter the religious leaders sent Burr. "We are writing to you as fellow people of faith to support the release of the ... report."
Disappointing the religious groups, Burr responded in a letter saying he opposed making the report public due to factual inaccuracies contained within the report. "I believe the American public should be provided with reports that are based on accurate facts," he said. Given all of this, if the GOP does win, it seems like the only way the public may ever see the details is if someone steps up and leaks the damn thing.
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First, it's important to note that the WSJ article only describes the plan in slightly vague generalities, and the specifics matter a lot in these situations. It's tough to know exactly how good or how bad this is without those details, but there are some broad brush strokes of what the FCC is leaking now to see what sort of reaction there is.
The plan looks to be loosely based on a proposal Mozilla submitted back in May, in which the FCC sets up rules that sort of split the baby, by separating out the relationships directly between various internet providers, classifying that under Title II (common carrier rules), while leaving the last mile sections (the part delivered to you at your home or office) regulated under 706 as an "information service." But then, it sets up very loose rules on top of that structure, that potentially have massive loopholes for the broadband players -- and that's where the specifics matter. The end result could be that the broadband players could still make deals for "differentiated services" to the end connection -- which is what many fighting for net neutrality were most worried about. Here's how the WSJ describes Wheeler's current thinking: The plan now under consideration would separate broadband into two distinct services: a retail one, in which consumers would pay broadband providers for Internet access; and a back-end one, in which broadband providers serve as the conduit for websites to distribute content. The FCC would then classify the back-end service as a common carrier, giving the agency the ability to police any deals between content companies and broadband providers. But, yes, the plan would still allow for paid prioritization: People familiar with the FCC’s thinking say the agency remains skeptical of a flat ban on paid prioritization, noting that even common carriers are allowed to charge for certain specialized services. Mr. Wheeler suggested in December that he would be open to some such arrangement. He has been careful since then to emphasize that the FCC won’t tolerate harmful discrimination, though hasn't called for a flat ban.
The proposal would leave the door open for broadband providers to offer specialized services for, say, videogamers or online video providers, which require a particularly large amount of bandwidth. The proposal would also allow the commission to explore usage-based pricing at some point, in which consumers are charged based on how much data they use and companies are able to subsidize traffic to their websites or applications. In an attempt to deal with the concerns of such paid prioritization, Wheeler's plan apparently would put the burden on the telcos to have to "prove that the arrangements would be beneficial to consumers and equally available to any company that would like to participate."
If this is the actual plan, it's definitely better than Wheeler's original May plan, which would have allowed such prioritization if it were "commercially reasonable." Having a combination of it being "beneficial to consumers" and with a non-discrimination component is a clear step up.
But -- and here's the important bit -- it's unclear what benefit this hybrid proposal really buys. Anything that touches on declaring any part of the network Title II is going to lead to lawsuits from the broadband players, as Verizon made clear just yesterday. In fact, it potentially gives them another legal argument in saying that not only is using Title II improper, but so is the attempt to slice and dice what parts of the network get Title II.
And, the consumer advocate groups may (in a funny way) be with them on that argument. In a statement Free Press put out in response to the WSJ article, they also declare the splitting the baby solution to be legally dubious: The FCC is supposed to protect our communications, period. Chairman Wheeler can't wave a wand, change the law, and pretend to break the Internet in two. But these schemes suggest just that: dividing the Internet to protect corporations sending information, but not the people receiving it. Such an untested, too-clever-by-half approach is bad law and a bad idea. It will not survive in court, and it is clearly inferior to reclassifying broadband under Title II of the Communications Act. It's also unlikely to buy Wheeler any political support from Congress. The anti-net neutrality crowd in Congress which has been so revved up to be against anything that even hints at Title II will immediately condemn this plan, and supporters from the other side will find it equally distasteful in allowing the broadband guys to mess around with the last mile connections.
Still, the end result here seems like a plan that may be noticeably better that the original proposal, but which angers almost everyone, and possibly kicks off a more aggressive set of legal challenges that may be more complicated (and potentially even less likely to survive a legal challenge). While I recognize and appreciate the goal of trying to find a "compromise," it seems that coming up with one that is even less likely to survive a legal challenge is a risky proposition, because it means in another three to five years, we'll be right back here again after a court tosses out these rules and a different FCC has to try again.
This definitely is a shift towards stronger rules, but the devil is in the details, and many people seem to be wondering, if the FCC is willing to go part way towards Title II and strong net neutrality rules, why not go all the way. The political opposition will likely be the same, as will the legal challenges. A compromise solution always sounds nice, but it's not entirely clear what this buys in the long run. And, if this plan (again, details matter) still leaves a way for big broadband players to pick winners and losers, that's a problem. And, again, that's what this all comes down to. When the big broadband players get to act as gatekeepers who can set up tollbooths for internet services, there's a real risk of massive chilling effects and a worse overall internet experience.
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And that creates a huge barrier to entry. People who want to create new e-reader apps or devices can't do what MP3 startups did in the 1990s and offer to automatically import your existing e-books from Kindle, iTunes, or other major platforms. Instead, they have to start from scratch, creating their own e-book store and convincing all the major publishers to sign up for it.
Even more daunting, they have to convince customers to toss their existing e-book libraries and buy new copies of their e-books on the new platform — or split their time between multiple platforms. The thing is, none of this is even remotely surprising. Almost six years ago, we warned book publishers of this exact scenario. This wasn't hard to predict, because the same damn thing had happened in music, before Apple finally dumped its music DRM. But no one listens to us.
And yet, you can bet that if changing the anti-circumvention provisions of the DMCA is up for discussion during the next effort at copyright reform, the book publishers and their lobbyists will actually be among the most vocal about keeping it the way it is. They still don't seem to recognize how their own demands for DRM created the situation they're so worried about today with Amazon having more power than the publishers like.
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But it didn't stop FBI director James Comey from ignoring the advice of his own agency and pushing for a new law that would create back doors (he called them front doors, but when asked to explain the difference, he admitted that he wasn't "smart enough" to understand the distinction) in such encryption.
So, now, of course, the FBI/DOJ gets to go up to Congress and tell them scary stories about just how necessary breaking encryption would be. And it's being done in total secrecy, because if it was done in public, experts might debunk the claims, like they've done with basically all of the scenarios provided in public to date. FBI and Justice Department officials met with House staffers this week for a classified briefing on how encryption is hurting police investigations, according to staffers familiar with the meeting. The briefing included Democratic and Republican aides for the House Judiciary and Intelligence Committees, the staffers said. The meeting was held in a classified room, and aides are forbidden from revealing what was discussed. It's almost guaranteed that someone will introduce some legislation, written primarily by the FBI, pushing for this (such a bill is almost certainly already sitting in some DOJ bureaucrat's desk drawer, so they just need to dot some i's, cross some t's and come up with a silly acronym name for the bill). So far, many in Congress have been outspoken against such a law, but never underestimate the ability of the FBI to mislead Congress with some FUD, leading to all sorts of scare stories about how we need this or we're all going to die.
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EFF recently learned about a patent that covered a method of filming a yoga class. We reviewed the patent and discovered that it was just as ridiculous as it sounded. Despite our familiarity with absurd patents and our concerns about cursory review at the Patent and Trademark Office (PTO), we were still surprised that this one issued. It seemed the so-called "invention" wasn't the kind of thing that should be patented at all—or at the very least, was not something novel or nonobvious. Yet another stupid patent, and winner of our October accolades.
There's a silver lining to this story. The yoga community affected by this stupid patent wasn't willing to give in. Instead, the community fought back, and as our post was set to go live (and on the day EFF contacted the patentee's lawyers for comment), the patentee publicly disclaimed all interest in the patent. So this stupid patent is now a stupid ex-patent.
Even though the patent owner, YogaGlo, Inc., has already given up, we think the story of this patent is still worth telling. We think it reveals a lot about how our patent system is desperately broken. This story is one of a grave series of omissions and errors that resulted in a patent that should never have been granted in the first place, and a patent applicant incentivized to do everything in its power to keep filing for more. This blog post goes into this history in detail.Filing for a Patent on Filming a Yoga Class
U.S. Patent No. 8,605,152 claims to cover a "method and apparatus for yoga class imaging and streaming." To be clear, the patent involves slightly more than just filming a class, but not much. The claims require, among other things, "a studio having a front area and a rear area," "a line of sight corridor," and an "image capturing device" at a "height of about three feet." In non-patent speak: a room, a direct view of the instructor, and a camera positioned about three feet above the ground. Figure 2 from the patent, shown below, is described as "an embodiment of the present invention," and shows all the elements of the claimed "invention."
The yoga patent came out of U.S. Patent Application No. 13/763,569 (the "'569 Application"), filed on February 8, 2013. Derik Mills, the CEO of YogaGlo, Inc., a Santa Monica based company that strives to provide "the experience of being in the class at your home," listed himself as the inventor.
At the time the '569 Application was filed, a related patent was also making its way through the PTO. Mills had previously filed U.S. Patent Application 13/220,621 (the "'621 Application") on August 29, 2011. Both applications claimed priority (meaning there was a claim to an earlier date of "invention") to a previous application filed August 27, 2010.
This sort of "continuation practice"—having multiple applications relating to the same or related inventions—is common at the PTO. What was not common, however, was that the original '621 Application was literally identical to the original '569 Application: Mills sought to claim the exact same thing through both the '569 and '621 Applications. (It is unclear why Mills filed two applications with exactly the same claims. One possibility is that Mills felt his chances with the second examiner were better than the first.)
Often, similar or related applications are assigned to the same examiner. But Mills' applications were given to two different examiners for review (we're not sure why). The '569 Application was assigned to Examiner Nhon T. Diep and the '621 Application was Examiner Mohammad J. Rahman.
Both the '569 Application and the '621 Application were initially rejected. Diep initially rejected the '569 Application on July 3, 2013, on two grounds: double patenting (can't get two patents on the same thing) and obviousness (the "invention" was not different enough from what came before). In making the obviousness rejection, Examiner Diep relied exclusively on patents or patent applications. Shortly after that, on August 5, 2013, Rahman (faced with the exact same claims that had just been rejected) rejected the '621 Application for the same reasons.
But from there, the two applications and their histories at the PTO diverge."YogaGlo intends to enforce its intellectual property rights"
On August 26, 2013, despite having both its patent applications initially rejected on multiple grounds, YogaGlo sent demand letters to its competitors, including Yoga International. In the letter, YogaGlo (through its lawyers) pointed to its patent applications and stated its belief that Yoga International "streams online fitness classes that mimics [sic] the method and technique of YogaGlo's U.S. patent application." Although YogaGlo did not explicitly demand that Yoga International remove the videos it believed infringed YogaGlo's not-yet-existing rights, it warned that the letter "shall serve as actual notice of the existence of the YogaGlo Patent Applications" and "upon patent issuance, damages may be due retroactively to the date of patent publication."
Yoga International, concerned by the idea that a company could get a patent on filming a yoga class, decided to fight back. It told the yoga community about the letter and the yoga community went into uproar. Yoga Alliance, another Yoga organization, started a petition asking YogaGlo to withdraw its patent applications and received over 14,000 signatures.
YogaGlo responded with its own interpretation of the situation, saying that it filed for the patents "in order to continue to provide our community with this distinctive online yoga class experience at an affordable price." In effect, YogaGlo's argument appeared to be that without patent protection, it would cease to exist.
Except that for at least the first few years of YogaGlo's existence, this wasn't true. YogaGlo, it seemed, had been flourishing for many years without the patent protection it now felt it needed.Patent Protection Not Required Nor Deserved
Patents are only supposed to be granted on what is novel and nonobvious. The Patent Office, in initially rejecting YogaGlo's patents, relied on other patents and patent applications. But filming a yoga class didn't seem to us like something that should (or would) be in a patent or patent application. Filming methods just aren't something that are traditionally patented (nor should they be).
Instead, it seemed to us that prior art for systems and methods for filming would most likely be found in actual films. So in order to help understand just how "novel" YogaGlo's invention was, we did an Internet search for other, similar "systems" and "methods." Below is a collection of just some of the videos we found, all uploaded or filmed before YogaGlo filed its patent application:
Based on our search, it seems like YogaGlo's patent should never have issued. But even more interesting is that last screen shot. Its similarity to Figure 2 of YogaGlo's patent applications is not surprising, because it is from YogaGlo's own website—and it's dated July 28, 2009.
This is a problem for YogaGlo. Even if something is novel and nonobvious, a patent should not be granted if the application is filed more than one year after the "invention" is made, used, or sold. This is commonly referred to as the "one-year statutory bar." Basically, you can't patent something once the public has known about it for over a year. The public policy rationale is that patents are meant, in part, to get inventors to disclose their inventions to the public. If the invention has already been disclosed, the applicant didn't need the patent "carrot".
The one-year statutory bar is well known by patent practitioners and is often used to invalidate a patent or prevent one from issuing. One organization, after receiving YogaGlo's letter, found YogaGlo's invalidating videos and recognized their importance. After receiving YogaGlo's letter, and before any patent issued, that organization sent YogaGlo's lawyers a letter and pointed to the videos as prior art,.
And Yoga International wasn't the only ones who noticed that YogaGlo shouldn't be able to get a patent. A comment on YogaGlo's own website on the post about YogaGlo's patent applications, dated before any patent issued, also highlighted the videos:
That link at the end? That's to the "Manual of Patent Examining Procedure" and the section on the one-year statutory bar.Back at the Patent Office
Because YogaGlo filed its original patent application (the one to which both its applications claimed priority to) on August 27, 2010, more than one year after it had posted videos using its "invention," no patent should have been allowed. The one-year statutory bar prohibits it.
But if the PTO doesn't know about prior art, it can't use it to reject an application. This is why the patent office relies on patent prosecutors (the people who file applications on behalf of inventors) to bring to light prior art known to the applicant. The PTO itself will do a search, but it's expected that prosecutors will point out art too. Indeed, they have a duty to do so.
In prosecuting the two applications, Mills and YogaGlo were represented by patent prosecutor working at the same office as the lawyer who sent Yoga International and others the letter about YogaGlo's patent applications. This is also the same the law firm office that received the responses, including its mention of YogaGlo's own invalidating videos. But despite the duty of disclosure, neither Mills, YogaGlo's lawyers, nor anyone else associated with YogaGlo notified the PTO about YogaGlo's own videos that implicated the one-year statutory bar.
At this point, its important to note is that the '569 Application was filed under what's called the "Accelerated Examination Program." This program allows applicants to get their applications reviewed more quickly if they can meet certain requirements, including making a statement regarding the "most closely related" prior art and how the "invention" is different than what came before. (Normally a hopeful patentee isn't required to particularly point this art out. It's enough to merely list it on a form). YogaGlo identified and discussed some prior art, but it failed to bring up the most damning examples: its own videos.
So on October 7, 2013, when it came time to address the examiner's initial rejection, YogaGlo did not identify its own videos and correct the failure to identify them at the outset. Instead, it filed an "amendment" and "request for reconsideration" of its '569 Application. YogaGlo modified its claims slightly, and argued that the claims were now patentable. The reason? The prior art, according to YogaGlo, didn't disclose "a line of sight corridor." In plain English: YogaGlo argued that when filming a teacher from eye level at the back of the room, it wasn't known or obvious to keep students from blocking the camera's view of the teacher (yes, really).
Incredibly, Mills and YogaGlo—despite Yoga International's letter, posts on their blog, and explicit recognition of the duty of candor—never told the PTO about its videos. Instead, on October 29, 2013 and without explanation, Examiner Diep allowed YogaGlo's patent, having never been given the chance to consider the art that was so clearly important.
To be clear, Examiner Diep did a search for prior art. He searched databases available at the PTO, but he did not do a YouTube (or even general Internet) search. Perhaps unsurprisingly, he did not find YogaGlo's videos, or the many other videos that predated YogaGlo's "invention," among the patent databases he searched. The '569 Application issued on December 10, 2013, almost two months after YogaGlo received the information pointing out YogaGlo's prior art videos, and more than four years after YogaGlo had first started posting its videos.If at First You Succeed, Try Again?
Having received one patent, YogaGlo continued to seek a second through its '621 Application. On February 5, 2014, like with the '569 Application, YogaGlo modified its claims slightly and argued that the claims of the '621 Application were now patentable. Again YogaGlo did not disclose its own videos. But unlike Examiner Diep, Examiner Rahman searched for prior art on YouTube. Below is part of his results:
Through this YouTube search, Examiner Rahman was able to easily find YogaGlo's own videos that implicated the one-year statutory bar. On that basis, the '621 Application was finally rejected on March 7, 2014.
But in a practice that has become all too common at the patent office, the "final" rejection became not so final. On September 17, 2014, YogaGlo asked the examiner to reconsider the application. In an act that can only be called brazen, YogaGlo argued that it's own videos were not prior art, because "while the video appears to show the line of sight corridor, it is clear that it does not show the widening of the corridor as shown in Fig. 1"
Here is Figure 1 from the application with another frame from that "John Friend" video:
We're having a hard time figuring out how this does not blow YogaGlo's claim out of the water. When looking at the frame (a different one than that cited by the examiner), YogaGlo's argument seems completely frivolous to us. But because the examiner cited to a different frame, YogaGlo was able to cite to some minute distinction between its claim and the picture Examiner Rahman found, and ignored the rest of its video. But even if a distinction exists, why does it matter? Is this really something that's a "patentable distinction" over the prior art? Should someone be entitled to a patent every time a room is set up differently or a camera is moved slightly?
Practices at the PTO encourage applicants to keep filing, and to make this sort of meaningless distinction. Examiner Rahman had already finally rejected this application once. But YogaGlo is insistent. Unfortunately, if Examiner Rahman wants to get this work off his plate, the quickest and easiest way is to allow the patent. And applicants know this.Symptom of a Larger Problem
YogaGlo's patent never should have been filed, and never should have issued. Even more importantly, hopeful patentees should not be incentivized to continue to push for patents despite clear evidence showing the claims are invalid.
In the broader view, it seems unlikely that patents are needed in order to incentivize people to develop new systems and methods for filming. Hollywood has existed for many generations without every director rushing out to patent new styles and angles of filming. Most likely, this is because patenting a new way of filming just doesn't seem like something that patents were meant to protect, and nor are they needed in order to encourage the next Stanley Kubrick. And YogaGlo seems to acknowledge this: their own statement says they wanted to protect the "look and feel" of their videos. This is not something our patent system was designed to protect. But our culture of overclaiming of intellectual property rights likely encouraged YogaGlo to file for a patent and incentivized YogaGlo to seek it at all costs—including honesty. We don't know why YogaGlo's decided to not disclose its own videos, but its failure to do so seems questionable (at best). We asked YogaGlo's lawyer for comment, but he declined.
The PTO relies on applicant disclosures, and should be able to, but in this case, it is clear that such reliance was misplaced. And what is also clear is that an incentive exists to not disclose. The fee worksheet in the file history for the '569 patent application shows that YogaGlo paid $663 when it filed its application. After paying a few more thousand in fees during the pendency of the application, YogaGlo got an almost twenty-year monopoly on its systems and methods for filming a yoga class.
We strongly believe that YogaGlo's patent never should have issued. And we're glad YogaGlo has belatedly agreed. YogaGlo's pending patent application is as deeply flawed as the issued patent. It should do the right thing and abandon its application too. Although pressure from the Yoga community convinced YogaGlo to do the right thing at least with respect to the issued patent, for most people getting rid of a patent is not so easy. To invalidate a patent, the cost is a minimum of $6,000, which is the cost of filing an ex parte re-examination.
Fortunately for the Yoga community, people were willing and able to fight back. But often communities aren't able to do so, and EFF can't help with every stupid patent we find (trust us, we see a lot of them). This is why reform is needed: too many incentives exist to encourage patent applicants to be less than forthcoming, and it is too expensive and difficult to challenge stupid patents. We hope that in telling this story we can start a dialog on how to fix the system to make sure that no one gets a stupid patent on filming a yoga class again.
Reposted from the EFF Deeplinks Blog
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This is yet another obvious and gross misuse of tactical and/or military-grade equipment in a haphazard way. Hoeppner owes Stettin, his city of 2500 residents, $80,000 in fines for not keeping his property as clean as the city would like. In other words, he left his tractors out. As a result, he faced down a BearCat and a SWAT team, which then escorted him to the bank where he paid his fines and was escorted back out by SWAT. All of this because the authorities couldn't be bothered to come up with a creative way to get Hoeppner out of his house. “I just don’t understand why a dollar and a half of postage on an envelope that I would have had to pick up at the Wausau post office wouldn’t have done the same thing as 24 officers and an armored vehicle,” Hoeppner told the Guardian. “The United States is not supposed to terrorize its hardworking people." Good one, sir.
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