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Supreme Court: A Patent Owner Can Lie In Wait

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In a ruling today that will cheer up patent trolls, the Supreme Court said patent owners can lie in wait for years before suing. This will allow trolls to sit around while others independently develop and build technology. The troll can then jump out from under the bridge and demand payment for work it had nothing to do with.

Today’s 7-1 decision arrives in a case called SCA Hygiene v. First Quality Baby Products. This case involves a patent on adult diapers but has a much broader reach. The court considered whether the legal doctrine of “laches” applies in patent cases. Laches is a principle that penalizes a rightsholder who “sleeps on their rights” by waiting a long time to file a lawsuit after learning of a possible infringement. It protects those that would be harmed by the assertion of rights after a lengthy delay. For example, laches would work against a patent owner that saw an infringing product emerge yet waited a decade to sue, after significant investment of time and resources had been put into the product.

The ruling in SCA follows a similar decision in Petrella v. MGM holding that laches is not available as a defense in copyright cases. The Supreme Court has generally rejected “patent exceptionalism” and has often reversed the Federal Circuit for creating special rules for patent law. So today’s decision was not especially surprising. In our view, however, there were compelling historical and policy arguments for retaining a laches defense in patent law.

Together with Public Knowledge, EFF filed an amicus brief at the Supreme Court explaining the many ways that companies accused of patent infringement can be harmed if the patent owner sleeps on its rights. For example, evidence relevant to invalidity can disappear. This is especially true for software and Internet-related patents. In his dissent, Justice Breyer cited our brief and explained:

[T]he passage of time may well harm patent defendants who wish to show a patent invalid by raising defenses of anticipation, obviousness, or insufficiency. These kinds of defenses can depend upon contemporaneous evidence that may be lost over time, and they arise far more frequently in patent cases than any of their counterparts do in copyright cases.

The seven justices in the majority suggested that patent defendants might be able to assert “equitable estoppel” instead of laches. But that would likely require showing that the patent owner somehow encouraged the defendant to infringe. In most cases, especially patent troll cases, the defendant has never even heard of the patent or the patent owner before receiving a demand. This means estoppel is unlikely to be much help. Ultimately, today’s ruling is a victory for trolls who would wait in the shadows for years before using an obscure patent to tax those who do the hard work of bringing products and services to market.

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Technicalleigh
7 days ago
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SF Bay area, CA (formerly ATL)
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In an Unprecedented No-Show, the U.S. Pulls Out of Planned Human Rights Hearing

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The Trump’s administration decision to ghost the IACHR today demonstrates a shocking disrespect for human rights.

The United States has pulled its participation from hearings planned for today by a regional human rights body that has enjoyed the support of every U.S. administration since its founding.

The Inter-American Commission on Human Rights is meeting in Washington, D.C., for a regular session covering human rights issues spanning North and South America. The hearings today are scheduled to cover the Trump administration’s attempt to ban immigration from six predominantly Muslim countries, its immigration enforcement and detention policies, and its approval of the Dakota Access Pipeline. The ACLU is testifying on Tuesday at hearings that can be livestreamed here.

In the past, when U.S. governments have sought to express displeasure at having their records scrutinized, they have occasionally protested by sending lower-level officials. But today’s refusal to engage the commission at all is a deeply troubling indication of its disrespect for human rights norms and the institutions that oversee their protection.

The IACHR is an independent body of the Organization of American States, which brings together all 35 independent countries in the Americas. The U.S. has long been a champion of the work of the commission. While it has no enforcement mechanisms, its mandate is to promote human rights and examine violations in all OAS member states. The IACHR is often the only venue where victims of egregious human rights violations can seek a measure of recourse in the absence of accountability in their own countries. Survivors of the U.S. post-9/11 torture program have appealed to it, and even the Bush administration defended its policies before the IACHR.

The United States’ record isn’t the only one under scrutiny during this session. In the last several days, the commission has heard extensive testimony on the human rights situation in Mexico, Honduras, Panama, Chile, Bolivia, Guatemala, and Nicaragua, with additional countries to face review today and tomorrow.

The Trump administration’s refusal to engage with an independent human rights body, which has played a historic role in fighting impunity and barbaric military dictatorships in the region, sets a dangerous precedent that mirrors the behavior of authoritarian regimes and will only serve to embolden them. It is a worrying sign that the administration, which has also said it would review future engagement with the U.N. Human Rights Council, is not only launching an assault on human rights at home. Rather it’s upping the ante and weakening the institutions that hold abusive governments accountable.

Let’s hope the no-show is temporary, and not a sign of what’s to come.

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Technicalleigh
7 days ago
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SF Bay area, CA (formerly ATL)
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mwclarkson
7 days ago
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Trump is destroying America's standing in the world.
Providence RI USA

US to ban electronics on flights from a dozen countries, US media says

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Travellers from 13 countries will not be allowed to carry on laptops and tablets, US media report.
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Technicalleigh
8 days ago
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wtf?
SF Bay area, CA (formerly ATL)
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Arkansas’s Reckless Plan to Execute 8 Men in 10 Days Could End in State-Sanctioned Torture Before Death

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Rushing to execute eight prisoners before an execution drug expires is callous and cruel.

Between April 17 and 27, Arkansas Gov. Asa Hutchinson plans on doing what should be inconceivable: executing eight prisoners in ten days.

After killing no prisoners in the last 12 years, the state is rushing to execute these eight men before the controversial execution drug it needs to carry them out expires on April 30. The drug, Midazolam, has been directly linked to past botched executions, but that hasn’t stopped Hutchinson from planning a killing spree in a few weeks. By racing to use a drug known to play a part in botched executions, the governor risks debasing the state of Arkansas, its citizens, and the very American traditions of justice by torturing prisoners to death.

In a hospital setting, Midazolam is prescribed by doctors to calm patients’ nerves or act as a sedative for minor procedures. It is not used to put patients under for surgery, let alone anesthetize prisoners before killing them. And when Midazolam is combined with the two other drugs used during the execution — vecuronium bromide and potassium chloride — it produces unspeakable pain before death.

We know this because it’s happened before.

The most recent Midazolam botch occurred during Alabama’s December execution of Ronald Bert Smith. His execution took 34 minutes, during which time Smith heaved and coughed for 13 minutes. His attorneys reported that he remained conscious, responding to corrections officials, well into the execution.

In 2014, the state of Ohio relied on Midazolam with the same horrific results. That same year, a similar nightmare transpired over the course of two long hours after Arizona used 15 repeated doses to execute Joseph Wood before he finally stopped coughing and, gulping once, died. These botches together have led an Ohio judge to halt future executions using Midazolam, while Florida and Arizona have also abandoned it.

Beyond the cruelty of using a defective drug to kill someone, Arkansas is upping the probability of something going terribly wrong by ratcheting up the pace of its executions. Double and triple executions are rare in the history of the U.S. death penalty and haven’t occurred in close to 20 years. When they did happen, it was in a bygone era when states were annually executing three and four times as many people as they do today. Even then, no state attempted, as Arkansas plans for this April, four double executions in ten days.

The last state to attempt a double execution was Oklahoma, when, also using Midazolam, it botched the execution of Clayton Lockett. The prison warden himself called it a “bloody mess.” The scene in Lockett’s execution chamber was chaos. A doctor was squirted with Lockett’s blood as it spurted from a vein. The personnel were confused and distressed. Lockett did not die until 43 minutes later, after the execution had been halted and the shades drawn on the adjacent viewing room. Meanwhile, Charles Warner waited to die in the state’s second planned execution of the night. After the botch of Lockett’s execution, Warner’s was cancelled, and the state announced that it would no longer schedule more than one execution in a seven-day period.

Multiple dates, set so closely together, increase the risk of human error and resulting torture and injustice. Arkansas’s previous botched executions — of Ricky Ray Rector in 1992 and Christina Marie Riggs in 2000, like Lockett’s botch — each involved failure to place execution lines properly in the veins. This history highlights the role in executions of fallible human beings, who can’t help but be affected by the pace and horror of multiple executions. As Sen. John McCain said of Joseph Wood’s botched Midazolam execution, "The lethal injection needs to be an indeed lethal injection and not the bollocks-upped situation that just prevailed. That's torture.”

History risks repeating itself when we don’t heed its lessons. We don’t need another state-sanctioned killing to be botched by the use of Midazolam or by the reckless clip of Gov. Hutchinson’s scheduled killings. Assembly line justice — artificially paced to an expiring controversial drug choice — can only end in easily avoidable disaster.

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Technicalleigh
8 days ago
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True, except that executions need to be stopped PERIOD. Whether they are torturous or not, but especially because they are.
SF Bay area, CA (formerly ATL)
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[Deal Alert] All colors of the LG Watch Style are $179 ($70-100 off) at Best Buy

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Well that was quick. Just a month after the LG Watch Style went on sale, it's already being heavily marked down. Now you can get all colors of the LG Watch Style for just $179.99 - between $70 and $100 off the original price (depending on the model).

If you need a refresher, the Watch Style was launched alongside the bulkier (and more expensive) Watch Sport. Although it is far thinner than the Sport, it lacks a heart rate sensor, NFC for Android Pay, GPS, and LTE connectivity.

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[Deal Alert] All colors of the LG Watch Style are $179 ($70-100 off) at Best Buy was written by the awesome team at Android Police.

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Technicalleigh
9 days ago
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...yeah, that was _awfully_ quick.
SF Bay area, CA (formerly ATL)
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kingjaffejoffer: I’m watching Malcolm Gladwell’s interview on The Breakfast Club and they were...

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kingjaffejoffer:

I’m watching Malcolm Gladwell’s interview on The Breakfast Club and they were talking about privilege and education. And how the majority of the children chosen to be in gifted classes in school were White and Asian because there are more teachers who are White and Asian. And how Black kids are more likely to be chosen if they have a Black teacher. 

And it wasn’t until right now that I realized that the year I was chosen to be in the gifted program was in 5th grade when I had a Black teacher. I hadn’t even made that connection until he said that. 

Real af. 3rd grade. I’d forgotten all about that.

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Technicalleigh
11 days ago
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SF Bay area, CA (formerly ATL)
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