• 2005-12-20

    专利法的catch,though not necessarily Number 22

    版权声明:转载时请以超链接形式标明文章原始出处和作者信息及本声明
    http://www.blogbus.com/danecao-logs/1724195.html

    今日读"纽约客"(New Yorker) 财经专栏(The Financial Page),觉得staff writer James Surowiecki 先生的一篇时事财经文章很切中肯綮;其从流行美加的无线email 阅读器行将撤出市场一事生宕开来,谈到并抨击了美国(乃至)世界通行的专利法体制的呆板,机械化,脱离实际,进而建设性的,客观的从公众利益出发提出了自己的意见和建议.我本人法律出身,也对JAMES的CONCERN也深感同受.现将此文全文收录如下,并将主旨用斜体标出,以飨读者.

    BLACKBERRY PICKING

    by James Surowiecki
    Issue of 2005-12-26 and 2006-01-02
    Posted 2005-12-19

    Since it was introduced, in 1999, the BlackBerry, a handheld device that provides wireless e-mail access, has become not only an enormous financial success—nearly three million Americans now use one—but also the quintessential symbol of today’s connected world. Last month, though, it became clear that a patent-infringement case could force the BlackBerry’s manufacturers, a Canadian company called Research in Motion, to kill the service in the United States by the end of the year. Then the BlackBerry will become the quintessential symbol of something else: a patent system that is out of control.

    The trouble for R.I.M. started in 2001, when it was sued by a small Virginia company called N.T.P. for infringing on five patents that described the design and operation of a primitive wireless e-mail network. In 2003, a judge granted an injunction saying that R.I.M. needed to cut a deal with N.T.P. or shut down the BlackBerry service. R.I.M. appealed, but to no avail. The injunction is still in place, and R.I.M.’s only chance of keeping the BlackBerry alive is to pay N.T.P. an enormous ransom—informed estimates run as high as a billion dollars. What’s more, there’s speculation that, once R.I.M. settles, N.T.P. could go after the cellular companies—Cingular, T-Mobile, and so on—that offer the BlackBerry.

    Fair enough, you might say. After all, we want to reward innovation and protect people from having their ideas stolen. Unfortunately, the real innovations in this case are not technological but legal. N.T.P. is a company without employees or products. It never tried to build a real business around its patents, and it never licensed them to others, until R.I.M. demonstrated just how lucrative wireless e-mail could be. No one alleges that R.I.M. used N.T.P.’s patents to build the BlackBerry; it invented its system from scratch. N.T.P., holding the patent on an idea and a crude design, waited until another company created a successful business based on similar ideas, and then headed to court. It is not alone in such endeavors. There are many companies, known unaffectionately as “patent trolls,” that thrive by suing other companies. Close to three thousand multimillion-dollar patent lawsuits (some valid, some questionable) are now filed annually—a number that has more than doubled in the past fifteen years—and many of them rely on what a federal judge termed “a combination of blitzkrieg and Shermanesque tactics.”

    Over the past two decades, the U.S. has taken the view that the stronger patents are, the better. But patents, by their nature, are imperfect. They may encourage innovation, but, by allowing the patent holder complete control of an invention, they also limit it. Patents reward some inventors at the expense of others: more than one person can have an idea, but only one can patent it. That may be why, in a study of a hundred and fifty years of patent protection, Josh Lerner, of the Harvard Business School, found that countries that introduced stronger protections for patents saw no increase in innovation by their citizens. Similarly, in a study of nineteenth-century innovation based on data from two World’s Fairs, Petra Moser, an economist then at Berkeley, found that countries with patent laws (like Britain) did not innovate more than those without them (like the Netherlands and Denmark).

    Protecting patent holders’ rights is important, of course, but the system needs to be rigorous in the way it hands out patents—careful not to grant patents for ideas that are obvious, already well established, or too broad. And it needs to be nuanced in matters of enforcement, weighing the interests of society alongside those of the patent holder. The U.S. fails on all counts. In the first place, too many patents are granted. According to a recent National Academy of Sciences report, ninety-five per cent of all patent applications in the U.S. are approved, compared with just sixty-five per cent in Europe and Japan. Understaffing at the United States Patent and Trademark Office—there are thirty-four hundred examiners and three hundred and fifty thousand applications a year—means that patent examiners don’t have enough time to properly research an idea’s originality. And since the office is funded by patent fees, as opposed to getting its budget from Washington, it has a financial incentive to process applications as quickly, rather than as diligently, as possible. (Generally, examiners spend somewhere between eleven and twenty-two hours per patent, and no extra time is allocated for commercially significant applications.) The appellate court responsible for patent cases also tends to be patent-holder-friendly. Injunctions of the kind that N.T.P. got against R.I.M., for instance, are usually employed only to prevent “irreparable harm,” but in patent cases they are now routine.

    Patents, then, have never been easier to get or more lucrative to hold. Unsurprisingly, people have been patenting everything in sight. Since 1980, the number of applications has tripled, and the number of patents granted has nearly quadrupled, effectively allowing patent holders to rope off more and more of the economy, even though the quality of patents has been steadily declining. (A recent Federal Trade Commission report warned that “questionable patents are a significant competitive concern and can harm innovation.”) The BlackBerry mess is a case in point: in the past year, the Patent Office has reëxamined N.T.P.’s eight patents, and issued preliminary rulings declaring them, and the nineteen hundred claims they contain, invalid. Until those patents are formally invalidated, however, R.I.M. is still on the hook, so it may end up paying for infringements that it never committed. Now, that’s innovative.

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  • Common courtroom phrases



    Language heard in the courtroom and other legal settings contains many standardized expressions and set phrases, and their equivalents in the target language should be familiar to the legal interpreter. After studying this list you should be able to translate these expressions orally and in writing without any hesitation.



    Command

    As jurors you are not to be swayed by sympathy.

    Bail should be continued.

    Call your next witness.

    Can you tell the jury … ?

    Could you briefly describe … ?

    Could you describe the appearance of (a package, etc.)?

    Counsel, lay a foundation.

    Defendant will be remanded.

    Don’t belabor the point counselor.

    Don’t discuss the case.

    Don’t volunteer explanations of your answers.

    I direct the jury to disregard the statement that …

    Jurors may be excused.

    Keep your voice up.

    Keep your own counsel, don’t talk about the case.

    Let’s have the charge conference.

    Make your application to Judge ( … ) .

    May the record reflect …

    May I have it?

    Members of the jury, you are instructed to disregard …

    Mr. X will reduce the decibel level.

    Please proceed.

    Please raise your right hand.

    Please remain standing.

    Please resume your seat.

    Poll the jury.

    Remember, you are under oath.

    Rephrase the question.

    See if you recognize it.

    Speak into the microphone.

    State your full name for the record.

    The following prospective jurors are excused.

    The witness will resume the stand.

    Use your common sense.

    Will the defendant please rise.

    Will the prospective jurors please stand.

    Will the people in the well of the courtroom please stand.

    Will the record reflect that the witness has identified the defendant.

    Will you call the first (next) case, Mr. (X)?

    Would you raise your right hand?

    Would you indicate … ?

    Would you describe … ?

    Would you point (someone) out?

    Would you look at … ?

    Would you state for the record … ?

    Would you label that as (car, building, etc.)?

    Would you mark that with an “x”?

    You are excused.

    You can proceed, Mr. (X).

    You can resume your seat.

    You can answer the question.

    You have exhausted that subject, please move on.

    You may answer the question.

    You may be seated.

    You may cross-examine, counsel.

    You may inquire, Mr. X.

    You may proceed.

    You may step down.

    Requests for information (requiring a yes or no answer)

    Are you familiar with a device known as (a beeper, a cell phone, etc.)?

    Are you familiar with this?

    Can you tell from looking (whether it’s yours, etc.)?

    Directing your attention to People’s exhibit (one, etc.) in evidence, can you tell the Court what is exhibit (one, etc.)?

    Do you recall making this statement?

    Do you recall this question?

    Do you recognize that exhibit?

    Do you swear that this is a true and accurate statement?

    Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?

    Do you swear to well and truly interpret these proceedings, so help you God?

    Do you solemnly swear (or affirm) that the answers you are about to give, touching upon your qualifications to serve as jurors in this case now before the court, will be the truth, the whole truth and nothing but the truth, so help you God? (oath to prospective jurors)

    Do you want the jury polled?

    Do you wish to say anything before sentence is imposed?

    Does (the picture, etc.) reasonably and accurately depict (the building, etc.)?

    Does that refresh your recollection?

    Did you discuss (cocaine, etc.?)

    Did you go to trial or did you plead guilty?

    Did you notice anything about (the envelope, etc.)?

    Did you post bail for (x’s) release?

    Did you advise (someone) of his rights?

    Did there come a time when you (left the house, etc.)?

    Have you filed a notice (of appearance)?

    Have you had any involvement with (the criminal justice system, etc.)?

    Have you had occasion to be involved with (an investigation, etc.)?

    Have you ever been involved in (drugs, etc.)?

    Have you formed an opinion as to (the cause of death, etc.)?

    Have you reached a verdict?

    Have you read the pre-sentence report?

    Have you received a copy of the complaint?

    Have you retained a lawyer or has one been appointed for you?

    Have you reviewed the pre-sentence report with your client?

    Is there anything that would prevent you from serving fairly and impartially?

    Is that your testimony?

    Is there any reason why sentence should not be imposed at this time?

    Is time excluded, your Honor?

    Is it fair to state (that you were living together, etc.)?

    Isn’t it a fact that (you were his girlfriend, etc.)?

    Isn’t that correct?

    Isn’t that right?

    Juror No. (x), is that your verdict?

    What was your state of mind regarding the reliability of the informant?

    Would that refresh your recollection?

    Would it be fair to say (that you knew him/her, etc.) prior to that time?

    Would you like the jury polled?

    Would you like to be heard?

    Would you like to say anything on your own behalf?

    You and each of you, do solemnly swear (or affirm) that you will well and truly try this case before you, and a true verdict render, according to the evidence and the law so help you God? (Oath to jurors on trial)

    You have the right to remain silent. Anything you say may be held against you in a court of law. You have the right to consult your lawyer and insure his presence at your interrogation. If you want a lawyer and can’t afford one, one will be appointed to you. Do you understand each and every right that has been explained to you? Having all these rights in mind, do you wish to talk to me now?

    Requests for information

    Have you been threatened or coerced into pleading guilty?

    How are you employed?

    How much schooling have you had?

    How do you plead?

    How do you plead to the charge contained in count (x)?

    How do you recognize that (exhibit, etc.)?

    How can you tell (whether you’ve seen that exhibit before, etc.)?

    What are your current duties?

    What happened next?

    What, if anything, did you do?

    What, if anything, did you say?

    What is People’s exhibit number (one, etc.) for identification?

    What is the Government’s recommendation?

    What is your current assignment?

    What is your immigration status?

    What were the lighting conditions (at that intersection, in the store, etc.)

    What were the weather conditions that (day, night, etc.)?

    Where was (the car, etc.) in relation to the (building entrance, driveway, etc.)?

    Requests for permission

    At this time I would like to read (a letter, etc.).

    Could I have a brief voir dire?

    Could we have a sidebar?

    I move to strike (the answer, etc.)

    I would like to advise the court (that the defendant is not present, etc.)

    I would ask that the court instruct the witness (to answer yes or no, etc.)

    I would ask most respectfully, your Honor, for a ruling.

    If it please the court …

    Let me call your attention to (that evening, etc.)

    Let me direct your attention to (the picture in front of you, etc.)

    May I approach the bench?

    May I beg the court’s indulgence for a moment?

    May I call my first witness?

    May I have the witness approach (the blackboard, etc.)?

    May I inquire?

    May I publish these (photographs, etc.) to the jury?

    May it please the court …

    May we approach?

    May we get a ruling?

    May we have a short recess?

    May we see you at sidebar, your Honor?

    Move to strike, there’s no question before the witness.

    Your Honor, may the jury be instructed to disregard (the answer, etc.)

    Statements

    At this time the defense rests.

    At this time the government rests.

    Criminal cause for pleading, U.S. vs (…).

    Each count carries a (x dollars) fine.

    (Exhibit one, etc.) is received in evidence.

    (Exhibit one, etc.) is marked as evidence.

    I’ll enter a not guilty plea on your behalf.

    I’ll show you what has already been received in evidence as People’s exhibit (one, etc.) handing you exhibit (one, etc.) for identification.

    I am showing you (a cassette tape, etc.)

    I call your attention to (the incident, etc.)

    I deny your motion.

    I don’t have any objection.

    I find that the government has sustained its burden aided by the presumption.

    I have a procedural matter.

    I have no further questions.

    I have to reserve an application.

    I move for a directed verdict.

    I now show you (a device, etc.).

    I object on the grounds that (the answer was not responsive, etc.)

    I object to that; no predicate has been laid.

    I object to these self-serving statements.

    I offer government exhibit number (x) into evidence.

    I remind you that you are still under oath.

    I’ll rephrase the question.

    I’ll show you what has been marked for identification as exhibit (one, etc.).

    Do you recognize that?

    I’m going to move to strike that answer as non-responsive.

    I said, “Freeze!”

    I take it that (you were together, etc.)

    I’ll address any application to the district court.

    I use the struck jury method of picking a jury.

    I would submit that they’re conditions to ensure Mr. X’s return to Court.

    It is received.

    Lawyers may exercise challenges.

    Marked as evidence.

    Motion denied.

    No objection.

    Not that I recall.

    Objection.

    Objection to the form, your Honor.

    Objection, your Honor, leading.

    Overruled.

    Received.

    Received in evidence.

    Received subject to connection.

    Sustained.

    Sustained; rephrase the question.

    (Tell us, etc.) to the best of your recollection.

    That was your sworn testimony.

    The counsel is mischaracter...