Friday, February 24, 2006

The mirage of internet commentary; problems with the prior art of the future?

On IPBiz in December 2005, I posted some comments on an article by Jacquie McNish, "Misadventures in the wacky world of patent law; Firms as diverse as eBay, RIM find themselves at the wrong end of a quirky system," which appeared in the Toronto Globe and Mail. The article was available on the internet, and I wrote a letter to the Globe and Mail pointing out some problems with article (e.g., litigation was not stalled in US courts because we are a first to invent country). The Globe didn't publish my letter.

About a week or so later, on December 25, 2005, the Detroit News republished the McNish article. I sent in my same comments, and the Detroit News placed my letter (Wacky Patents or Wacky Reporting?) on their internet site, although someone else had already criticized the McNish article.

Two months later, the original McNish article cannot be directly accessed on the Globe and Mail site, although it can be accessed on on the Detroit News site. The critical comments are gone.

Look at this general fact pattern in an abstracted analysis of knowledge of one of ordinary skill. At this point in time, one could point to the "truth" of the McNish article, on the basis that no one criticized it. Of course, it was criticized, but that was removed from the internet, so, for all practical purposes, it didn't happen. This sort of thing becomes a working embodiment of Orwell's 1984.

Also, look at this in terms of the comments within Delaware's Doe v. Cahill. Contrary to the assumptions therein, one could not respond to the "untruths" on the initial website. One could not reach the same audience. However, one could respond on a secondary website, which had run the same material. But, at the end of the day, the "untruths" remained, but the response was removed.


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