Blog entries written by Anthony Dale Kuhn
| ACTA Under Probing Eye Of Senator Wyden | |||
| Written by Anthony Dale Kuhn | |||
| Wired.com - Threat Level : The oft-lambasted Anti-Counterfeiting Trade Agreement, or ACTA, has attracted the attention of US Senator Ron Wyden (D-Oregon), who, after learning of leaks detailing the provisions of the proposed international agreement, is demanding to be privy to more of the secret pact's contents. David Kravets reports: Sen. Ron Wyden (D-Oregon) is demanding that U.S. Trade Representative Ron Kirk confirm leaks surrounding the unfinished Anti-Counterfeiting Trade Agreement, being negotiated largely between the European Union and United States. Among other things, Wyden wants to know if the deal creates international guidelines that mean consumers lose internet access if they are believed to be digital copyright scofflaws. He also wants to know whether internet service providers could lose “safe harbor” protection for failing to police their customers’ digital content for copyright infringement violations. Such a move would heap copyright liability onto the ISP, and fundamentally alter U.S. copyright law. A representative for UST Rep. Kirk, Nefeterius Akeli McPherson (great name, BTW), responded to Wyden's huffy demand. She said "the office is "looking forward to responding" but for now, 'Mum's the word.' Other parties who *are* privy to the contents of the agreement, like Google and the Business Software Alliance, have signed confidentiality agreements with the USTR and are abiding by the terms of their contracts. Be sure to read the rest of Kravets' Senator Demands IP Treaty Details for more of this developing story. JS Online : The Kimberly-Clark Corporation is famous for its line of household products including the likes of Huggie-brand diapers and Scott-brand paper towels. What most people don't know is that the Wisconsin-based company leads the state in overall innovation with patents awarded being the measurement of success, despite competing for the 'IP King title' with the likes of S.C. Johnson, Masterlock, and Johnson Controls. John Schmid's recent article, Lagging research puts city behind , provides the gentle reader with more on Kimberly-Clark's intellectual property prowess. He writes: The company, which moved its headquarters to Dallas in the 1980s but kept its main research campus in Neenah, is by far Wisconsin's leading recipient of patents - considered one of the best measures of innovation. Last year, Kimberly-Clark received 155 patents, outstripping the University of Wisconsin-Madison (117 patents) and GE Healthcare Ltd., which has many operations in Waukesha (89 patents), according to U.S. Patent and Trademark Office data. Kimberly-Clark has been the state's leader in patents every year since at least 2004. Yet troublingly, much of the rest of the state - and Milwaukee in particular - isn't following Kimberly-Clark's lead. All of the companies, universities and garage inventors in the city of Milwaukee, for instance, combined to win 148 patents in 2009, an analysis of Patent Office data shows. And with a total of 1,291 patents, Wisconsin lags other Midwestern states, including Illinois, Michigan, Minnesota and Ohio. One of Kimberly-Clark's secrets of success is right out of a Madison Avenue marketing handbook. "'A large part of KC's rise to greatness was indeed by creating demand for products that did not previously exist,' said Jeff Lindsay, an intellectual property consultant in Neenah and former R&D executive at Kimberly-Clark. Linsday also suggested that IP is integral to the long-term success of virtually any business: "Patents are essential to maintain high margins." To find out what lessons other Milwaukee-based companies can learn from Kimberly-Clark's success, be sure to read Kravet's entire piece at the link above. Biotech Career : Got a little spare time on your hands? Stuck in an airport somewhere with nothing to occupy your time? Feel like challenging your gray matter with a little IP/ethics information? Look no further! A timely paper "concerned with the impacts of strict patents in the pharmaceutical industry, focusing on the Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement" will satiate your inner-intellectual property appetite, or possibly, gently lull you to sleep after a few minutes of "Hungry Chicken" in your chair. Here's the abstract to get you started: ‘As the ancient scourge of polio was rolled back by his vaccine 50 years ago, Jonas Salk, the inventor of the polio vaccine was asked why he never took a patent out on the medicine, a patent that would have made him wildly rich. “There is no patent,” he replied … “Could you patent the sun?”’ (Salon.com magazine 2001). This paper explores the impacts of pharmaceutical patents on drug availability in the third world, focusing on the impacts of the Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement. It highlights the value of essential drugs and generic production in developing countries, using India as a case study. It also explores alternatives to TRIPs and the role of the scientific community. The author hopes to point out that there are certain instances where discoveries of enormous importance to the human race need not be patented and monetized to the great benefit of the inventor.. Over the course of many pages, he tweezes out this final point: "The paper also highlights the importance of better understanding the impacts of TRIPs in developed countries, so that governments are pressed to change policies at the national and international level. The role of the scientific community is critical, in terms of having more say and control over drug policy, and helping to increase public awareness about drug policy. Ultimately, a concerted effort between the scientific community, public and NGOs can resist ‘unfair’ drug policy and some of the exploitative practices of pharmaceutical companies." Any one care to share their thoughts on the basic premise of this argument? Bueller? Bueller...? At least take a few moments to read more of Patents and Ethics in the Pharmaceutical Industry and increase your understanding of a complex and current affair. The Fordham Intellectual Property, Media & Entertainment Law Journal : New York's Metro Transit Authority (MTA) is up to its old IP antics again, this time with a dogged pursuit of anyone foolish enough to incorporate its symbols into an unlicensed product. Adam Neal explains: "Is the MTA ever really going to try and sell subway map bookmarks and T-shirts, like the ones in the shops littering Times Square? Can a 1 on a side of a train in a photograph be called a photographer’s copyright infringement? Are New York themed restaurants, posters and paintings not allowed to include subway signs or images? Do smartphone apps showing MTA published timetables violate the MTA’s economic rights? If the MTA can make money from these accusations instead of raising my MetroCard fare, I say go for it. Otherwise, many of the MTA’s symbols have simply become images of New York City as a whole and should be considered as in the public domain." Well, seems like they are trying to sue their way to financial solvency, what with a 400 million dollar funding shortfall, but is the money spent chasing after infringers the best use of limited resources, or mightn't an effort to attract increased ridership be a better use of these few remaining dollars? Read Neal's complete thoughts in his related article, MTA symbols: Intellectual Property or New York City’s Public Domain? , then decide for yourself. PatentBaristas.com : Ever hear of the practice of "false marking" and the potentially huge penalties that accompany it? Stephen Albainy-Jenei's Guest Barista Robert A. Matthews, Jr. has and he hopes his recent blog entry will help your understanding of a complex and interesting legal issue. Matthews opens with this explanation of false marking and the increase in the popularity of claims of the offense: Section 292 of the Patent Act provides that a person who falsely marks an unpatented article as being patented, where the false patent marking was done with an intent to deceive the public, [s]hall be fined not more than $500 for every such offense. See 35 U.S.C. § 292(a). The statute permits a qui tam action whereby any private citizen can sue to recover the penalty and retain for itself half of the penalty. Over the last few years, the false marking statute has gained a modicum of popularity as plaintiffs, including in some cases private patent lawyers, have brought false marking claims against defendant patentees who have marked products with expired patent numbers. Indeed, some commentators have described these plaintiffs as a new breed of troll, the marking troll. For a time the incentive to bring false marking claims was held in check by a limiting judicial construction of what constituted an offense for which the penalty could be quantitatively assessed. A new kind of troll, you say? Those trolls must be getting busy under the bridges if they've already spawned a new and insidious variety of IP lawsuit, nu? To learn more about what "every such offense" means (surely you understand that legally, the phrase doesn't necessarily mean what the layperson thinks it does), I highly recommend Matthews' scholarly False Patent Marking Roulette Wheel . Bonus IP piece o' the day: When To Take On Facebook, American Idol Or Virgin Mobile In An IP Fight by Vivek Wadhwa at TechCrunch.com . | |||
| [ Back ] | |||
| Chinese Government Accused Of Wholesale Software Theft | |||
| Written by Anthony Dale Kuhn | |||
| Fudzilla : The government of China's efforts to segregate Internet content into two distinct categories, OK for China and Not OK for China, has led it down the dark alley of software theft and misappropriation of American intellectual property. David Stellmack's Cybersitter comes out swinging, claims Software Piracy tells the tale of one company's struggle to get what it's got coming after discovering that its very popular website blocking software had been stolen by none other than the People's Republic of China. He writes: The complaint alleges copyright infringement, misappropriation of trade secrets, unfair competition and conspiracy. It also claims violation of U.S. criminal laws governing economic espionage by Chinese software manufacturers. The crux of the complaint alleges that the PRC government copied Cybersitter’s codes and then used the pirated code to block access by Chinese citizens to content that was determined “undesirable” by PRC government standards. Cybersitter’s complaint against the computer manufacturers is based on the fact that they were aware that the pirated code was on the PCs they were distributing and selling in China. The name of the software, which is no longer mandatory but is still being sold pre-installed on Chinese computers, is Green Dam Youth Escort. Cybersitter’s attorney, Gregg Fayer, is amazed that the Chinese could even attempt to claim that the product is home-grown. "'I don't think I have ever seen such clear-cut stealing,' said Fayer. 'They did a sloppy job of copying,' he continued, and they even included directions on how to get to the Cybersitter site." I mean, really? Couldn't even be bothered to cut out the code references to the original company whose software you are blatantly stealing? O'Reilly Radar : Andy Oram has a few thoughts to share with the gentle reader in his recent article, The fate of WIPO, ACTA, and other intellectual property pushes in the international economy , on the topic of the decline of United States' role as leader of the world in intellectual property influence. He writes: I am totally in favor of rewarding inventors, including large established firms, for the time, effort, and expertise they have put into their inventions. But as always, in IP, rewards for past work must be balanced against the promotion of further development. And right now, the world is moving more and more to crowdsourcing. The best ideas will increasingly come from people around the world pooling their ideas--including people with few resources and no connections to major institutions. Those institutions had better learn this lesson before they succeed in choking off inventions that make a life-or-death difference to people in developing countries. Oram also references the increasing presence of nations like Brazil, and other BRIC nations, at the IP negotiating table and notes that as they gain more influence, the old school leaders, like the US and various European nations, will slowly fade into the past. To read more on the these, and other issues like ACTA and WIPO policies, be sure to read the rest of Oram's ideas at the above linked piece. TechDirt.com : Oh, now this really takes the sports team/University logo greed cake. Mike Masnick explains in You Can't Be A Fan Of University Of Cincinnati's Sports Teams Unless You've Paid The Proper License : At one time, anybody could make up a shirt that said "Dallas Cowboys" or "Boston Red Sox", and then wear it or sell it. The fans wearing those shirts didn't care one whit about whether the Cowboys or Red Sox made the shirt or had taken a cut of the shirt-makers' revenue. But Major League Baseball and the National Football League, armed with surveys created by consumer survey expert Jacob Jacoby, started filing lawsuits claiming that some minority of fans would automatically assume that the Cowboys or Red Sox had endorsed or at least approved of the shirt sellers. By winning a couple of cases, they created a new rule of law -- you can't sell shirts showing support for a team without paying the team off for the privilege of doing so. Seems the University of Cincinnati is aggressively pursuing legal action against any one wearing clothing that could be deemed as supportive of their sports teams if they haven't paid for the privilege. "The University says it doesn't matter if the University's name or logo isn't on the clothing at all. Even a shirt that says 'Go Cats!' needs a license. Even worse, they're not just looking to stop people from selling such clothing, they're happily putting them in jail for it." File this one in the "Copyright Truth is Stupider than Fiction" file. Vey is mir! PatentBaristas.com : Stephen Albainy-Jenei presents a torturous legal tale of how IP licensing can be a briar patch of undesired difficulties if not carefully considered. Albainy-Jenei opens the story for the gentle reader: Eastman’s divestment of its PET business in the EU to Indorama ended up in Delaware federal court as the licensor’s patent infringement action. Eastman Chemical Company v. AlphaPet Inc. et al. (09-CV-971). Named as defendants are the Indorama licensees, and affiliates, and a U.S. subsidiary, AlphaPet. The complaint raises interesting problems about a licensor suing licensees for patent infringement along with a trade secret breach by the licensor’s employees. It underscores the importance of a well thought out forum selection clause that extends to all the licensees and affiliates. The rest of the piece is chock full of thick legal terms and in-depth commentary. Should that be your particular cup of IP tea, be certain to read the rest of Albainy-Jenei's Licensor, Sue Thy Own, For Thy Secrets . The TTABlog : Even religious orders can get in good with copyright and trademark protections, as John L. Welch's topical piece points out. From CAFC Hears Oral Argument Regarding Distinctiveness of Religious Habit , Welch unfolds things a bit: Two feuding religious organizations had faced off before the TTAB in a dispute involving the registrability of the religious habit design shown above for "clothing, namely [a] ceremonial habit worn by distinguished religious representatives in certain ceremonies" and for "promoting public awareness of the need for healthy and religions families in the United States." The Board found the habit design neither inherently distinctive nor possessed of acquired distinctiveness, and so it sustained the opposition. The foundation appealed only from the refusal regarding services and not the goods. Included in the piece are a link to the audio recording of the courts proceedings and a relevant comment from a reader who was present during the oral arguments. Good stuff and the reference to football team uniforms and their distinctiveness, and the ends to which teams will go to protect them, is quite germane to other of today's featured pieces. Bonus IP piece o' the day: Place Your Bets! Companies Line Up for Billion-Dollar Patent Showdown by Robert W. Ashbrook and Daniel M. Becker, M.D. at Law.com . | |||
| [ Back ] | |||
| Saudi Arabian IP Enforcement Working At Cross Purposes | |||
| Written by Anthony Dale Kuhn | |||
| Arab News : Too much of a good thing can be a detriment to effective intellectual property enforcement it seems. Galal Fakkar's recent article, Intellectual property rights violations affecting Saudi economy, says expert , highlights this unexpected side effect of too many cooks stirring up the IPR soup. He writes from Jeddah: The excessive number of organizations allowed to rule on issues concerning intellectual property rights in the Kingdom has weakened the application of laws and regulations concerning it, a legal expert has claimed. “The aggression against the intellectual property rights cost the Saudi economy billions of riyals every year,” [Majed Garoub] said. Even for an oil-rich region, this economic drain is taxing more limited financial resources and is due, in part, to the large number of cases being prosecuted on IP right infractions by various fractious agencies. Garoub: "'There are more than 100,000 cases of intellectual property rights now being investigated by all these bodies. This has prolonged the litigation period and made it difficult to follow up the cases,'" and is, in effect, hampering efforts to show the benefits of a strong IP legal system. To find out more about Saudi efforts to reform its burgeoning IP programs, check out Fakkar's entire piece at the link above. CIELA - China IP Litigation Analysis : CIELA is a fantastic resource for those interested in the current state-of-affairs in Chinese intellectual property litigations. Here's the premise behind this excellent tool: CIELA is an analytical tool for IP judgments from China's courts. CIELA compiles key data points from more than 7,600 published IP final judgments and settlements since 2006 into a searchable online database. Users can obtain statistics on IPR rulings from the whole of China or focus on specific courts. From the data available, CIELA can, for example, show which courts award higher damages, have relatively more experience in certain types of cases, or conclude cases more quickly. Along with a very thorough glossary of related terms and a concise and well-focused FAQ, CIELA's international team of IP experts make the site a go-to resource for researching China's IP court cases. And given that IP rights can be valued in the millions of dollars for a market-dominating patent, the rates CIELA charges for research are quite reasonable. "A basic statistical report (with charts) giving more details of particular cases or courts may cost approximately USD 500. A report with statistics on particular cases or courts, with commentary from a qualified practitioner or with copies of reference judgments may cost approximately USD 1,000-2,000." Sköne Oke : The United Kingdom has submitted a dissenting opinion on the secretive methods surrounding the contentious ACTA legislation. Here is the key passage from the Working Party of Information: More broadly with respect to ACTA the UK considers that transparency is crucial to ensure the legitimacy of the agreement and to stop the spread of rumors. We believe that the lack of transparency is unhelpful and do not believe that it is in the public interest. "Pip, pip, cheerio!" and all that: At least one of the potential signatories to ACTA is showing some backbone, nu? Read the remainder of the Council draft document in arebentisch's And the draft of the ACTA reply to me in English . The AM Law Litigation Daily : Andrew Longstreth reports on a recent ruling by the US Court of Appeals for the Seventh Circuit that might complicate things for future patent scuffles: The U.S. Court of Appeals for the Seventh Circuit ruled Tuesday in favor of the Wisconsin Alumni Research Foundation, which claimed that the drug company Xenon breached their agreement to share licensing fees for a patent covering a cholesterol-lowering enzyme. The 28-page ruling affirms the district court's award of $300,000 to WARF. But the bigger story is the Seventh Circuit's finding that the contract between WARF and Xenon trumped Xenon's patent law rights. ...Xenon's Sidley Austin attorneys had tried to invoke the law of concurrent patent ownership, which generally holds that joint patent owners don't have to share licensing revenue. But both the district court and the Seventh Circuit found that the rule doesn't apply when the parties have reached an agreement to the contrary. Even if that agreement does not explicitly revoke the law of concurrent patent ownership, the Seventh Circuit concluded, the contract holds. Longstreth's In Affirming Claim Against Xenon in Licensing Fee Dispute, Seventh Circuit Says Contracts Trump IP Rights should provide the additional necessary details to satisfy the curiosity of the gentle, and inquisitive, IP reader. IPwatchdog : The ever helpful Gene Quinn has a new post that aspires to fix the busted USPTO pendency problem wide open. From Quinn's Offering Help: A Solution for Addressing the Patent Backlog , we learn of his suggestions to clean up the USPTO's act for them. He writes: By spending any time on Bilski the Patent Office is just wasting time, and will have to eventually double back and redo all that work. So rather than putting precious resources into action and bringing them to bear on settled areas of invention massive amounts of examiner hours will be spent dealing with an area that will change substantially within 6 months. Imagine what would happen if the Patent Office devoted those resources to other applications, cleared out backlogs in other areas and then the Supreme Court issues its decision that says everything is patentable or nothing is patentable. In either scenario the Patent Office could quickly plow through the applications, either issuing or denying once and for all. Following this course in 2010 could result in a massive decrease in the backlog by the end of the fiscal year. Indeed, the in Bilski ruling that is coming down the pipeline from SCOTUS will cause the Patent Office and Kappos cadets plenty of busy work while they wait to undo what is done once the SCOTUS decision reverses Bilski. Inefficiency in action, or just business as usual. Bonus IP piece o' the day: Cleveland BioLabs Receives First U.S. Patent for Radiation Protection Drug CBLB502 at CNN Money . | |||
| [ Back ] | |||
Show all blog entries
Show archived blog entries by this user