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 . | |||
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| 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 . | |||
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| 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 . | |||
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| Paper Finds Non-Practicing Entities (aka Patent Trolls) Actually Increase Patent Quality | |||
| Written by Anthony Dale Kuhn | |||
| The 271 Patent Blog : A recent paper highlights the roll non-practicing entities (NPEs) play in the innovation market and Peter Zura takes a few moments to analyze and discuss the findings of Timo Fisher and Joachim Henkel's "Patent Trolls on Markets for Technology - An Empirical Analysis of Trolls' Patent Acquisition". From Zura's One Reason Why Improving Patent Quality Won't Solve the "Troll Problem" comes one of the principle discoveries of the report: Surprisingly, and contrary to common belief, we find that troll patents are of significantly higher quality than those in the control group. This result implies that elevating minimum patent quality will not put an end to the patent troll business, and suggests that it is sustainable in the long run. So, it would seem that those who favor increasing the bar for the patentability of an idea in order increase quality and thereby eliminate "patent trolls" (and by proxy, their poor quality patents) have it all wrong. Zura next lists a number of other points of interest from Fisher and Henkel's work, including this unexpected gem: Interestingly, the patent crowdedness of the technology field, measured by the number of patent applications in the patent’s technology field, has no significant influence on NPEs’ acquisitions. This finding underlines that it is not the crowdedness of a technology field, but rather the density of overlapping patent rights that makes an acquisition favorable for a NPE. For the remaining bits and pieces of pertinent information on NPEs and their influence on patents and patent policy, be sure to read Zura's entire piece at the above link. ArsTechnica.com : Joel Tenenbaum's back with a new reason for his P2P piracy behavior and Nate Anderson has all the juicy parts for you, the gentle and constant reader, in his topical piece, Tenenbaum's P2P use: the labels made me do it! Anderson writes: For journalists, the Joel Tenenbaum P2P case has been the gift that keeps on giving. Case in point: the team's court filing asking for either a new trial or a vastly reduced damage award. It turns out that the labels were at least partially responsible for Tenenbaum's years of P2P sharing. Strange assertions, nu? Are today's youth really P2P zombies, downloading and sharing files unwillingly and against their best interests simply because they couldn't stop themselves? Here's the meat of the matter from Harvard Law professor Charles Nesson, Tenenbaum's lawyer: "His downloading was, in reality, an expression of both the social force of technological revolution and a consequence of the plaintiffs’ marketing strategies," says Nesson. "The plaintiffs’ conduct can be seen as effectively luring Tenenbaum into a vibrant technologically-assisted youth culture. The plaintiffs’ affirmative marketing activities and their refusal to offer an equivalent online alternative created a situation akin to 'attractive nuisance.'" Well, if anyone knows how to twist around an argument to absurdity, it would be a Harvard lawyer, right? The sympathetic judge might very well at least decide to drop Tenenbaum's current huge fine down to a more reasonable $750 per infringed song, but I doubt it will set a very strong precedent of a defense claims that amount to little more than "The Devil made me do it." IPWatchdog.com : Never one to mince words, Gene Quinn is in fine, "tongue-in-cheek" form in his latest post, Patent Wishes for 2010 . Here's one of my favorite parts of this lengthy effort; Quinn's thoughts on Wish #2, Adequate Funding for the Patent and Trademark Office: The single word that best describes Congress is “clueless.” To test this theory at a New Years Eve party I asked friends and family members, many who were not lawyers, whether they would leave their kids with a Member of Congress to act as a babysitter. Yes, I know I am a fun guy, but you can’t imagine the thought provoking discussions that ensued! In any event, the answer from everyone, even die-hard liberal Democrats who largely agree with what Congress is presently doing, was a resounding NO! Nevertheless, we send them to Washington, DC to represent us, make decisions for us, steer the direction of our lives and shape the lives of our children. Yet no one wants them to babysit. How curious! One reason why you would never want any Member of Congress to be a babysitter is because in the face of overwhelmingly clear and correct choices they always seem to make the wrong choice. You wouldn’t want to hire a babysitter who is going to have a crazy party that will require the cops to visit, would you? Of course not. Yet we entrust them to figure out the economic crisis and chart a responsible path forward. Sometimes I wonder if we aren’t the crazy ones! Quinn's humorous bit points to Congress' lack of foresight when it comes to the need to adequately fund the USPTO to help reduce the years' long backlog of patent applications. He then fires a warning shot across the bow of the USS DoNoGooders with this closing riposte: Wake up Congress! Small business are not expanding, investors are leaving and short-sighted innovation policy is preventing a recovery. I wish that fee diversion be stopped forever, and the USPTO budget increased by at least 50%! With trillions being spent like monopoly money $1 billion to jump start a new tidal wave of innovation would reverberate through the economy and do what trillions of dollars of stimulus were supposed to do, but never did. This is Grade-A stuff here, people. Be sure to read Quinn's remaining 4 wishes for 2010 and see what other kind of mischief he envisions for patents and IP in the coming year. Inventors Digest : Once considered to be no friend of inventors and small business people, USPTO chief David Kappos might just be the single saving grace in a growing morass of patent troubles. Mike Drummond offers up his thoughts on Kappos' new role as the head of the troubled IP agency and what he aims to do to get the ship back on course, even as budgetary icebergs lay ahead. Here is just one example of how quickly Kappos is making changes to stale and unpopular policies in an attempt to garner support for his planned reforms: Kappos was sworn into office in August. One of his first initiatives was to kill a set of rules that his predecessor, Jon Dudas, had hoped would reduce the growing backlog. The proposed rules would have limited patent applications to five unique claims and 25 total claims per invention. The proposed rules also would have limited the number of requests to reconsider patent applications as well as requests for continuations, which would curb the number of chances to amend a patent application. “As a member of the community, I was quick to say, ‘we’re not doing this anymore,’” Kappos told the American Intellectual Property Law Association annual meeting in Washington, D.C. The rules had upset the patent bar, among others, who said the USPTO director didn’t have the authority to impose such a sweeping set of rules changes without congressional approval. The large, and meaningful, reforms that Kappos proposes, in addition to his efforts to eliminate Dudas' hated limits to patent applications, place him in the unenviable position of being asked to do so much with so little, to paraphrase a favorite office quip. Drummond sums up Kappos' mission: "Kappos merely faces some of the biggest challenges the U.S. patent system has ever confronted. To recap, he seeks to reduce a record backlog of applications, speed up the freakishly long application process, improve the quality of patents and beef up the agency’s IT infrastructure – and do all of this with fewer examiners and fewer dollars." Click through to Drummond's Obama’s Man at the USPTO Seeks to Rehab the Agency and scope out the rest of the details of Kappos' appearance at the 14th Annual Independent Inventors Conference. The New York Times : In the Big Apple's Central Park, an intellectual property battle is unfolding that is slowy becoming a significant thorn in the side of those hoping to re-open a renowned, but bankrupt, culinary destination. Glenn Collins writes on the value of a name in City Is Denied a Trademark on a Backup Name for Tavern : ...[T]he United States Patent and Trademark Office has rebuffed New York City in its attempt to register the name Tavern in the Park as a backup designation for Tavern on the Green. It is the latest skirmish in the ongoing legal war over who owns the name of the bankrupt, now-shuttered landmark restaurant in Central Park. ...[A]n examining attorney for the Patent and Trademark Office ruled that the name Tavern in the Park “merely describes a feature or characteristic of the applicant’s services, in that they take place in a tavern-style restaurant in a park,” adding that the name Tavern in the Park only “describes a restaurant located in Central Park,” without identifying the full scope of the restaurant and bar services being provided. To the lay person, such minutiae might seem a bit nit-picky, but there are huge sums of money wrapped up in trademarked names and the Tavern on the Green name might end up being a very useful asset to creditors seeking recompense for their losses. Here are two examples Collins gives of other names of note and their auction value: "Last year the trademark and brand of the bankrupt Circuit City electronics chain sold for $17.5 million, and the trademark and logo of the bankrupt KB Toys chain fetched $2.1 million at auction." A pretty penny or two, indeed. Bonus IP piece o' the day: Microsoft legal unfazed by Ubuntu Windows XP GUI clone by Emil Protalinski at ArsTechnica.com . | |||
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| Bono Offers His Thoughts On The Lingering Death Of Big Media | |||
| Written by Anthony Dale Kuhn | |||
| The New York Times : U2's front man, Bono, recently weighed in on a number of pertinent issues and among that number is the role he sees intellectual property playing as we move forward into 2010. In his op-ed piece, Ten for the Next Ten , Bono writes: Caution! The only thing protecting the movie and TV industries from the fate that has befallen music and indeed the newspaper business is the size of the files. The immutable laws of bandwidth tell us we’re just a few years away from being able to download an entire season of “24” in 24 seconds. Many will expect to get it free. A decade’s worth of music file-sharing and swiping has made clear that the people it hurts are the creators — in this case, the young, fledgling songwriters who can’t live off ticket and T-shirt sales like the least sympathetic among us — and the people this reverse Robin Hooding benefits are rich service providers, whose swollen profits perfectly mirror the lost receipts of the music business. Indeed, people want to watch and listen to whatever it is that strikes their fancy whenever, and where ever, they please, and if corporate DRM and flawed profit models mean consumers can't get what they think they have a right to have, then yes, they will resort to theft and piracy to do so. All Hollywood and Big Media have to do is figure out a way to monetize this unquenchable demand for low-cost universal delivery of content and they'll be laughing all the way to the bank instead of crying foul every time some pre-teen hacks a way to do what IP laws prohibit. Or? ChiefOfficers.net : Woe to him or her that thinks they can upload a pre-release (and unfinished, in this case) copy of a potential blockbuster movie and get away with it. Case in point: Mischa Wynhausen and the movie Wolverine. Wynhausen is the second person charged in relation to the theft of the pre-release version which was produced by an agent on behalf of Paramount Pictures for promotion on a TV programme called "The Tonight Show" and its subsequent posting on the Internet. Earlier this year, Jack Yates, 28, of Porter Ranch, was sentenced to six months in prison after pleading guilty to a misdemeanor offense of criminal copyright infringement. Yates, who at the time was an employee of the company producing the copy, illegally made an additional copy of the film. Yates later distributed the copy of the film to others, who provided the movie to Wynhausen. Wynhausen uploaded the movie on 19 and 20 June, 2008. Wynhausen’s conduct led to the movie being made available to Internet users. And to think this particular theft involved a copy "with the CGI missing and white-outs where they were due to be inserted" that was nonetheless recopied and distributed for sale to a bunch of fanboi rubes. Was it worth it, Mr. Wynhausen? Seems he got off easy: "...although the maximum sentence for the offence is three years' jail, prosecutors have agreed to a deal under which he pleads guilty and receives three years' probation in the light of his co-operation in the investigation." Check out Intellectual Property: conviction for uploading pre-release version of film to internet for the rest of the story. ArsTechnica.com : Even though Apple Computer has vocally supported DRM-free content on its very popular iTunes music service, the company is not very fond of making similar efforts to open its own proprietary products to DRM-free software apps and add-ons. Jacquie Cheng provides some details of Apple's strong grasp on the use of intellectual property to maintain an iron-clad grip on its own products and services in her topical piece, A look at Apple's love for DRM and consumer lock-ins . She explains: Apple has insisted for years that it would embrace an entirely DRM-free world if music, movie, and TV producers would get behind it. Those walls have largely been broken down when it comes to selling some forms of media (namely music), but Apple isn't exactly anti-DRM in any other sense. Aside from still offering DRM-laden movies and TV shows on iTunes (which can reasonably be attributed to content producers), Apple itself is happy to employ DRM to keep its own products from being used in unapproved ways. The most obvious is the fact that the company uses DRM to guarantee that iPods and iPhones can't be used with any other software besides iTunes. Not only that, but Apple also uses technology to block out non-Apple devices from syncing with iTunes—à la the Palm Pre saga. Apple also happily employed HDCP in its implementation of the Mini DisplayPort for its portable machines starting in 2008. This means that certain movies that are HDCP "aware" can now detect whether the movie is being output to an approved display—if not, the movie won't play. DisplayPort itself was designed as an open, extensible standard for computers that offers lower power consumption over DVI, so it was Apple's choice to massage HDCP into the mix for its own (and partners') interests. This is, of course, on top of the HDCP that's already implemented in the Apple TV. So what ever happened to "What's good for the goose is good for the gander," Mr. Jobs? Afraid to eat a little of your own dog food, are we? You know it might not be as tasty as a salad made up of 1000 dollar bills lightly tossed in balsamic vinaigrette but hey, if it's good enough for your customers and market partners, shouldn't it be good enough for you? I'm just saying... moderngirly : Here is an interesting proposal for the gentle reader: A full-length Creative-Commons movie for you to watch about remixing, or "mashing up", first, and then read the accompanying piece by Ms. Girly entitled Intellectual Property. Here's an executive summary of moderngirly's thoughts on IP for the busy IP exec in a hurry: "I do think intellectual property is a good thing and has led to a lot of the progress we have seen in society today. However, the duration of patents, copyrights, and etc. have become too long. Intellectual property permits a monopoly - yes, it is good for innovation in the short run so inventors may reap their rewards, but in the long run will impede progress because it limits competition. Not to mention, if the invention is potentially life-saving, it is wrong to bar it from those that cannot afford the inflated prices for such a long time. Also, the system becomes compromised when companies do nothing but go around buying up patents and making money off of the legal rights and suing of other groups/people but doing little creating/innovating of their own. Sounds a little like a record company, no?" But really, check out the movie (Canadian, no less) and see if you don't lean a little bit in favor of creativity when presented with an IP vs. Mashup choice. The 271 Patent Blog : Here's some unwelcome news for those with hopes of a 2010 USPTO pendency turn around, courtesy of Peter Zura: A confluence of factors in fiscal year 2009, including depressed revenues, continuing declines in the patent allowance rate, recent court decisions, and the absence of inflation has highlighted major, unacceptable deficiencies in USPTO's budget formulation and execution processes. USPTO's financial situation in fiscal year 2009, while anomalous, may be repeated again. The decision to rely solely on fee income has removed USPTO from the safety net of the appropriations process and has placed it at the mercy of the economy; it has allowed USPTO to build a boom time infrastructure that it cannot support in an economic downturn. Complicating and contributing to this situation is the fact that USPTO's budget formulation process does not reflect the agency's resource requirements for the relevant fiscal year. Fiscal year 2010 will likely present a new and more daunting set of financial challenges for the agency and achievement of key performance measures will likely continue to decline. What the wha...?! And who exactly is to blame for this likely decline in key performance measures due to the hacking out of 100 million dollars from the USPTO budget? Zura writes, "Interestingly, none of the congressional sources for the story were willing to identify which lawmaker or legislative aide was directly responsible for the decision." Just imagine the infamous Tammany Hall political cartoon with the robber barons all pointing to each other in a circle and you get the picture. Read the rest of Zura's (Not So Much of a) Happy New Year For The USPTO for more. Bonus IP piece o' the day: Seagate may face noise reduction patent payout by Chris Mellor at Channel Register . | |||
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| Twisty Intellectual Property Case Haunts Pretzel Baker | |||
| Written by Anthony Dale Kuhn | |||
| Law.com : Intellectual property lawsuits often time follow a tortured path and a recent case in New Jersey closely resembled the item of dispute: pretzels. Charles Toutant's Pretzel Company's Owners Allege Tax Lawyer Got Lost in Twists of IP Law in the New Jersey Law Journal provides the pertinent details in this complex and contentious snack food dispute. He writes: Bernard Eizen's Web site bills him as a "renaissance" lawyer, but the tax and estates attorney may have exceeded his erudition when he ventured into the realm of intellectual property. That's the nub of a malpractice suit by former clients, the owners of a pretzel business who say the Philadelphia lawyer's inexperience cost them lots of dough -- $100 million's worth. Eizen represented Warren and Sara Wilson, a Pennington, N.J., couple with a thriving business called The Snack Factory, for their personal estate and tax planning concerns. But when he learned of a deal in the offing between Wilsons' company and Pepperidge Farms Inc., he "leveraged his position of trust to become the family's one-stop shop for all personal and corporate needs," the Wilsons allege in The Snack Factory v. Eizen, Fineburg & McCarthy, 3:09-cv-6482, filed in federal court in Trenton on Dec 24. The allegations in the case are too difficult to easily summarize, but as luck would have it, a full-length explanation is provided in Toutant's piece. In response to the claims of negligence, the accused stands firmly aloof. "Eizen says in response to the suit that Snack Factory 'at all times' had 'separate counsel at a firm specializing in intellectual property law,' though he declines to elaborate, and he calls the suit's allegations 'baseless."' PCWorld.com : The U.S. International Trade Commission (ITC) is again the chosen playing field for a number of patent disputes involving ever popular IP lawsuit targets Sharp and RIM. According to a recent piece by Martyn Williams, the ITC is preparing to investigate claims of patent infringement brought by Samsung Electronics and patent-holding company Prism Technologies, respectively. From US ITC to Investigate Sharp, RIM on Patent Complaints we learn more about these allegations: The complaint (ITC number 337-TA-699) against Sharp was made by Samsung Electronics and claims LCD panels and modules made by the Japanese company infringe on Samsung's intellectual property. At its center are patents that cover the generation of high quality images on gray-scale LCDs (U.S. Patent No. 5,844,533), control signalling inside LCD panels (U.S. Patent No. 6,888,585) and a technique for improving image quality (U.S. Patent No. 7,436,479). And: The filing against against RIM (ITC number 337-TA-697) was made by Omaha-based Prism Technologies. The company makes money from acquiring patents related to Internet security and e-commerce and either licensing or attempting to enforce the technologies. The ITC has been asked in both instances "to issue an exclusion order and cease and desist order should the complaints be found to be correct", which is the commission's most powerful tool to stop copyright fraud. Things could, of course, take a more reasonable tone if the parties involved were to enter into some kind of licensing agreement. Such a detente would most likely hold down legal costs and, in effect, multiply any revenue generated by the funds not spend in court. Madisonian.net : In a much-needed effort to recover the oft-neglected scholarly works of intellectual property, Michael Madison, Professor at the University of Pittsburgh School of Law, presents an introduction to his 4-part series on the Lost Classics of Intellectual Property Law . Here are the criteria Madison used when selecting various academic IP tomes for inclusion in his series: The work must have been first published in 1985 or earlier. Any cutoff date is arbitrary in a sense. I chose 1985 primarily to avoid contests about whether work by still-active scholars should be included. Careful readers will note the presence of early work of some people who are, today, leaders in the field. They will also note that the 1985 date means that I omit important early work by others. I might have chosen 1987, or 1989, or 1990. But I didn’t. Twenty-five years is a nice round figure. The list is, however, "... incomplete and provisional, and they reflect some quirks. I’m interested in the intersection of intangible property law and chattel property law, for example, so Zechariah Chafee shows up (in the Copyright list). I have mostly omitted references to well-known primary sources (the Statute of Anne, the Statute of Monopolies, the writings of Thomas Jefferson, and the speeches of Thomas Macaulay)." If you are a young (at heart or otherwise) IP acolyte, I highly recommend you read the intro to Madison's selected references before diving into the meat of the matter. Onwards and upwards, gentle reader! PatentDocs.org : And in a separate list of IP-related stories, Donald Zuhn presents his timely series with this intital effort, Top Stories of 2009: #10, #9, and #8 . This particular group of pieces focus on bio tech/pharma and is running for its third year. In case it has already been swept to the dustbin of 2009, Zuhn recalls #8 in his list, Federal Circuit Decides In re Kubin, to remind the constant reader of a significant Federal court ruling. "One interesting aspect of the Kubin oral argument involved an exchange between Judge Rader and USPTO Associate Solicitor Janet Gongola regarding the Office's motivation for revising Example 11 of the new Written Description Training Materials (which were issued in March 2008). Judge Rader essentially accused the USPTO of revising Example 11 so that it would no longer be detrimental to the Office's position in Kubin." Be sure to check out this piece, and the rest of Zuhn's remaining offerings, to slake your thirst for the best of the best. HardwareCentral : Taiwanese analog integrated circuit (IC) maker Richtek Technology filed a patent infringement complaint against chip manufacturer AMD and a quartet of video card makers and is looking to the ITC for help in the prosecution of its upcoming legal battles. Andy Patrizio reports: Richtek Technology claims AMD (NYSE: AMD), Hong Kong-based Sapphire Technology, Taiwan's uPI Semiconductor, and U.S. firms Diamond Multimedia and XFX Technology infringed on three of its patents. It also claimed the companies used its business secrets "inappropriately." Richtek said that it had been informed earlier this week that the ITC had begun conducting an investigation into the matter. The company has also filed lawsuits against the companies in district court in northern California, asking for an injunction and compensation, it said. AMD and XFX were both closed for the holidays and unavailable for comment. A spokesperson for Diamond declined to comment. As mentioned in the second of today's featured articles, the ITC is often brought in as a heavy to pound some sense into infringing companies and their "fraudulent" products. "'Using the ITC as a club to prohibit shipments is a common tactic used by patent attorneys and it tends to get the attention of the company being accused. Case in point is the recent Microsoft Word XML case. So it's the same kind of mechanism,' he [analyst Jon Peddie] said, referring to Microsoft's recent loss on appeal to i4i." Be sure to read Patrizio's entire piece, AMD, Video Card Makers Sued in Patent Case , for the rest of the story. Bonus IP piece o' the day: "CAB CALLOWAY" TTAB Ruling Goes to Southern District of New York for 1071(b) Review by John L. Welch at The TTABlog . | |||
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| Microsoft Not Hot On The Trail Of Chinese Windows XP Impersonator | |||
| Written by Anthony Dale Kuhn | |||
| Seattle Post-Intelligencer - Blogs : Nick Eaton blogs on Microsoft's non-reaction to a Chinese company's Ubuntu-based Windows XP OS impersonator dubbed "Ylmf OS". From Eaton's Microsoft mulls response to Linux-based XP clone come more details of what appears to be a lost battle: I contacted Microsoft to see if they knew of Ylmf OS and what legal options they might have. Because Ylmf OS is based on Linux, and not a straight Windows XP hack, the applicable law here is foggy. Especially since intellectual property law enforcement in China is so lax. "We have not really evaluated the code here, but assuming that this is a Linux implementation we agree that the existing laws against software piracy are unlikely to apply here," a Microsoft spokesperson told me via e-mail. "So we'd have to look to the protection offered under intellectual property law generally in the relevant jurisdictions. "But it would be difficult to talk about the legal options in a general sense as each instance is unique, depending not only on the local IP laws in play (in this case in China) but also the technical implementation itself. We'd need to drill down into the specifics to understand better what Microsoft IP rights may be at stake here." Sounds like a bunch of lawyer-ese for "we're probably not gonna do anything." Topic expert George Haley, a business professor and director of the Center for International Industry Competitiveness at the University of New Haven in Connecticut, offers his two cents on the subject: "Microsoft's first move should be to try settling with Rain Forest Wind Guangdong Computer Technology Co., Haley said. That could net Microsoft some copyright royalties. Going through the Chinese courts would be nearly impossible, he said." Ah-so! No use bringing in the legal heavies if there's no hope of navigating the Chinese legal system, nu? ArsTechnica.com : Nate Anderson's recent piece, Obama admin: Mandated exemptions can strengthen copyright , turns decades of increasingly strict copyright protections on its head. He writes: The Obama administration has offered up a strange mix of copyright policies in its first year (both ACTA and Creative Commons, for instance), but it has at least made clear that "better copyright law" does not always mean "more copyright protection." In the middle of December, for instance, the administration took a stand in support of a World Intellectual Property Organization treaty on copyright exceptions for the blind. That stand is one that is not gaining much support by the "stronger-protections-are-better" crowd and Anderson sums up the beliefs of the likes of the US Chamber of Commerce and Big Content in this tongue-in-cheek passage: "There's no interest in balance here, and no real attempt to act like there should be. Copyright protections move naturally and logically in only one direction, toward stronger enforcement mandates. Governments are allowed to pass certain exemptions to copyright, but if they don't, and a host of blind people have limited access to certain works, too bad." Looks like the Obama administration faces an increasingly difficult task if it wants to convince those with "the goods" to give up a bit of their loot to help blind people gain increased access to copyrighted works. The Patent Prospector : Also not one to mince words, The Patent Hawk's most recent riposte against all things patents deigns to reveal how to repair the broken US Patent and Trademark Office. Here's just a small sample of what the Patent Hawk writes in Broken: The USPTO : This begins a series on what is wrong with patents in this country. The constitutional goal of patents is "to promote the progress of science and useful arts." But patents present irrepressible contradictions of purpose by the players of the patent game, and the pursuit of self interest by the players reveals their flaws and limits. Which is to say that the room for improvement would fit the several elephants of what is obviously wrong, but seldom acknowledged by those involved. Aside from incompetence, which weighs in heavily, two factors stress the patent system: politics and money. Let's begin with the place where patents are birthed: the patent office. Much more of this type of witty writing lays in store for the brave, and constant, reader who firmly grasps his or her mouse in their hand and clicks onwards. Just one more juicy tidbit needs be included before moving on to the next topic: "The agency has recently launched a campaign to hire back into the fold examiners who quit, thus regaining experience and some talent while saving training costs. The response of silence has been deafening. One erstwhile examiner told me, 'I'd rather wait tables than go back to the PTO.'" Man, that's gotta sting a bit, don't you think? The Examiner : Paris Hilton's back in the headlines and this time it's not because she forgot to wear her knickers while out in public. Matt Carter reports: "Paris Hilton has her name on dozens of properties, but her shoe business may be landing her in some trouble. According to a new report by TMZ, the hotel heiress / star of 'Paris Hilton's My New BFF' is facing a lawsuit by a rival shoe company who claims that Hilton stole their insole design (embedded with a heart) for her own fashion line." Hilton is surely not going to take such claims laying down, but how she will respond to allegations of patent theft remains to be seen. Read Carter's Paris Hilton sued by shoe company over patent infringement for fuller details. TechDirt.com : Mike Masnick is never one to miss a chance to stab at the heart of Big Content and their never-ending quest to own everything, everywhere, all the time. His timely piece, Film Your Kid Dancing To A McDonald's Happy Meal CD... Get A Takedown Notice From Google , is no exception. He lets fly with this opening salvo: "One of the more famous examples of abuses of the YouTube video takedown process was the case of Lenz vs. Universal Music, which involved Universal Music issuing a YouTube DMCA takedown to a woman who posted a very short clip of her baby dancing to a Prince song that was playing in the background. It was a clear case of fair use, and while after the woman filed a counternotice Universal chose not to sue, the EFF filed a lawsuit against Universal Music, saying that the DMCA notice was fraudulent, since it was such an obvious case of fair use. While Universal Music argued that since fair use is just a 'defense' and not a 'right' it need not consider fair use in sending a takedown, the court disagreed." He then follows up with the titled example of a child being filmed for 30 seconds dancing to a McDonald's Happy Meal toy, in this case a music CD, and explains how Big Content is still not getting it. But if you want to hear that part of his missive, you'll have to take control of things and follow the above link to the article in question. Bonus IP piece o' the day: The patent system is broken, and Nokia Vs. Apple Continues. by Joshua Schnell at Macgasm.com . The whole Innovators-Network Crew wishes you and yours a very happy New Year's. May it bring you health, wealth and happiness. | |||
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| China's "Bubble Machine" Could Bring Economic Despair In 2010 | |||
| Written by Anthony Dale Kuhn | |||
| The Wall Street Journal - World : The stage is set in China for a large economic event in the coming year, due in part to the lack of intellectual property protections offered to small and medium businesses. Daniel H. Rosen's China's scope for clever job creation further develops this theme for the gentle reader. He writes specifically on the troubles surrounding the problems of "overcapacity" and government meddling in the private market space: In the case of healthcare and education, Beijing has chosen to save resources or transfer them to state-owned enterprises rather than make sufficient public expenditures, while simultaneously preventing private enterprises from investing in these areas as businesses. There are some low-price private hospitals and clinics in China, but with limited resources and market shares. In manufacturing, the cost of capital to build up white collar employment for private and SME firms is typically two-to-five times that of the low nominal rates heavier state-owned enterprises enjoy. And when they are able to build a brand and their own intellectual property, poor enforcement of regulations and intellectual-property protection jeopardizes their ability to recover their investment. Without adequate IP protection, the article suggests, SMEs are unable to justify spending hard-won capital on the research and development of marketable ideas and products, proving again that some modicum of IP protection is necessary for a strong private sector to flourish and grow. Be sure to check out the rest of Rosen's thoughts on China's "bubble machine" and learn what he predicts for the Chinese economy in 2010 via the above linked piece. TechDirt.com : The days of good-old backyard, shade-tree mechanic auto repair are slowly coming to an end and the increasing use of intellectual property as a means to stop people from working on their own cars is attracting consumer interest, most of it negative. Mike Masnick reports on this disturbing trend in his topical blog post, How Automakers Abuse Intellectual Property Laws To Force You To Pay More For Repairs. Here's the gist of the piece's argument: "Basically, as cars become more sophisticated and computerized, automakers are locking up access to those computers, and claiming that access is protected by copyrights. Mechanics are told they can only access the necessary diagnostics if they pay huge sums -- meaning that many mechanics simply can't repair certain cars, and car owners are forced to go to dealers, who charge significantly higher fees." Like car dealerships charging hundreds of dollars for special software necessary to read proprietary OBD II codes, which is in direct contradiction to a law that states such codes be accessible to anyone with a generic code reader. Or the ignition key that costs hundreds of dollars to be programmed by a special computer at the dealership. Seriously, what ever happened to cutting a new key for $2.50 at the local hardware store? Roanoke.com : As part of bankruptcy proceedings, Roanoke-based Luna Innovations Inc. is brokering "a deal to acquire the intellectual property assets of Tego Biosciences Inc., a subsidiary of Pasadena, Calif.-based Arrowhead Research Corp." Sarah Bruyn Jones explains how this purchase compares to the improper use by the nanotechnology company of yet another competitor's protected IP which landed Luna in court. She writes, "A hearing set for Jan. 12 in Roanoke's bankruptcy court will likely release Luna from bankruptcy and end a multimillion-dollar lawsuit between Luna and Hansen Medical Inc. Luna entered bankruptcy protection after a California jury ordered it to pay Hansen $36.3 million for breach of contract and misappropriation of trade secrets. Earlier this month, Luna and Hansen agreed that Luna would pay $5 million over four years and give Hansen 9.9 percent of outstanding common stock." The Tego deal would help solidify Luna's position in the carbon nanomaterials market for medical purposes and includes "a license to a program for developing new medicines based on carbon nanomaterials for Parkinson's and other neurodegenerative diseases" among other IP rights. Read Jones' Luna purchases rival's patents for a great example of the double-edged sword that is intellectual property protection. TeaNews.com : According to a recent piece by Phillip Hogan, Sri Lanka is looking to protect one of its most profitable export products, Ceylon tea, against the devaluation of the much-loved drink by inferior blends bearing the same name. Hogan writes, "Sri Lanka looks set to secure a claim, under the current World Trade Organisation’s (WTO) Trade-Related Aspects of Intellectual Property Rights (TRIPS), for Geographical Indicators (GI) to protect the prestigious wording: ‘Ceylon Tea’." This protection would apply "in all of the WTO’S 150 member countries" if granted. Hogan adds a bit of valuable pricing information to help bolster the argument for protection of Sri Lanka's very valuable "Pure Ceylon Tea" products: "Sri Lanka produces very high quality tea and this comes at a cost. The cost of production of tea in Sri Lanka is roughly US$ 1.75 per kilogram, compared with India’s US$ 1.25 per kilogram, Kenya’s US$ 1.00 per kilogram and Vietnam’s much lower cost of US$ 0.75 per kilogram." Read Sri Lanka to Bid for Exclusive Rights on ‘Ceylon Tea’ for more information. PC World : Tony Bradley's Nokia Launches New Assault in Patent Battle, Your Move Apple describes the increasingly acrimonious legal war between the two technology titans as one that may "involve hundreds of millions of dollars in annual royalties which would certainly pad the winner's bottom line while reducing the profits of the losing party." This posturing is nothing new in patent fraud claims and one-upsmanship, Bradley notes. "Often, cases like this involve each party escalating the suits and countersuits until the root issue is lost in the legal morass and eventually the two reach a settlement. Perhaps some money exchanges hands. A cross-licensing agreement is entered into where they agree to share each other's allegedly infringed technologies, and nothing much changes in the grand scheme of things." Kind of a tempest in a teacup affair with much ado about nothing, if you ask me. Bonus IP piece o' the day: Kenya's Anti-Counterfeiting Act Challenged As Violating The Right To Health by Mike Masnick at TechDirt.com . | |||
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| Eliot Spitzer: US Patents Will Continue To Decline Without Additional R&D Spending | |||
| Written by Anthony Dale Kuhn | |||
| Slate.com : Apparently Eliot Spitzer has doffed his old hat and donned that of economic pundit if a recent column published under his name is any indication of his new profession. From Inventing a New Economy come further details of what Spitzer makes of patents and their role in the United States' economic future. He writes: Historically, our economic growth has depended in large part on our ability to generate new ideas and innovations. In addition, while there can be substantial discussion about which policies will best keep our innovation engine churning, increased investments in education—especially in technical fields—and basic R & D seem critical to any agenda. If we want robust economic growth to return, then we had better figure out how to reverse some of the trends suggested by this quick examination of patent data. The data Spitzer refers to indicates an ever-increasing foreign component of the total number of patents filed in the US, which supports his suggestion that America is suffering from a decline in its ability to come up with innovative technical ideas that fuel its knowledge economy. Borrowing from the World Intellectual Property Indicators 2009 reports, Spitzer parses a select group of data to support his assertion that the US is falling behind; this same data should be beneficial to the interested intellectual property reader. Click through to either piece for more material on what Spitzer calls "the core intellectual foundation of production and intellectual activity." The Citizen Daily New spaper spaper : In response to "a workshop on livestock keepers' rights, traditional knowledge and intellectual property organised by an Arusha-based non governmental organisation[,]" the government of Tanzania has implemented a new program to help educate its citizens about intellectual property. Zephania Ubwani reports from Arusha on The Tanzania Intellectual Property Rights Network (TIP- Net): Mr Laltaika, currently a PhD candidate at Max Planck Institute in Germany, said the network would mainly advance education and awareness of Tanzanians on intellectual property rights. "TIP - Net is here to demystify intellectual property concept in Tanzania due to unawareness of intellectual property and which is costing us dearly," he told The Citizen in an interview. And as is increasingly the case, representatives of the rights of the indigenous peoples in Tanzania are stepping up to ensure their special local knowledge is recognized and protected under the new system. Israel Ole Karyongi, chairman of the Tanzania Pastoralists and Hunter-Gatherers Organisation (Taphgo), which organised the workshop, decried rampant misuse and abuse of the intellectual property rights of the local communities. These, according to him, include 'misappropriation' of the rich traditional knowledge and cultural expressions of the Maasai pastoralists to an extent of turning them into commercial advertisements with no benefits to the community itself. The next step in Tanzania, and other developing nations, would be to ensure the holders of local knowledge gain legal protection against appropriation for profit without due compensation. Read the rest of Ubwani's commentary on this IP-favorable move in Property rights body launched . Journal Sentinal Online : John Schmid reports on the recent spending bill passed by the US Congress and how an unkind budget cut at the US Patent and Trade Office is going to help pay for it. From Schmid's topical piece, Congress deals funding blow to Patent Office : A Journal Sentinel investigation published in August documented how congressional diversions of the agency's income from 1992 through 2004 left the Patent Office incapable of keeping pace with the volume and complexity of the applications it receives. The backlog has grown to more than 1.2 million applications, which the agency has said could take at least six years to get under control - assuming it receives the funding to hire and train new examiners. But a budgetary provision that could have allowed it to spend up to an additional $100 million during the current fiscal year was stripped on Dec. 9, the final day of budget negotiations. Congressional response to inquiries about the lack of USPTO dollars in the spending bill have been sadly lacking in substance. "A spokesman for Rep. Alan Mollohan (D-W.Va.), who chairs the subcommittee that directly oversees appropriations for the Patent Office, declined to comment. A spokeswoman for Sen. Barbara Mikulski (D-Md.), who chairs the equivalent Senate subcommittee, denied in an e-mail that Congress cut or diverted the agency's spending. Mikulski's spokeswoman did not return phone calls." This cut comes despite President Obama and USPTO chief David Kappos' wishes to the contrary and indicates a deep misunderstanding at the Congressional level of what drives economic recovery and job creation: innovation. And for innovation to be be a valuable investment it needs to be protected with intellectual property rights. And these rights require a speedy and selective patent process which can not exist without proper funding. Fie on Congressional penury and myopic budget cuts. Linux Insider : Despite its fervent claims to the contrary, China appears to be unable to stop even the most blatant of copyright frauds, including a notable release of a Linux-based operating system that borrows heavily from Microsoft's Windows XP operating system. Katherine Noyes' China's Latest Knockoff: Ubuntu in XP Clothing provides more information on this latest in a string of IP thefts that plague Sino-American relations: Chinese-language consumers unwilling or unable to pay the cost of a legitimate copy of Microsoft's (Nasdaq: MSFT) Windows XP now have a new alternative: a clone of the operating system that's based on Ubuntu. Dubbed "Ylmf OS," the software is available from Rain Forest Wind Guangdong Computer Technology as a free download on a dedicated Web site. The system is based on Ubuntu 9.10 and integrates Wine, according to the page. Also included are OpenOffice 3.1, CompizConfig Effects Settings Manager, Firefox and Pidgin for instant messaging. One Ubuntu expert adds that the release of a Linux-based Windows XP emulator is quite paradoxical, given the grocery list of problems afflicting the long-time Microsoft product. "'If this is an effort to pass off the XP desktop theme as the XP operating system, I don't think it is going to work,' Joe Casad, editor in chief of Ubuntu User magazine, told LinuxInsider. 'The irony is that this faux Windows system will be safer, more stable and less susceptible to malware than the system it is pretending to be,' Casad noted." No word in the article if Microsoft is preparing to sic its team of lawyers on Rain Forest Wind GuangDong Computer Technology but maybe they are contemplating the purchase of "Ylmf OS" with hopes of incorporating some of its features into the next iteration of the Windows OS platform. ArsTechnica.com : And speaking of borrowing from other people's ideas for profit, none other than Thomas Edison can be found guilty of exactly this infraction. Mike Masnick's How Thomas Edison, Patron Saint Of Patent Holders, Copied Others' Works To 'Invent' The Light Bulb explains that it's not just the Chinese who have been known to "borrow" from other people's work for their own benefit: We've written in the past how Thomas Edison -- who is often held up by patent hoarders as the perfect example of why patents are necessary -- didn't actually invent any of the stuff he's famous for "inventing." Instead, he's most famous for taking the work of others and innovating around it just slightly, to find a good market -- but then also patenting the work of others and blocking anyone else from entering the market. I admire his innovative side and his marketing prowess, but find his abuse of patents to be unfortunate. Masnick references a Wired.com piece by Priya Ganapati that provides more on Edison's famous use of design iteration and marketing savvy to invent himself as the father of the light bulb. Be sure to check out both articles to gain a deeper understanding of how patents are often not a case of invention but rather of good timing and the ability to convince the public and/or patent officials that a given idea is yours to claim. Bonus IP piece o' the day: Ex-Employee Says Seagate Took Technology From Convolve at The New York Times by Ashlee Vance and Diana B. Henriques. | |||
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| Board of Patent Appeals and Interferences Makes Changes To Software Patentability Rules | |||
| Written by Anthony Dale Kuhn | |||
| ArsTechnica.com : Although it isn't as well-known as some of its more recognizable government committees, the Board of Patent Appeals and Interferences (BPAI) has come to a rather significant conclusion regarding the patentability of software applications. Timothy B. Lee reports on this new constraint of what's patentable: The Board of Patent Appeals and Interferences (BPAI), a key panel within the Patent Office, has tightened the rules for American software patents. The recently-released decision builds on last year's landmark ruling by the United States Court of Appeals for the Federal Circuit in the case of In Re Bilski. In that case, the Federal Circuit focused on business method patents and had left key questions about the patentability of software-related inventions unanswered. The BPAI finding might be short-lived as the Supreme Court is due to rule on the Bilski case in the first quarter of the new year. Patent examiners are probably crossing their fingers in hopes of not having a massive rewrite by SCOTUS that would cause them to retool their methods twice in such a short time frame. Read the rest of Lee's US Patent Office tightens the screws on software patents for the rest of the details of this sea-change in the validity of software-related patents. WisconsinRapidsTribune : Author Jeff Starck offers a real-life account of an innovator who struggles to protect his intellectual property due to a huge backlog of patent applications at the USPTO in his recent article entitled Patent wait stifles release of new products . Starck writes: David Baker, founder of PDM Solar, has developed a thermal transformer that generates energy to provide heat, air conditioning and electricity in homes and businesses. The Wausau man thinks his invention could both earn him a tidy living and lead a green revolution. All he needs are investors for his company. His problem: He has filed for seven patents with the U.S. Patent and Trademark Office, including one that dates back to 2005, but he has yet to receive a ruling on any of them. The delay threatens individual innovators such as Baker and could be slowing an economic recovery. Baker's solar energy idea is one that could certainly develop into a viable business but without a patent he lacks the cachet to attract venture capitalists' dollars and their expertise in bringing a product to market. In other words, the pendency problem at the USPTO is directly influencing the recovery of the economy and should be the first item on agency chief David Kappos' punch list. The Register-Guard : Universities are often very protective of their schools' logo and related intellectual property and the University of Oregon is no exception. Sherri Buri-McDonald reports on the U of O's trademark management office's take on IP licensing: The UO licensing office welcomes proposals for innovative products, Dyste said. "Our preference is if it doesn’t reflect badly on the university — and our fans, students and alumni would like this — we’d like to give them the ability to (make it)," he said. Even with its longtime licensees, the licensing department must approve each product’s design. Dyste said his office has reviewed more than 600 Rose Bowl designs since Oregon beat Oregon State in the Civil War on Dec. 3. If a business is one that hasn't previously applied for a licensing agreement with the U of O, the trademark management office performs due diligence checks to ensure the validity of the business's request. Royalty rates for use of the trademarked logo or mascot run at 8 percent and are expected to increase to 9 percent according to Matt Dyste, director of marketing and brand management. That's not a huge cost of doing business with the U of O but is definitely a factor when developing a viable product to sell at a sustainable profit level. Read Buri-McDonald's UO trademark office evaluates product proposals for the rest of the story. Center for Global Development : Matt Hoffman offers up his thoughts on the role of intellectual property at the United Nations Climate Change Conference in Copenhagen in his topical piece, Intellectual Property Rights at Copenhagen and Beyond . He writes, "According to CGD Visiting Fellow Thomas Bollyky, the debate about intellectual property rights need not stand in the way of a global deal at Copenhagen or beyond. Bollyky’s CGD Note Intellectual Property Rights and Climate Change: Principles for Innovation and Access to Low-Carbon Technology asserts that negotiators can harness the potential of intellectual property (IP) by creating 'global access principles' for all UNFCCC-affiliated multilateral funds. These principles would transparently state the details of IP access and ownership, providing the incentives, clarity, and predictability necessary for private-sector partners to invest in developing and deploying low-carbon technologies. Rather than being a stumbling block for negotiators, intellectual property could be a tool that increases the deployment of low-carbon technologies." This assertion that IP could be used to help foster low-carbon technologies relies on the largess of first-world companies and does not free developing countries from having to stand, hat in hand, hoping for a handout. In his optimistic closing paragraph, Hoffman writes, "Principles of access for low-carbon intellectual property could help create agreement at Copenhagen today, and foster the deployment of low-carbon technologies tomorrow." Such an agreement remains elusive, and unlikely, despite all opinions to the contrary. CNN Money.com - Business : Interested in learning how a small Canadian company took on one of the world's leading software companies for software patent infringement and won? Cindy Waxer's How to sue Microsoft - and win provides an example of one long, drawn-out battle that ended in just that manner. She sets the stage for the gentle and constant reader. "i4i's legal victory is being touted as a modern-day tale of David and Goliath. So how does a tiny software outfit in Canada defeat one of the world's best-known corporate behemoths? Underdogs, take note. Here's a road map for waging war against a giant -- and winning." One of the most important parts of i4i's strategy lay in its very careful choice of venues. i4i's decision to have its case heard in a U.S. District Court for the Eastern District of Texas -- where neither i4i nor Microsoft has its headquarters -- prompted many legal and tech pundits to cry foul. "Typically, the court in Tyler, Texas, is one that a lot of companies seek out for high-tech cases," says Tim Hickernell, an analyst with Info-Tech Research Group in London, Canada. "The perception is that folks in Tyler aren't very technically oriented." Rounding up a herd of Texas yokels to determine the fate of your company's future doesn't seem like the best course of action but in complex and technical cases, it seems to be a popular place to settle patent infringement disputes. Waxer supports this assumption with this tidbit: "In fact, 358 of the 2,866 cases related to copyrights, patents and trademarks were filed in the district in 2008, according to the Administrative Office of the U.S. Courts." Yee ha! Bonus IP piece o' the day: Monsanto Monopoly Stifles Seed Innovation by caheidelberger at Madville Times . | |||
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| China Falling Behind In IPR Compliance For WTO Membership | |||
| Written by Anthony Dale Kuhn | |||
| AFP : China is not keeping up its end of the anti-piracy bargain according to US officials, and is in direct contradiction to its previous promises to do so as a condition of membership in the World Trade Organization. P. Parameswaran reports: Copyright piracy in China remains at "unacceptably high levels," causing "serious harm" to American businesses, the top US trade official said in an annual report to US Congress. US Trade Representative Ron Kirk said in the mandatory report on China's compliance with its World Trade Organization accession obligations that Beijing was not taking adequate steps to enforce intellectual property rights laws. He said enforcement of China's copyright protection "remains a significant challenge." This lack of compliance highlights China's lack of seriousness when giving international lip-service to its efforts to reduce intellectual property fraud and theft. Parameswaran explains, "China acceded to the World Trade Organization eight years ago. The terms of its accession called for China to implement numerous specific commitments over time. All of China's key commitments should have been phased in three years ago." So what exactly will get China to finally come into compliance with WTO IP standards? Read US says copyright piracy in China still 'high' to learn what lies in store for China and its efforts to align its IPR enforcement with global standards. InformationWeek.com : The long-awaited outcome of the i4i versus Microsoft XML patent infringement case is now clear and Microsoft will be scrambling to come into compliance with the terms of the ruling. Paul McDougall's Microsoft Word Gets Facelift enlightens the gentle, constant reader: Microsoft has issued a patch for its Office 2007 product that brings the desktop suite into compliance with a court edict. The 2007 Microsoft Office OPK Master Kit Download, available on Microsoft's OEM Partner Center, strips Word and other Office programs of custom XML editing capabilities. "The following patch is required for the United States," Microsoft said in a message on the site. The move comes after an appeals court on Tuesday ordered Microsoft to stop selling Microsoft Word 2007 and other Office 2007 products by Jan. 11 because the software infringes on a patent held by a Canadian company. The judge also hit Microsoft with a $290 million fine. All is not lost for Microsoft, however, as the judiciary left Microsoft a present under the tree, along with a lump of coal in its proverbial stocking. "The court left an out for Microsoft. The company can continue to sell Word 2007 after Jan. 11 if it removes the offending technology from the product. The patch appears to signal Microsoft's willingness to comply with the order." With more than "$3 billion" in yearly revenues at stake in the software giant's Office Suite, Redmond bigwigs will likely be passing out Christmas gooses and steaming hot puddings as they celebrate a narrow miss. The Patent Prospector : Gather 'round little ones and read a related but not so very Christmas-y tale of the legal goings-on behind the scenes of Microsoft's procedural mistakes during the i4i trial as presented by none other than the Patent Hawk. His story opens... i4i sued Microsoft for a pissant feature in Word: editing custom XML. But to i4i's business, the feature was puissant. A seven-day trial found Microsoft willfully infringing a valid patent, with a jury award of $200 million. "Although statutorily authorized to triple the jury's damages award because of Microsoft's willful infringement, the district court awarded only $40 million in additional damages. It also granted i4i's motion for a permanent injunction." The inevitable appeal, widely expected to go more Microsoft's way than not, did not. Procedural fumbling by supposedly the best lawyers money can buy sold Microsoft short. Herein, CAFC case law heavy on burden and sufficiency, in a case practically covering the gauntlet of patent enforcement. The remainder of this lengthy tale examines these numerous fumblings by Microsoft and reveals how such a large number was calculated when the damages were tallied. Unpreserved for the win. IPWatchdog : Not just kids have wish lists for Santa; IP industry heavies have them, too. Gene Quinn revisits his previous year's Patent Wishes for the New Year tradition with a new effort that enlists the aid of said hitters for their wishes. From Industry Insiders Make Patent Wishes for 2010 , Quinn explains his premise: It is that time of the year where we all start to look ahead to the new year, and in this case the start of a new decade. Last year I wrote an article titled Patent Wishes for the New Year, and I have been working on my wish list already and will launch the article soon, likely on December 31, as I did last year. I thought it might be interesting to contact a variety of industry news makers, policy wonks and those on the front lines to see what they wish for in the year ahead. I was lucky enough to get a handful of responses from folks with a variety of experiences. So without further ado, here are the wishes of some industry insiders for 2010. Click through to read the patent wishes of Jim Greenwood, President & CEO of The Biotechnology Industry Organization (BIO), Michael Specht, a director in the Electronics Group of Sterne, Kessler, Goldstein & Fox and Editor of The Reexamination Center, and Leo Mazur, an inventor and the President of The Inventors Society of South Florida among other IPR luminaries. Law.com : The somehow still popular soft, spongy Crocs brand of shoes has seen its own share of patent woes and was featured in a lawsuit as an example to help disprove the "point-of-novelty" case. Sheri Qualters reports on the U.S. Court of Appeals for the Federal Circuit's consideration of International Seaway Trading Corp. v. Walgreens Corp: The International Seaway ruling builds on a 2008 Federal Circuit en banc decision in Egyptian Goddess Inc. v. Swisa Inc. The Egyptian Goddess court ruled that the sole test of whether a design infringes a patent is the ordinary observer's viewpoint, not the novelty test. International Seaway sued Walgreens in February 2008 for selling clogs that allegedly infringed its patent, along with Touchsport Footwear USA Inc. for importing the shoes. In the majority opinion in Seaway, Circuit Judge Timothy Dyk upheld a Southern District of Florida ruling that the exterior features of the clogs patented by the plaintiffs were substantially similar to a patent held by Crocs Inc., which is not involved in the case. Crocs' plastic slip-on shoes became wildly popular a few years ago for men, women and children, and a sales spike prompted the company to quickly roll out many colors and design variations. A similar ruling in the case in point "will prevent an inconsistency from developing between the infringement and anticipation analyses, and we will continue our well-established practice of maintaining identical tests for infringement and anticipation" according to Circuit Judge Timothy Dyk. Get the rest of the story in Qualters' Federal Circuit: Ordinary Observer Test Applies to Anticipation of a Design Patent . Bonus IP piece 'o the day: Argentina Extends Copyright Term by Andre Paine at Billboard.biz . Happy Holidays to you and yours and may the New Year bring you health, wealth and prosperity. | |||
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| GM Accused By Swedes Of Sacrificing Saab To IP Gods | |||
| Written by Anthony Dale Kuhn | |||
| Guardian.co.uk : Intellectual property has taken center stage in a number of automotive brand sales as American manufacturers Ford and GM try to shed unprofitable niche marques. According to a recent piece by Andrew Clark, Swedes are beginning to question the long drawn-out story of GM's attempt to sell off Saab and intellectual property could be playing a major role in the difficulties. From Clark's Swedes suspicious of General Motors in fight for Saab , the stage is set: In the carmaking city of Trollhättan near Sweden's rugged south-west coast, a fight for the future of Saab is going down to the wire. And in the eyes of many Swedes, it should never have come to this. There is suspicion that an American multinational has proved far too eager to sacrifice a part of European manufacturing heritage. And further on, some insight into the IP difficulties: A significant dilemma for GM is that if it sells Saab, then potentially valuable, commercially sensitive technology could find its way into the hands of a competitor that might, ultimately, emerge as a viable rival – particularly in untapped emerging markets with long-term potential such as Russia and China. "The worst nightmare is where your intellectual property comes back and competes against you," says David Cole, chairman of the Michigan-based Centre for Automotive Research. "The general belief is that with innovation becoming the critical factor in the motor industry, protecting your intellectual property has never been more important." Some worry that GM is willing to force Saab to fall on its own IP sword rather than bend a bit and allow the floundering marque to find new life under different ownership. And to add to the indignity, GM is not being very forthcoming with members of the Swedish media who are frustrated at a lack of information: "Wary of public opinion, GM is not owning up to any reluctance to sell. In a conference call with international media on Friday, GM's vice-president of corporate planning, John Smith, stonewalled persistent questioning about the "obstacles" that GM claimed had jeopardised negotiations with Spyker. In frustration, one Swedish journalist asked: "You're winding down one of the most famous businesses in Sweden. How is it that you can't tell us what happened and what issues arose?" Maybe Ford could offer GM some advice after successfully sealing the deal with Chinese automaker Geely despite seemingly unsurmountable IP obstacles? Law.com : The long-suffering Patent Reform Act of 2009 has been mostly dormant since April but that hasn't kept both proponents and opponents from working to influence the bill's contents and chances of becoming law. Sheri Qualters reports on a move by one group comprised of small-business and inventor-rights groups who are opposed to some of the act's critical provisions. The coalition's letter to the SBA states that the reform bill would "inflict unprecedented harm on small firms that rely on patented innovations." The group opposes the bill's plan to shift the U.S. patent system from a "first to invent" to a "first to file" system. It also opposes the so-called post-grant review provision that would allow challenges to issued patents for up to 12 months. "The proposed reforms greatly weaken our U.S. patent system, which has historically rewarded innovators for creating novel industries and businesses that generate large numbers of new jobs," stated Renee Kaswan, founder of IP Advocate, which represents the interests of academic inventors. The SBA is hedging its bets a bit with this statement in response: "SBA spokesman Michael Stamler said the agency needs more time to study the matter before commenting." If this kind of stuff floats your boat, be sure to read the rest of Qualters' informative IP War's Latest Volley: Groups Seek Changes in Patent Reform Bill . Dallas News : Officials at the U.S. Customs and Border Protection Agency are reminding holiday shoppers to stay away from "toys that might be dangerous for children or break copyright laws." More details from Customs officials warn of toys they have intercepted : Authorities last year seized more than 1,500 shipments of products that failed to meet consumer safety standards or violated intellectual property laws, said Harold Woodward, director of the agency's field operations in Miami. Products intercepted so far include toy drums with small parts that present a choking hazard, yellow toy ducks that contain lead paint, and bright green lighters that look and sound like frogs but don't have safety mechanisms. "Obviously, that would be very attractive to a child," Woodward said. "But you open this up, you get the sound effects, you also get a rather significant flame that comes from this." Not exactly what any child includes on their Santa Claus wish list: a fire-breathing frog and cute little toy duckies laden with mind-numbing lead paint. And I thought getting a large lump of coal and some switches in my stocking was bad! CNNMoney.com : A recent ruling by a Federal judge reaffirmed an earlier finding that cigarette maker RJ Reynolds did not infringe on another company's patent for harvesting tobacco. Via the DowJones Newswire: "In June, a jury in Baltimore rejected Star's allegations that R.J. Reynolds, a unit of Reynolds American Inc. (RAI), encouraged its farmers to practice Star's curing invention without permission. Jurors ruled that RJR didn't infringe Star's patent and that the patent was invalid. Star was seeking several hundred million dollars in damages. Tuesday, a judge rejected Star's motion for a new trial." The patent in question is "for a method of curing tobacco that reduces the some toxins in the end product" which should come a welcome news to those fervently choking away on the still deadly cancer sticks. More details can be found in Star Scientific To Appeal Patent Ruling In RJ Reynolds Suit . TechDirt.com : The International Olympic Committee is known for rabidly protecting its intellectual property in a manner that goes above and beyond the normal levels necessary and a recent revelation by Mike Masnick reaffirms this long-term trend. Masnick writes: Ah, the Vancouver Olympics. The example of intellectual property entitlement insanity that just keeps on giving and giving and giving. It's no secret that the Vancouver Olympics has convinced the Canadian government to grant it extra special intellectual property rights that go way beyond what would be allowed for any normal business. This includes getting special control over words like "2010," and "Vancouver" if you use them in any way associated with the sporting event known as the Olympics (also protected). It's using these extra rights to stop ticket reselling and to take down signs they don't like (even on private property). But this is just the proverbial tip of the iceberg for IOC's militant IP enforcement rules. Masnick points out a late incident that boggles the mind: "Michael Scott points us to a complaint from a musician who wrote a song which she thought the Olympic committee might like. She sent it to them, and was surprised to get back a contract demanding she sign over all ownership and royalties associated with the song before they would even listen to it. And, of course, it would also grant them the ability to do whatever they wanted with the song." That's about 2 pounds of IP crazy in a one pound bag, don't you think? Read Vancouver Olympics Demands All Copyrights And Royalties From Musician Just To Hear Her Song for the rest of Masnick's coverage on this "truth is stranger than fiction" tale. Bonus IP piece o' the day: Monsanto focus shifting with Roundup Ready soybean patent expiration in 2014 at AgricultureOnline . | |||
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| Cisco Reduces Patent Applications In New Strategy | |||
| Written by Anthony Dale Kuhn | |||
| BusinessWeek.com/NEXT : US patents have taken an unexpected downturn in the face of the extended economic recession. According to Michael Arndt, there may also be positive ramifications underlying the recent drop in patent applications. From Cisco's Patent Strategy: It's More Than Numbers : There’s plenty of reason for Americans to fret, as Mark Chandler, general counsel for Cisco Systems, tells me. The U.S. is turning out way to few scientists and engineers, he says. And it forces foreign students to go back home once they graduate, denying the U.S. their productivity years. “Unless we invest in training science and engineering graduates and encouraging people around the world to stay, we will continue to lose ground innovation competitiveness,” he warns. Chandler also explains why Cisco has changed their patent program: ...Cisco never filed patent applications willy-nilly, he stresses. But like most high-tech companies, Cisco used to pursue quantity, in what he says was an patent arms race. Everyone wanted as many patents as possible to stake claims and defend their IP. The thinking was that the patents might hinder competitors or at least require them to pay royalties to license patented tech. Cisco has more than 5,000 patents and another 10,000-plus pending. “The arms race approach doesn’t pay off,” he says. “It doesn’t do you a lot of good to have a lot of patents.” The real meat of Cisco's argument is Chandler's reference to "non-practicing entities" further along in the article. To learn more of the changing landscape of patents and protecting them, be sure to read Ardnt's complete piece at the above linked page. Verizon Wireless News : A recent win in court has a number of wireless carriers breathing a sigh of relief. Nancy Stark explains: A federal jury last week found that Verizon Wireless, other wireless carriers and Novatel Wireless, in offering high-tech Internet access modem cards, did not infringe a patent that was filed 19 years ago and focused on automatic dialing. The patent suit was brought by DNT LLC, a unit of Acacia Research Corp., earlier this year in the U.S. District Court for the Eastern District of Virginia in Richmond. The jury deliberated less than two hours in reaching their unanimous verdict that the modem data cards sold by the wireless carriers did not infringe DNT’s patent. That patent, which was originally filed in 1990, envisioned an improved auto-dialer for use on touch-tone phones. DNT had sought over $170 million in damages for the alleged infringement. The reasons for the quick jury decision should have been obvious to DNT, who in effect, must have spent considerable financial resources pursuing multiple wireless carriers. They might have been better off coming with a new idea, as a 20 year-old tech idea is about 200 computer patent years old. For the rest of the story, check out Stark's Patent Verdict Favors Verizon Wireless, Other Carriers And Novatel Wireless . Search Engine Land : Microsoft's new search engine Bing is drawing claims of trademark infringement by a business named Bing! Information Design. Here's the state of affairs as Bing! (not Bing the search engine) sees it: They filed their case on Wednesday, December 16th in Circuit Court of the City of St. Louis. The Simon Law Firm in St. Louis even released a press release on the suit saying, “For nearly 10 years my client has been using the Bing! mark,” explains Anthony Simon. “My client selected this unique mark to distinguish itself in the marketplace and invested substantial time and effort promoting its business using Bing!. Microsoft’s use of the identical mark and its aggressive advertising have gutted all of my client’s efforts to distinguish its business and created confusion that must be remedied.” Microsoft counters Bing!'s assertions of trademark dilution and confusion with this rejoinder: "We believe this suit to be without merit and we do not believe there is any confusion in the marketplace with regard to the complainant’s offerings and Microsoft’s Bing." Whether or not the two companies can come to an out-of-court settlement or are willing to fight the judicial battle to come won't change the fact that the names are quite similar and both are related by use to information. Barry Schwartz has more on this case of mistaken trademark identity in Bing! Sues Microsoft Over Trademark Infringement . Jonathan Pink's Intellectual Property Report : Lucasfilm Ltd., creator of the ever-popular Star Wars series of movies, attempted to restrict the creation of retail products by their original creator but learned that just because you win a lawsuit in America does not mean you can enforce it abroad. Jonathan Pink fills us in on the details in his topical piece, Storm Troopers, Copyright Infringement and a Bit of Clever Luck . He writes: ...Lucasfilm Ltd. prevailed in a U.S. court against British national, Andrew Ainsworth, ruling that Mr. Ainsworth (one of the costume makers who made the storm trooper helmets used in its Star Wars films -- can you say "cool!"), replicated those helmets and sold them over the Internet to customers in the U.S. Mr. Ainsworth is nothing if not industrious -- and creative, and apparently rather clever. But when LucasFilm tried to stop Ainsworth from making the products in his homeland, they hit an unexpected speed bump: Lucasfilm tried to enforce its U.S. judgment against Ainsworth in England, and the court there said "I should say not!" (or upper crust words to that effect). Now, a second British court has sided with the first, ruling that Mr. Ainsworth is safe from a U.S. default judgment entered against him. You see, the Brits find Mr. Ainsworth's Storm trooper helmets to be utilitarian and not works of art and are therefor not afforded IP protections. And UK courts even had the stones to decide that Ainsworth's sales of his helmets online do not run afoul of US copyright laws. As Pink puts it, "So for now, the Force is with Mr. Ainsworth" but one never knows when the Emperor will decide to strike a blow for the Dark side. TechDirt.com : And speaking of IP abroad, Mike Masnick comments on the Vatican's new copyright policy to protect all things Papal from unauthorized use. Masnick quotes from the Vatican's statement clarifying their stance on Pope products without the official seal: "...the Vatican has felt it necessary to declare that "it alone has the right to ensure the respect due to the Successors of Peter, and therefore, to protect the figure and personal identity of the Pope from the unauthorized use of his name and/or the papal coat of arms for ends and activities which have little or nothing to do with the Catholic Church." The move seems directed at Catholic entities, Masnick posits, "since every country has their own laws that this shouldn't impact [them] at all." More details on this Papal bull in Masnick's Vatican Creates Special 'Copyright' On All Things Pope-Related? Bonus IP piece o' the day: PlasmaTech executes intellectual property purchase agreement with RF Wireless at iStockAnalyst.com . | |||
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| U of So. Mississippi's "The Garden" Offers IP-centric Startups A Leg Up | |||
| Written by Anthony Dale Kuhn | |||
| Hattiesburg Amercian : If your startup isn't adverse to the potential for a natural (rather than man-made) disaster, and has the need for a special setting to develop your intellectual property, the University of Southern Mississippi has just the thing: The Garden. Ed Kemp reports: The For Rent sign on the University of Southern Mississippi's The Garden comes with a grassroots recruiting pitch. "If you're an entrepreneur with intellectual property in smart materials - high performance materials - and you want to start and grow a company, we think we have a unique facility for you to do that," said Cecil Burge, vice president for Economic Research and Development. The development of the previous home of the Van Hook Golf Course into a cutting-edge startup incubator with high tech resources on tap has been anything but easy. Kemp continues: Then came Hurricane Katrina. The physical damage shut down construction for three to four months, but the financial reverberations were worse. "We went through a design, and then we bid the building (The Accelerator) at the very height of the Hurricane Katrina run-up in construction costs," Burge said. "So our initial estimates where we could build the building for $288 a square foot turned into $400. The building has cost $26.6 million overall. What Burge calls a "second hurricane" occurred with the recent collapse of the commercial real estate market. The Garden should soon be up and operational and is looking for entrepreneurial tenants to join the 4 companies already signed up, so be sure to check out Kemp's Garden almost ready to open for more on the campus' bid to attract creators of valuable IP. DownloadSquad : Microsoft recently patented an idea for the generation of "realistic" avatars. Sebastian Anthony comments on this unlikely bit of IP: "It's interesting to see such a technology being worked on. You can see its appeal -- perhaps for family video games, like on the Wii -- but you can also imagine more nefarious uses. (Would all the blonde 15-year-olds from California suddenly disappear from the Internet?) Slashdot is reporting that its primary use will be to encourage users/gamers to exercise: your health records would be used to generate a fat avatar in a gaming environment. The theory is that it would drive the gamer to lose weight, with hopes of becoming a prettier Elf." Who knows if people will attempt to game this attempt by Microsoft to bring realism to one of the most fantasy-filled places in the universe, the Internet, but bless 'em for trying. Read Anthony's complete take on this patented silliness in Microsoft submits new patent: now watch as the number of well-endowed girls on the Internet declines . NextGov : Do intellectual property rights benefit "green" businesses? A fine question, indeed. Jill R. Aitoro's Intellectual Property: Hindering Green IT? provides a few thoughts on this increasingly important issue: Coinciding with Copenhagen climate talks, Sen. Kirsten Gillibrand, D-N.Y., introduced a bill on Thursday calling for the protection of intellectual property rights for clean energy and environmental technology in any global climate change agreement. As of this blog post, full text of the bill was not available on the Internet, but apparently it complements similar bipartisan language included in the House Foreign Relations Authorization Act (HR 2410), which passed this summer. Even though the US is seeking additional protections for its homegrown IP, there are many countries that would rather be able to get their hands on the US' hard-won technologies at bargain basement prices. "Nearly 80 countries submitted a proposal to discuss the weakening of global intellectual property rights for new innovations designed to reduce carbon emissions." I'm thinking that even if the United States is interested in helping third world countries to develop methods of reducing green house emissions there won't be much support for any effort to force companies to give away valuable ideas and products at home. Ludwig von Mises Institute : If you happen to be one of the people who think intellectual property protection is a bunch of brown bunkum, then you should read Stephan Kinsella topical piece, The Case Against IP: A Concise Guide . Of particular interest is a quite comprehensive list of anti-UP resources that Kinsella has assembled. Of course, like any good sword, this one is two-edged; the same information against IP could be used to help gather ammunition to help fight the good IP battle by those in favor. Chasing The Power Curve : Book review time, courtesy of Greg Herlein. He writes, "A *great* way to get past the hyperbole on the Internet and learn a lot about Intellectual Property is to read “Intellectual Property, The Tough New Realities That Could Make or Break Your Business” by Paul Goldstein (Penguin Group ISBN 978-1-59184-177-7)." This book could be very useful to the patent law beginner, Herlein notes: "Patent Law in particular can be tough to grok, but this book makes it very approachable with well-chosen case studies. I found it an excellent way to fill in gaps in my knowledge of IP issues. I’ve filed probably 30 applications and spent countless hours talking to patent attorneys. Yet this book was still very useful for me. I highly recommend it." Read the rest of his thoughts on this cold, hard look at IP in Herlein's aptly titled piece, Review: Intellectual Property by Paul Goldstein . You can order the book from Amazon here . Bonus IP piece o' the day: DOJ Works Overseas to Protect Intellectual Property by Ryan J. Reilly at Main Justice . | |||
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| DRM Turning Up In The Most Unlikely Of Places | |||
| Written by Anthony Dale Kuhn | |||
| ArsTechnica.com : " What is DRM doing in my garage? " asks Nate Anderson. Or more specifically, in his automatic, radio-controlled garage door opener. Anderson explains his plight: I never expected to stumble upon a Digital Millennium Copyright Act (DMCA) story while standing beneath an unshielded light bulb in my garage, but that was before I picked up the manual for my garage door opener. I recently moved houses, and during a Saturday largely spent clearing a terrific mass from my new garage, I came across a tattered copy of the owner's manual for the garage door opener, thoughtfully left behind for my use. I read through the manual looking for information on how to acquire another remote control unit, when my eye was caught by the sort of statement one does not expect to find in any sort of literature relating to the humble garage door. "If this Security+ garage door opener is operated with a non-rolling code transmitter, the technical measure in the receiver of the garage door opener, which provides security against code-theft devices, will be circumvented," said the manual. "The owner of the copyright in the garage door opener does not authorize the purchaser or supplier of the non-rolling code transmitter to circumvent that technical measure." Anderson then adds this query to his growing list of questions: "What was this nonsense about circumventing technical measures doing in my garage door opener manual, and why did the manual go out of its way to make it clear that I was not "authorized" to use a specific sort of remote control?" The answers to his ponderances lie in the text of the above linked article, and just to jazz things up a bit, I'm not going to hint at those deliciously-tantalizing bits of knowledge but rather hope that you, the constant reader, will be unable to resist finding out for yourself. DMCA in a garage door opener? Really!? CQ Politics : Senate Foreign Relations Chairman John Kerry occasionally pops up in the most unusual of circumstances and this time it's his vehement exhortations that American IP needs protection during the increasingly difficult to manage Copenhagen climate change talks that brigns him to center stage. Joseph J. Schatz reports on the Massachusetts Democrat's bid to please both US patent holders while at the same time, allay fears in the third world of untenable technological demands to reduce their production of global warming gases. He writes: Many developing countries, including China, have argued that if they agree to cap carbon emissions, they should get access to the kind of technology that rich countries have had a head start in developing. Some developing countries want the ability to issue “compulsory licenses,” which would allow them to use blueprints designed in the United States to build their own emissions technology — essentially free of cost. That could cost American businesses billions of dollars in lost revenue and potentially remove their incentive to invest in the new technology. And it would affect the very companies that have been most supportive of congressional Democrats’ effort to write a climate change law: technology companies, like General Electric Co., that stand to make billions from rising demand for technology to limit carbon emissions. Of course, big businesses like GE don't really want to "share" their US taxpayer-funded technologies for free with the great unwashed nations of the world, and why would they? It's all about money, you see, and not about effecting change, regardless of how many kids you get to sing songs about clean process coal plants in front of a field of grass full of flitting butterflies. If you'd like more information about Kerry's complicated attempt to please everyone while probably pleasing no one at all, read Schatz' Technology Transfer Pervades the Business End of Climate Talks . Afterdawn.com : According to Andre "DVDBack23" Yoskowitz, "The MPAA has announced that the United States Congress has allocated $30 million in funding for anti-piracy measures, part of the Prioritizing Resources and Organization for Intellectual Property Act." Yoskiwitz then quotes the big MPAAer himself, who is certainly happy with this taxpayer windfall to help them sue students and grandmas for watching unauthorized copies of movies. "Congress took a major step forward by providing $30 million in funding for new FBI agents, federal prosecutors, and local and state law enforcement grants to protect American jobs and creativity by cracking down on the theft of movies and other intellectual property," added MPAA chairman and CEO Dan Glickman." There's more where that came from in the remaining paragraphs of Congress allocates $30 million for anti-piracy . CNET News : And in another coup for the MPAA, the FBI has arrested the person behind the unauthorized, pre-release release of the movie "Wolverine." Here are some of the initial details of this sleuthy case: The FBI has accused a man of copyright infringement for allegedly uploading to the Web the feature film "X-Men Origins: Wolverine" last spring. Gilberto Sanchez, 47, was arrested in the Bronx, N.Y., early Wednesday morning by FBI agents without incident, law enforcement sources told CNET. A spokeswoman from the FBI's Los Angeles field office, which led the investigation, confirmed the arrest. If convicted, Sanchez faces up to three years in prison and a $250,000 fine, or twice the gross gain or gross loss attributable to the offense, whichever is greater. But what's not so clear is if Sanchez is the man behind the upload. "The indictment does not say, however, how Sanchez allegedly obtained a working copy of the film and FBI spokeswoman Laura Eimiller declined to provide those details. She did say that the agency has not ruled out more arrests. What this means is that Sanchez may not have been the source of the leak." A-ha! Even though the studio that produced the movie, 20th Century Fox, includes watermarks in its films, they aren't sure he's the culprit. Maybe the FBI can help them out? FBI makes arrest in 'Wolverine' uploading case by Greg Sandoval for the rest of this tale of government-assisted efforts to bring in the bad guys. Wired.com : In a move that's sure to raise the ire of copyright proponents all over the globe, the Obama administration is backing efforts to make it easier to allow blind people to access copyrighted information by ignoring IP protections. David Kravets has more: "The Obama administration announced Tuesday it supports loosening international copyright protections to enable cross-border distribution of special-format reading materials for the blind, a move that puts it at odds with nearly all of U.S. industry." And no surprise that big industry media players have already tried to put the kibosh on allowing their copyrighted materials to be effectively given to the blind for free. "The move comes as a broad spectrum of American enterprise, ranging from major software makers and book publishers to motion picture and music companies, have opposed the proposed international treaty that would make books more accessible to the blind. The chief complaint is that the treaty creates a bad precedent by loosening copyright restrictions, instead of tightening them as have every other international copyright treaty." Find out how the Obama Administration is trying to please all parties involved by reading Kravets' entire article, Obama Sides With Blind in Copyright-Treaty Debate . Bonus IP piece o' the day: Salamon Group Inc. Strengthens Intellectual Property and Patent Portfolio at CNN Money.com . | |||
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| US Convinces EU Signatories To Agree To WIPO Internet Treaty Terms | |||
| Written by Anthony Dale Kuhn | |||
| AGIP News : The US has scored a win with the recent signing of an international treaty that should protect American IP interests in the European Union. From Secretary Locke Commends EU Ratification of Internet IP Treaties : Commerce Secretary Gary Locke commended the European Union and 16 of its members for ratifying the World Intellectual Property Organization (WIPO) Copyright Treaty and WIPO Performances and Phonograms Treaty (collectively, the “WIPO Internet Treaties”). Accordingly, a press release by the US Patent and Trademark Office (USPTO) stated, the European Union and all twenty-seven European Union member states have ratified the WIPO Internet Treaties. These treaties provide US rightsholders doing business in the European Union increased protection, and thereby enable US businesses to grow, secure investment and create jobs. What's not mentioned is what concessions the US made, if any, to create the necessary conditions for a united EU vote, but one imagines they must have gotten something out of the deal. To learn more exact details of the terms of this treaty, be sure to read the rest of the story at the above linked article. Harvard Business Review : Internet sensation and social media guru Seth Godin recently convinced a group of busy thinkers to contribute to an "open source" book (more accurately a *.pdf file) without the promise of financial compensation. From a commentary on Godin's latest publishing project, Chris Meyer & Julia Kirby explain: When Seth Godin invited us to participate in his latest publishing project, a cobbling together of passionate missives into a single .pdf file, we took interest on two levels. First, of course, we were happy to contribute. The assignment, as given to 70 different business thinkers (including our fellow HBR bloggers Michael Schrage and Bill Taylor), was to write a short essay reflecting a strongly-held belief, and title it with the one word that summed it up. For us that word came easily: it's re-capitalism. We argue on our page of the collection, as we will in our forthcoming book, that capitalism can and will change fundamentally as the emerging economies increasingly become the engines of wealth creation. "What kind of compensation or monetary gain comes out of such an effort?" you might be asking yourself. The "book" includes advertisements that pay money to one of Godin's preferred charities and the contributing authors get the notoriety and "gratification of supporting a worthy cause" while skimming along in the stratosphere of the chosen few. Seth Godin's Free Book and the Future of Intellectual Property will round out the above synopsis with more information on how this project differs from Godin's last book publication project. Wired.com : Charlie Sorrel reports on the dismay Google's new "Nexus" phone has caused to the daughter of the author who used that same term in the narrative of his book, Do Androids Dream of Electric Sheep. He writes, "Isa Dick Hackett, daughter of the paranoid science fiction genius Philip K Dick, isn’t happy about the new Googlephone. The still unofficial handset may or may not be called the Nexus One, but Isa is already 'shocked and dismayed' about intellectual property infringement, according to the New York Times: Roy Baty and his replicant cohorts in Dock’s novella Do Androids Dream of Electric Sheep were all Nexus-6 models." Sorrel then goes on to comment on the situation and sums up his feelings in one, short quip. "This is utter nonsense, of course" as nexus is a word in common usage and in his views doesn't warrant special protection or entitle Dick's daughter any kind of compensation for its use as the name of a cell phone. Whether or not Isa Dick Hackett decides to call in the big legal guns to fight the good fight will be seen but for sure the argument appears a bit weak on the surface. Nexus: Did Google Dream of Electric Lawsuits? for the win. PC World : They Own WHAT? Nine Tech Patent and Trademark Oddities by Harry McCracken, Technologizer, covers a virtual rogues gallery of patent and trademark disputes featuring popular brands and products most tech-savvy consumers will recognize immediately. The stories behind some of the struggles faced by the likes of Apple Computer and Amazon.com are fantastic examples of how patents and trademarks can be both stumbling blocks for those hoping to create a new product or service or a source of revenue for the proud, and often lucky, holders of the rights in question. Here's just one example among those featured: Early Apple employee Jef Raskin had a favorite apple. It was the McIntosh--but since that was also the name of a manufacturer of high-end audio equipment, he bestowed the new computer he was spearheading with an intentionally misspelled code name: Macintosh. He figured that would sidestep any trademark problems. He figured wrong: The McIntosh loudspeaker folks weren't thrilled with the prospect of a similar-sounding computer, despite a letter Steve Jobs wrote them: "We have become very attached to the name Macintosh. Much like one's own child, our product has developed a very definite personality." According to Apple historian Owen Linzmayer, the computer company and the audio company struck a licensing deal in March 1983; early Mac ads include a credit for McIntosh Labs. In 1986, Apple paid McIntosh a fee--how much remains a secret to this day--for permanent rights to the name "Macintosh." Twenty-three years later, the computers and the fancy audio gear continue to coexist. ArsTechnica.com : Vice President Biden presided over a carefully chosen assembly of Big Content fat cats, government officials from a variety of Alphabet Agencies, and industry leaders this week much to the delight of the likes of RIAA and MPAA. Nate Anderson offers more details of this cozy cabal and asks some pertinent questions of the meeting's makeup in Biden's "IP roundtable" brings together Big Content, FBI : This week, Biden was at it again, hosting a roundtable on enforcing copyright infringement cases. Who was invited? Top names from the government, including Attorney General Eric Holder, Homeland Security Secretary Janet Napolitano, Biden, and Espinel, along with the heads of NBC, Sony Pictures, Warner Music Group, and HarperCollins. Oh, did I mention that the guest list also included the heads of the MPAA and RIAA, top execs from News Corp., Universal Music, Walt Disney, and Viacom? Or that top Obama advisor and confidante Valeria Jarrett was in attendance? Or that the head of the FBI and Secret Service were there? Or that the event billed itself "the first of its kind, and will bring together all of the stakeholders to discuss ways to combat piracy in this rapidly changing technological age," but didn't manage to invite any public interest groups or academics? Ah ha! Another gathering without a dissenting voice like the secret international meetings on the US-led copyright enforcement laws of ACTA. Public Knowledge, "a Washington DC based public interest group working to defend your rights in the emerging digital culture", had this to say about this member's only confab, "'We were extremely disappointed to learn of the White House meeting to be held later today on the issue of intellectual property and 'piracy,' said PK's Gigi Sohn. 'It is unclear why three cabinet officers, several subcabinet officers, the directors of the Federal Bureau of Investigation and the U.S. Secret Service are needed to tend to the worries of the big media companies, particularly the motion picture industry which is completing a year in which it will set box-office records.'" Any one have other thoughts or comments to offer? Bueller...? Bueller...? Bonus IP piece o' the day: FTC sues Intel, aims to shape the GPU market by Larry Dignan at ZDNet.com . | |||
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| Sun Microsystems Kills Two IP Infringers In One Fell Swoop | |||
| Written by Anthony Dale Kuhn | |||
| RTTNews : Sun Microsystems has scored a double hit with a pair of lawsuit judgments that should dissuade future counterfeiters from stealing its protected products. An anonymous RTT Staff Writer reports: Tuesday, Sun Microsystems, Inc. (JAVA: News ) announced that it has won judgments against a U.S. counterfeiter of Sun's products and a U.K. violator of its trademarks. Sun said that in the U.S. case, it obtained a federal court judgment against Joe Faris, the primary owner of Sun Valley Technical Repair, which was a major counterfeiter of Sun products. The judgment resolves Sun's long-standing litigation against Faris and Sun Valley Technical Repair, and requires Faris to cooperate with Sun as well as make a substantial monetary payment. After this successful legal defense of its intellectual property, a Sun spokesman took a moment to clarify the company's position on fighting theft of its IP. "The company said that these judgments reflect its strong efforts to protect its intellectual property rights. 'Sun is committed to aggressively pursuing those who violate Sun's intellectual property rights and threaten its market integrity,' said Bill Mooz, legal director, Sun Microsystems." Let that be a warning to all you would-be Sun thieves. Read all about this breaking news in Sun Wins Judgments Against Intellectual Property Violators - Update . AFP via GoogleNews : Another company that takes protection of its intellectual property "very seriously," Microsoft, is suspending a new microblogging service in China amid rumors that the code for the software was stolen. "The Redmond, Washington-based software giant said it was suspending MSN Juku, which was developed for MSN China by a third-party independent vendor, while it investigated the charges. The move followed allegations by Plurk that much of the basecode used in MSN Juku was plagiarized from Plurk, which claims to be the biggest microblogging service in Taiwan, ten times bigger than Twitter." A good response from Microsoft in the light of the outing of Juku as blatantly stolen from Plurk , "a social journal for your life." Examiner.com : Mega-corporation Monsanto is the subject of a new investigation by news agency AP for its use of patents to cripple small farms and eliminate competition. Robert Taylor reports on this brave move to highlight Monsanto's unfair practices in his recent piece, Corporate food giant Monsanto uses patents to bully small farmers and strangle competition . He writes: Monsanto has had a long history of bullying their way around the country and the AP should be commended for adding to their laundry list of sins. But despite the article's claims, Monsanto's excesses are the products of state intervention, not capitalism. Monsanto owns patents on the genes of nearly 90% of America's soy and corn products, and when these seeds eventually blow onto neighboring smaller farmers, Monsanto sues them for a violation of their intellectual property "rights." They have even sued farmers for saving Monsanto's patented soybean seeds. Monsanto uses its government-granted monopoly to intimidate and violate the true property rights of its neighbors, which exposes intellectual property (IP) for the misguided policy that it is. Taylor goes on to describe Monsanto as "a statist creature that benefits from patents, licensing, and farm subsidies to strangle its less politically-favored competitors." Not one to mince words, Taylor. Your-Story.org : A "leading patent licensing and enforcement firm" has successfully settled with a company accused of infringing on their client's intellectual property. From General Patent Corporation Settles Patent Infringement Lawsuit with Audiovox : "General Patent Corporation (GPC), a leading patent licensing and enforcement firm, announced today on behalf of its client, Advanced Video Technologies LLC (AVT), that it settled a patent infringement lawsuit between AVT and Audiovox Electronics Corporation (Audiovox) of Hauppauge, N.Y." Audiovox is not the only company to decide to license IP from AVT instead of fighting in court. "Audiovox is the second company to license the AVT patent as the result of a settlement of a patent infringement lawsuit. A third company, Electro Flip LLC of Henderson, Nev. – a company that was not the subject of litigation – licensed the ‘788 patent voluntarily." The good people from AVT say they are willing to license their technology "on non-discriminatory terms to other manufacturers." MacNN : In other patent lawsuit news, East Texas is once again the venue for a company claiming that 18 major technology firms have violated their intellectual property rights. "A company called BetaNet has filed a new lawsuit against 18 corporations -- including Apple, Adobe, Intuit and Microsoft -- accusing them of violating two patents held in relation to remote software registration. The technology in question allows a user to enter registration information into local software, and then unlock the full version of a program by communicating with a remote server." An as far as the choice of venue, "The court is notoriously favorable towards plaintiffs in patent infringement disputes. Apple is already engaged in a number of legal battles, most prominently with Nokia, which it has countersued claiming that some products copy ideas from the iPhone." Read all about it in New patent lawsuit attacks Apple over remote registrations . Bonus IP piece o' the day: Unitaid approves patent pool to reduce cost of HIV drugs by Sarah Boseley at Guardian.co.uk . | |||
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| Details Emerge: "World's First Financial Exchange" With IP Focus | |||
| Written by Anthony Dale Kuhn | |||
| Sys.con Media : A global financial exchange focused on intellectual property has gained a new and experienced executive who has previously proven his mettle. From BusinessWire.com's World’s First Financial Exchange Focused on Intellectual Property Taps Former President & COO of Chicago Climate Exchange to Take the Helm we get more complete details of this welcome addition to The Intellectual Property Exchange International team: The Intellectual Property Exchange International ( www.IPXI.com ), the World’s First Financial Exchange based on Intellectual Property, announced today that Gerard J. Pannekoek has joined the company as President and Chief Executive Officer of IPXI Holdings, LLC, parent to IPXI. In his previous position as President and COO of the Chicago Climate Exchange (CCX), Mr. Pannekoek was tasked to bring to market the world’s first multi-national and multi-sector exchange for reducing and trading greenhouse gas emissions. In less than twelve months, he established the firm’s infrastructure and trading operations ultimately leading to a successful initial public offering. The Intellectual Property Exchange International provides an innovative approach to the commercialization of intellectual property rights or “IP”. IPXI will leverage models used by other markets but instead of trading traditional commodities or equities, members, individual inventors, universities and corporations will trade contract rights in patents, trademarks and copyrights. There is plenty of addition praise for Mr. Pannekoek's abilities to steer the corporate ship in favorable directions in the article. The new CEO of IPXI also has a peppy bit of cheerleading to add to the mix: "'I am truly excited about joining the team to accelerate the sales effort,' explains Pannekoek." More sales of valuable IP stocks and futures equates to more dollars in Mr. Pannekoek's pockets, so it's nice to see he's on board the company plan to maximize profits. Global Times : According to a recent piece by Shi Jierui, Saab has successfully completed the sale of a portion of its intellectual property to Chinese automaker BAIC. From Jierui's BAIC buys some Saab intellectual property rights : "BAIC announced Monday that it has reached a deal with Saab to buy the Swedish automaker's intellectual property rights for some Saab 9-3 models, the current 9-5 models, and powertrain technology and tooling. Saab said that tooling for its current 9-5 model will move to China where it will be used to make BAIC vehicles, and Saab will assist BAIC in integrating the technology into their vehicles." This is the second automobile marque that has sold its IP to a Chinese company despite real concerns that such sales will end up compromising the brand's integrity with fraudulent application of related technologies and methods. TechDirt.com : How could CNN confuse the number of patents filed with the amount of innovation occuring in the US? Seems they're just following the lead of other media outlets who tout the same "factoids" as factual when in reality, the information is faulty from the get-go. Mike Masnick reports: "We've seen it over and over again in the press. They love to assume that the number of patents being filed is a proxy for innovation. There's just one (large) problem with that. Multiple studies have shown no connection between patents and innovation. But, don't tell that to the reporters at CNN who are fretting about how the 'recession' has taken its latest victim: US Innovation. This is ridiculous on so many levels that even patent system defenders are disagreeing with CNN. First, CNN bases this on a minuscule 2.3% decline in patent filings, despite a massive growth in patent filings over the past fifteen years." And the good people at the USPTO aren't doing much to dispel these errors, as Masnick correctly points out: "Tragically, USPTO boss David Kappos -- who should know better -- perpetuates the myth that the two are directly connected. In commenting on the decline in patent applications, he notes: 'That's unfortunate because [patent filings] are a reflection of innovation,' said David Kappos, director of the Patent Office. 'Innovation creates so many jobs and so much opportunity for our country. It is absolutely key to our long-term success in the global economy.' " Interesting stuff going on here with the interweb tubes getting all crossed up and routing disinformation into the media's gaping news hole. Read Masnick's Dear CNN: Patents Are Not A Proxy For Innovation for the rest of the story. Intellectual Property Watch : Intellectual property takes center stage at the climate change meetings in Copenhagen. From Tove Iren S. Gerhardsen's Tough Talks On IP In Technology Paper At Copenhagen; No Mention In Latest Draft : One developing country official told Intellectual Property Watch that it was “absurd” that developing countries today have to pay royalties whenever they produce technology such as solar panels, which would be an obvious green technology for many developing countries to produce and use. “How can the developing countries move if everything has to be paid,” the official asked. Many countries have the technical capacity to produce technologies, but could not afford to pay the royalties to developed countries, he said. Even when developing countries come up with new technology, they have to pay royalties on many parts, the official added. China and the United States have also run into a stumbling block that might become an impasse: The IP disagreement reflects the general divide in the overall negotiations, illustrated by two 11 December press conferences held by China and the United States respectively. China stressed the responsibility of developed countries for a deal to be struck, while the US said there would not be a deal unless developing countries stepped up commitments. China said that technology transfer is an obligation by developed countries, and they “should not use IP as an excuse for not delivering on their promise.” Interesting how countries without much to offer in the way of compensation for these "gifts" of hard-won intellectual property seek use of technologies without having to pony up. Here's an idea: why not make an agreement that works on a sliding "income" scale allowing countries with smaller GDPs to pay less than their monied benefactors? That way the owner of the IP will still be receiving something for their efforts and the poorer countries will still have a chance to cut their greenhouse emissions without having to re-invent the wheel. Just saying, that's all. KPBJ.com : A Beantown-based software company is suing Microsoft with claims of infringement on a patent for extracting spreadsheet data. "NetView’s lawsuit alleges Microsoft infringed a 2007 patent titled 'System and Method for Efficiently and Flexibly Utilizing Spreadsheet Information,' which was originally applied for in 2003. NetView is seeking a temporary court injunction, preventing Microsoft from making or selling its Excel Services product, and asks for treble damages, alleging that the software giant has known about the infringement since August 2007." For more details, read the complete text of Microsoft sued in patent spat . Bonus IP piece 'o the day: Nigeria: Udenwa Harps On Intellectual Property Rights by Clement Nwoji at allafrica.com . | |||
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| China Bolsters Internal Enforcement Of Local IP Procurement By State Agencies | |||
| Written by Anthony Dale Kuhn | |||
| Wall Street Journal : According to a recent piece by Loretta Chao, China has made it more difficult for state agencies to bring in products from foreign nations with legislation that requires the use of products containing "domestic intellectual property". We learn more details about this protectionist measure in Chao's China Firms Defend Tech-Purchase Rules : China's updated procurement rules, issued on an official Web site in October and reported by The Wall Street Journal on Thursday, establish an accreditation system that gives Chinese intellectual property preferential treatment in sales of tech products to government buyers. More than 30 industry groups, representing most of the world's major tech companies, wrote a letter Thursday to the Chinese government, calling the system onerous and discriminatory. The US Chamber of Commerce has already started the arbitration process and has made it known that such stringent measures by China to force the incorporation of indigenous IP "could effectively bar foreign companies from a large sector in China, runs counter to international trade principles and would hinder Chinese innovation." But there are those in China who would argue the program to protect Chinese intelletual property don't go far enough. Chao writes, "Some Chinese tech executives say their government isn't doing enough to protect them. 'I hope China will do more ... to make the competition more fair,' says Fan Hongguang, product manager for Red Flag Software Co., a Beijing company that produces a Linux-based operating system that competes with Microsoft Corp.'s Windows software." Some Chinese tech executives say their government isn't doing enough to protect them. "I hope China will do more ... to make the competition more fair," says Fan Hongguang, product manager for Red Flag Software Co., a Beijing company that produces a Linux-based operating system that competes with Microsoft Corp.'s Windows software." Can't please all the people all the time, I guess. SteveBlank.com : How should a startup best create a strong defence against intellectual property theft? It all begins with a little bit of knowledge about the different ways to protect IP and how to use them to create legal documentation to fight the good fight. In his topical piece, Someone Stole My Startup Idea – Part 3: The Best Defense is a Good IP Strategy , Blanks writes on a guest lecturer's presentation to his students at Stanford: The assets you can protect may include your 'core technology' like source code, hardware designs, architectures, processes, formulas. Or it can be your brand, logo or domain name. You can protect business processes, know how, customer information, product road map. Protection is also available for content such as music, books, or film. Blank closes the piece with the following take-away advice: Protecting your startups intellectual property should be a strategy not an after the fact tactic. You need a plan for trademarks, copyright, trade secrets, contracts/NDA’s and patents before you get funded. Your intellectual property may be an additional revenue stream or may add substantial value to your company. The rest of the piece covers the more technical aspects of IP protection that might help a startup get off on the right foot. Many venture capitalists value a company's efforts to patent, or otherwise register, their ideas against theft or fraud when deciding whether or not to fund a given startup so it's worth a look at Blank's piece at the above link. The Huffington Post : So how exactly does intellectual property and its control figure in President Obama's recent Nobel Prize acceptance speech, you ask? A fine question, and one that Ian McDougall intends to answer in his topical and related article, Nobel Prize Broadcast Rights: Intellect Meets Intellectual Property . In it, MacDougall writes on a change in the rules governing the speech's dissemination: When President Barack Obama accepted his Nobel Peace Prize on Thursday, a single Swedish company controlled the dissemination of his words. Obama's speech was recorded exclusively by Norwegian national television and distributed by Nobel Media AB, a company formed by the Sweden-based Nobel Foundation in 2004 to strengthen control over its intellectual property. In previous years, independent media could record the first five minutes of the ceremony. Nobel Media did not allow that this year because, the company said, it would conflict with Obama's security requirements. Be sure to find out how an interaction between Nobel Media and some members of the Chinese press brought about this unwelcome change in the control of the Nobel Prize speech by reading the rest of MacDougall's coverage. ArsTechnica.com : Jacqui Cheng has a bit of news regarding a lawsuit between Apple and Nokia that has spawned a countersuit in response. Chang reports, "Apple has filed a countersuit against mobile phone giant Nokia, asserting that it has not infringed on Nokia's patents and that Nokia has, in fact, copied Apple. The 79-page court filing was made in response to a lawsuit that Nokia filed against Apple in October, wherein Nokia said that Apple's iPhone made heavy use of the company's GSM/UMTS patents and that Apple should cough up the royalties." How's that for fair turnaround? Nokia isn't afraid to come out with patent guns a blazin' as evident in this paragraph of Cheng's Apple calls Nokia a copycat in patent countersuit . "Nokia has an extensive patent portfolio, claiming it has 'over 10,000 patent families' and has been embroiled in other, related IP litigation with other industry players over the past several years. In October when the suit was filed, Nokia's Vice President of legal and intellectual property Ilkka Rahnasto claimed that Apple downright refused to agree to Nokia's licensing terms and that the company was "attempting to get a free ride on the back of Nokia's innovation." And Apple's rebuttal goes a little something like this: " Apple also says that Nokia demanded terms for its license agreement that weren't reasonable, leading Apple to supposedly develop its own technologies." "I say, you say" doesn't hold up in a court of law, boys. Better to come to a mutual cross-licensing agreement than to lose millions fighting it out in court. Trust me. Examiner.com : Things are getting a bit hot and sticky in a lawsuit between members of a family whose focus is peddling skin flicks. At the helm of this naughty empire is none other than infamous free speech proponent, Larry Flynt of Penthouse magazine fame. Bruce Maiman dishes the dirt: "Uncle Larry groomed a pair of nephews to take over his business come the day the Viagra ain't doin' it for him. The nephews must not have liked Uncle Lar' because they went up and started their own porno company while using the good family name --Flynt Media Corp (in case you wanna call your broker). Uncle Larry sued for trademark infringement. Apparently he remembered to trademark his Hustler brand but never thought to do the same for his name. Flynt claims the two nephews are tarnishing his image and producing a series of videos he says are nothing but cheap knockoffs, 'which in turn hurts my revenue.'" The nephews claim that their pornos are superior in a number of ways including being "done more tastefully" and featuring boxes that are "less cluttered and more modern than" Uncle Larry's stuff. Check out Maiman's Larry Flynt sues family members for trademark infringement for more dirt. Bonus IP piece o' the day: NGOs slam move to keep India out of patent pool at Business Standard.com . | |||
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| Favorable Patent-derived Income Tax Policy Fosters Investment In Great Britain | |||
| Written by Anthony Dale Kuhn | |||
| The New York Times : A recent fortuitous decision in Britain to "to slash corporation tax for patent-derived income" has at least one major player in the world of Big Pharma ready to invest hundreds of millions. Reuters' David Holmes reports on GlaxoSmithsKline's good luck: Europe's biggest drugmaker said on Thursday it expected to spend some 500 million pounds building a new factory to make biotech drugs and on expanding an existing plant to make next-generation respiratory medicines, leading to new jobs. One expert weighs in with his views on the reality of the situation: Sam Fazeli, a biotech analyst with Piper Jaffray, noted the scheme only applied to patents granted after new legislation was passed -- expected in 2011 -- which also meant the full effects would not be seen for some time. Since it can take 10 years or more for a new drug to make it to market, companies will have a long wait before enjoying the lower tax rate. The eventual outcome and affects the move to lower taxes on patent-derived income will have might not be known at present, but that's not stopping forward-looking businesses from putting their money where it might someday grow into a significant return on investment. Read Holmes' Patent Tax Scheme Encourages Glaxo to Invest In UK for more details on this unexpected potential windfall. MedcityNews.com : A large player in the medical device industry is facing a patent-infringement lawsuit by a smaller company based in New York. According to a recent piece by Brandon Glenn, Medtronic isn't a stranger to such claims. He writes, "Rochester, N.Y.-based telemedicine firm Medgraph claims Medtronic’s CareLink system incorporates its technology, according to news reports. CareLink allows doctors to monitor patients’ conditions and vital signs via the Internet. Medgraph is seeking an order requiring Medtronic to stop its alleged patent infringement and unspecified damages, the Minneapolis Star-Tribune reported." Medtronic isn't afraid of a fight when it comes to their valuable products and their patents. "Medtronic hasn’t been served with Medgraph’s complaint, but if it is, the company 'will defend itself vigorously,' a spokesman said via e-mail." Maybe Medtronic is hoping to "starve out" Medgraph financially with its plan to vigorously defend themselves. Time will tell, as it always does. Read Glenn's Medtronic sued for patent infringement on glucose-monitoring system for more on this developing story. The Southeast Texas Record : To add insult to injury, Apple computer was recently cited to pay $2.7 million interest on an award of $21 million after losing judgment in a lawsuit brought by OPTi Inc., a patent holding company. Marilyn Tennissen has more on this double-whammy in her December 10th piece, Apple appeals $21 M patent infringement judgment : Apple filed a number of motions requesting either a judgement as a matter of law or a new trial regarding the patent's validity, Apple's willfulness of infringement, and the amount of the jury award. U.S. Magistrate Judge Charles Everingham granted Apple's motion for judgment as a matter of law that it did not willfully infringe the '291 Patent. However, Apple's motions regarding validity and jury award amount were denied. Since Everingham determined as a matter of law that Apple did not willfully infringe the patent, he denied OPTi's motion for enhanced damages. But the judge upheld the jury's guilty verdict and $19 million award and entered final judgment against Apple, along with an additional $2.7 million in interest. Whether or not Apple's appeal will fall on deaf ears is of great interest to OPTi Inc., as "the company's ability to realize licensing revenue from its Predictive Snoop patents will be significantly affected if the final outcome of the litigation is not successful[.]" Santa Cruz Sentinel : In other patent news, a pair of technology companies have put aside one of their differences but will soon pour salt in old wounds with 2 additional lawsuits in the works. "GraphOn Corp., a small Santa Cruz-based software developer, announced this week it successfully defended against a patent infringement suit filed by competitor Juniper Networks and will seek compensation for fees and expenses related to the case." GraphOn Corp. is hoping to convince the judge to "to declare the Juniper lawsuit an exceptional case, which would allow the award of attorney's fees and expenses" and that should help them get mustered for the next portion of their patent defense program. "Still in litigation, however, are two separate patent infringement lawsuits against Juniper, which allege that some Juniper firewall and router products infringe on GraphOn patents. One of the cases, filed in 2007, is set for trial in a U.S. District Court in Texas in July. The second case, filed in May 2009, does not yet have a trial date." What would patent law be without the East Texas District Court? Read GraphOn wins patent suit and get the scoop. The 271 Patent Blog : Pendency aside, increasing patent quality has been one of the main issues facing David Kappos as the head of the US Patent and Trademark Office. Peter Zura offers a peek at raising the bar to new, and much-needed, heights. He quotes from a recent USPTO news release: As part of this effort to improve the quality of the overall patent examination and prosecution process, to reduce patent application pendency, and to ensure that granted patents are valid and provide clear notice, the USPTO would like to focus, inter alia, on improving the process for obtaining the best prior art, preparation of the initial application, and examination and prosecution of the application. The USPTO is seeking public comment directed to this focus with respect to methods that may be employed by applicants and the USPTO to enhance the quality of issued patents, to identify appropriate indicia of quality, and to establish metrics for the measurement of the indicia. This notice is not directed to patent law statutory change or substantive new rules. It is directed to the shared responsibility of the USPTO and the public for improving quality and reducing pendency within the existing statutory and regulatory framework. As to exactly what defines a "quality" patent, you'll have to click through to Zura's USPTO Launches Patent Quality Improvement Initiative and find out for yourself. Bonus IP piece o' the day: Express Lane for Green Patents Can Help Startups by Josie Garthwaite for Gigaom.com at Businessweek.com . | |||
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| Canadians Vexed By US Pressure To "Buy American" | |||
| Written by Anthony Dale Kuhn | |||
| TechDirt.com : Should Canadians stop "Buy American" pressure by promising to implement US-style copyright laws? That's a good question and one that Mike Masnick hopes to address in his topical piece, US Lobbyist: If Canada Just Implemented US-Style Copyright Law, US Would Drop 'Buy American' Provisions . He writes: ...Canada is (reasonably) upset by various "buy American" provisions that are being pushed by various local governments despite the fact that anyone with any economic knowledge at all recognizes that "Buy American" provisions do more harm to American interests. This is an important issue, and there are lots of ways to address it. But it's flat-out ridiculous to believe that the "answer" to the Buy American issue is for Canadians to capitulate to American interests in implementing much more draconian copyright law. And yet, that's exactly what an American lobbyist just told a Canadian Parliamentary gathering recently. The American lobbyist in question, Scotty Greenwood, has "a history of serious conflicts of interest in her dual role as a lobbyist and as an executive director of the Canadian-American Business Council" according to Masnick. Will the Canadians fight against American copyright imperialism or will they capitulate with hopes of placating their conflicted neighbors to the south? Stay tuned, gentle reader. MassHighTech.com : Reza Mollaaghababa and Michael Doyle of Nutter McClennen & Fish LLP offer their thoughts on the Patent Reform Act of 2009 in their recent joint piece. Here's a paragraph that contains the meat of their take on how the act falls short of its intended target: The implementation of the Reform Act promises to result in stronger patents, it also is likely to considerably increase the workload on the Patent Office whose resources are already over-stretched. The Act does not adequately address this issue. Consideration should be given to the introduction of a provision similar to that employed in some countries by which applicants have the option of requesting examination within a period after filing (e.g., three years), rather than requiring that each application be examined. Such a provision could dramatically decrease the Patent Office’s workload while realizing the benefits of a stronger patent system contained in the Patent Reform Act. Not only do the authors present some criticisms of the act's proposed changes to patent law, they graciously come up with a way to strengthen the provisions of the legislation to bring them into line with other, forward-looking country's ideas on the matter. For the rest of the story, be sure to check out Mollaaghababa and Doyle's Patent reform benefits high-tech companies . JongAng Daily : Here's an interesting take on the importance of intellectual property and its protection from an unlikely corner: South Korea. "Intellectual property and patents have become the core of the global economy and of national strength. Korea once became a colony because it turned away from industrialization. If it ignores the knowledge revolution, it may become a colony once again, this time of intellectual property." This from the president of the Korea Patent Attorneys Association and he is certain to try to avoid the ignominy of being the man who didn't shake Korea out of its IP slumber and onto the global stage to compete with its ancient and current economic enemy, Japan. The president of the KPAA sets the stage for the battle with these strong and soul-stirring words: Korea is unenthusiastic about this global change - but the longer it goes, the higher the possibility that it will become a new kind of colony, yoked to countries with more advanced technology. The trade deficit with Japan grows year by year, proving the point. In fact, the financial industry in the United States ignored the intellectual property revolution, too, and the consequence was the global financial meltdown. It is not too late for Korea to rebuild a country based on the intellectual property revolution, just as Zhuge Liang used the southeastern wind to win a victory in the Battle of Red Cliffs. How can we do that? To find out the answer offered by our honorable speaker, be sure to check out the rest of the story in [Viewpoint] Korea must not be left behind again . PopularMechanics.com : The Patent Reform Act of 2009 is gaining attention from new and unexpected sources including the good folks at PM. Erik Sofge's recent article on the subject, entitled Inventors Slam Patent Reform Effort , sets the tone for the body of the piece. Sofge reports on what a select number of innovators and industry experts think of the act's new "first-to-file" (FTF) provision: In the broadest, most long-term sense, FTF's tough-love approach could help smaller inventors. But it could also marginalize them even further. "Large companies can afford to file patents on every idea they have," says Lonnie Johnson, president and founder of Johnson Research and Development, inventor of the Super Soaker, and Popular Mechanics Breakthrough Award winner for his Johnson Thermoelectric Energy Conversion System. "Small companies, we have to weigh our options, do the research. We have to decide where to place our bets. We can't just cover everything we do." Johnson, a former nuclear engineer at NASA's Jet Propulsion Lab who holds more than 100 patents, isn't worried about the time it takes to fill out applications or about presenting copious lab notes. It's the cost—when you include legal fees, each patent costs as much as $15,000. "I'm looking at my books, and I have about 26 ideas I should be patenting," Johnson says. "There's no way I can afford to file on everything we come up with." So in the eyes of many smaller businesses, it all comes down to money. Big companies can afford to use the shotgun approach when filing patent protection applications and are more easily able to continue on with other projects if one of their many ideas fail to pass muster with the USPTO. Writing in a clause to help small businesses compete more easily in the patent world would be tricky and since every large business started out struggling to cut its teeth on the dry pablum of patent law, there's certainly a strong arguement to make all comers fight on the same playing field and let the winners rise to the top. Bloomberg.com : Bristol-Myers, the maker of Plavix, a blood-thinner whose chemical name is clopidogrel bisulfate, has won a case "in which creditors claimed the drugmaker hid information about its effort to settle a patent suit with Apotex Inc." David Glovin reports: The case against New York-based Bristol-Myers, filed in 2007, settled in principle in May. U.S. District Judge Paul Crotty in Manhattan yesterday granted final approval of the accord. He previously gave preliminary approval. According to the complaint, Bristol-Myers entered into a settlement in 2006 that allowed Apotex, based in Weston, Ontario, to make a generic version of Plavix. The investors claimed Bristol-Myers didn’t disclose that as part of the settlement, it agreed to relinquish certain legal rights and entered a secret oral side agreement with Apotex. “The court hereby finds and concludes that the plan of allocation proposed by lead plaintiff is, in all respects, fair and equitable to the class,” Crotty wrote. Lawyers from Bernstein Litowitz Berger & Grossman LLP were awarded fees of $21.25 million, or 17 percent of the settlement fund. The market will most likely increase the price of Bristol-Myers stock with its favorable award but not all involved are likely to be happy with this outcome including "the Ontario Teachers’ Pension Plan Board, the lead plaintiff for the investors in the class-action lawsuit." Glovin provides more information on this court case in Bristol-Myers $125 Million Plavix Accord Is Approved (Update1) . | |||
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| Economists Claim "empirical evidence shows that IP does not promote innovation" | |||
| Written by Anthony Dale Kuhn | |||
| The Christian Science Monitor : In a recent opinion piece authors David K. Levine and Michele Boldrin proclaim that "empirical evidence shows that IP does not promote innovation and that, unlike ordinary property, it is detrimental to the social good." This despite the overwhelmingly supportive coverage that protecting intellectual property seems to attract. Dismissing the claim that IP rights are guaranteed under the Constitution as a "popular myth," Levine and Boldrin mince no words when it comes to their feelings about the benefits of eliminating government monopolies for ideas and products. The duo have a solution to the current economic downturn: "[W]e must start by dismantling the myth of intellectual property, and then search for a system of property rights capable of genuinely fostering innovation and productivity." If you'd like to learn more about why some would rather have no patent system at all rather than one that's lost its direction and has strayed far from its original intent, be sure to read the rest of The patent system: End it, don't mend it . Environmental Leader : A new fast-track program at the USPTO aims to speed up "green" patents with a more favorable through-put speed. From U.S. Speeding Up ‘Green’ Patent Process come further details of this much-anticipated pilot program: The new system is expected to take about 12 months off the process, according to the Wall Street Journal. American competitiveness depends on innovation and innovation depends on creative Americans developing new technology,” U.S. Commerce Secretary Gary Locke said, in a press release. By ensuring that many new products will receive patent protection more quickly, we can encourage our brightest innovators to invest needed resources in developing new technologies and help bring those technologies to market more quickly,” Locke added. Great news for the tens of thousands of green patents caught up in the huge backlog at the USPTO and certainly a move that could encourage more cleantech companies to protect their IP with a patent. CNet News : Michael Arrington must be fuming and/or getting ready to blow his top because Fusion Garage is already demoing the JooJoo touchpad computer (nee Crunchpad) to the press. Rafe Needleman offers his thoughts on this nascent, and expensive, dream product in his recent review, Hands on with the JooJoo . He writes: Is the JooJoo a great device? Yes, it is. But at the $499 price point, we don't think it will be a success. It does less than a Netbook--it won't run productivity apps that aren't browser-based--and it's helpless when away from a Wi-Fi connection. It's a great computer for browsing the Web from the couch, but at its current price it's a luxury item, an indulgence. It's hard to justify its purchase in the way buyers can rationalize an iPhone or a Kindle. It's not a product we'd recommend to anyone who needs their computers for productivity. It's not a device for students, or workers, nor is it a good family room computer (the keyboard isn't good enough). You can get a capable laptop for $500 that does much more than the JooJoo. Not very glowing but admittedly the JooJoo is a very focused piece of techware and the folks at Fusion Garage might also decide to offer third-party companies the option to brand the device, thereby subsidizing the high price. As an added bonus, the comment section that accompanies the piece is long and varied with many weighing in as to the validity of the device's pedigree given that up until a week ago it was called the Crunchpad before being summarily rebranded and removed from TechCrunch founder Michael Arrington's clutched hands. TechDirt.com : Mike Masnick reports on one author's viewpoint concerning Amazon.com's Kindle book reader and Google Books and why they're the spawn of the devil. From Novelist And Poet Says Google Books And The Kindle Are 'Nazi' Technology : The basic summary is that Nazis used "high tech" methods to more efficiently exterminate the Jews, and thus, pretty much any modern technology that hasn't been carefully reviewed to make sure it can only be used for good purposes, is a continuation of Nazi efforts. One of my first thoughts is "How in the world can this guy get press when he's clearly not using the most cogent methods of arguing his point?" followed by "Quick, someone book a room at Bedlam!" Masnick sums up his opinion of Sherman Alexie's rant thusly: "Automatically assuming that all new high tech is a straight line from the Holocaust is just sickening and delusional beyond pretty much any level of standard luddism." I wonder if Mr. Alexie is living in Kazinsky Estates and if so, does he use a typewriter to pound out his anti-technology diatribes, or does he do so using a computer? Good times, people. You usually have to pay lots of money for this kind of entertainment. IP Osgoode : Feminism and Intellectual Property Law . That's the topic of discussion for Munyonzwe Hamalengwa. Hamalengwa is a Ph.D candidate at Osgoode Hall Law School and is taking the Intellectual Property Theory course which explains the topical piece she offers up for your perusal, oh gentle reader. Here is a short excerpt from Hamalengwa's piece: The assault of feminism, marxism, critical legal studies and critical race theorists on the supposed neutrality and objectivism of the western legal system has to some great extent engendered palpable paradigm shifts and intellectual understandings of the actual designs of the law and along the way, major reforms have occurred: women and black peoples’ evidence is accorded on the surface the same weight as that of the white men; anyone can serve on the jury and can vote and go to school and slavery is prohibited; women can enter into contracts and own property. But there are still major problems experienced by women, aboriginals and the developing world in gain fully equal recognition and status in the dispensation of intellectual property law. Feminism is perhaps the most potent intellectual current that is deconstructing this area of legal impairment. She does make a good point. Women in many countries, including examples in our very own nation, are not afforded the same opportunities to protect their ideas and knowledge in a formalized manner that offers them remuneration for the same. And although the law is technically blind to the differences between the sexes when it comes to intellectual property protection, the stark reality is that until women hold positions of power that will enable them to help all applicants, regardless of gender, to seek protection for their IP, a huge inequity will continue to cripple the development of commerce and wealth generation. Bonus IP piece o' the day: Blockbuster, Netflix Win Patent Litigation by Erik Gruenwedelat Home Media Magazine . | |||
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| Fusion Garage To Launch Crunchpad With New Name Despite Claims of IP Theft | |||
| Written by Anthony Dale Kuhn | |||
| The New York Times - BITS Column : Michael Arrington's special project, the Crunchpad, has taken on new life as the company he accuses of stealing the IP behind the touchscreen web-browsing computer decides to go it alone. Claire Cain Miller provides further details in her topical piece, The CrunchPad Is Resurrected as the Joo Joo . She reports: The CrunchPad, an upcoming tablet computer that was left for dead last week, is alive, rechristened the Joo Joo. For those of you who care most about how to get your hands on one of these tablet computers, here’s what you need to know: the black tablet, with a 12.1-inch touchscreen, boots in nine seconds and connects to the Internet. It has no other applications — it’s just for browsing the Web — and a touch keyboard appears when the user needs it. The Joo Joo will be available for pre-order on Dec. 11 for $499 at TheJooJoo.com and will ship eight to ten weeks later, according to Fusion Garage, the company that is producing it. Arrington is livid that a company he let share his TechCrunch office space and with whom he jointly created the Crunchpad/Joo Joo would leave him holding the bag after much hard work and hundreds of thousands of invested dollars. "'It’s legally impossible for them to simply build and sell the device without our agreement,' Mr. Arrington wrote on his blog." And as Arrington is a lawyer, he might have something in store for Fusion Garage this holiday season that looks more like a huge lump of coal than a "thanks-for-a-job-well-done" fruit basket. Bah humbug! ZDNet.com : Apple might be getting ready to swallow a bitter pill if a recent lawsuit by a patent-holding company has any merit. Rachael King reports: "Apple has a new problem with it’s [sic] iPhone: the built-in camera might be infringing on some digital camera patents. St. Clair Intellectual Property Consultants is suing Apple, contending that the Cupertino-based companies is stepping on some toes with some of the 3-megapixel camera’s features concerning the lens and memory. The four St. Clair-held patents in question are ‘459, ‘219, ‘010 and ‘899." And because St. Clair has already gathered up millions in damages from other companies that infringed on their patent portfolio, in all likelihood Apple will soon be paying the piper a pretty penny to keep its cash cow iPhone products in the market. Read Apple in trouble over alleged iPhone camera infringement for more details. The TTABlog : John L. Welch carefully watches the dockets of IP-related courts and recently pondered whether or not the term "vintage pink" is worthy of special protection under trademark law. From Welch's "VINTAGE PINK" Not Merely Descriptive of Jewelry and Clothing, Says TTAB we learn more: "In a determination 'not free from doubt,' the Board reversed a Section 2(e)(1) refusal to register VINTAGE PINK, finding it not merely descriptive of various jewelry and clothing items. Although Applicant admitted that some of her goods will be pink in color and will follow a 'retro style,' she contended that neither the color pink nor the 'retro style' is a significant attribute of her goods. In re Ashley O’Rourke, Serial No. 77093617 (December 2, 2009) [not precedential]." In the end, the court decided that the two words taken together provide more than a simple description of the items for sale and therefor "any doubt as to mere descriptiveness must be resolved in favor of Applicant." Tricky, those words and descriptors at times, don't you think, gentle reader? United States Patent and Trademark Office : Here's a bit of information on the India-US memorandum of understanding (MOU) that focused on bilateral intellectual property rights. "The Commerce Department’s United States Patent and Trademark Office (USPTO) and India’s Department of Industrial Policy and Promotion (DIPP) today announced the signing of a Memorandum of Understanding (MOU) on comprehensive bilateral cooperation on intellectual property rights (IPR) protection and enforcement. Under the terms of the MOU, the USPTO and DIPP will cooperate on a range of IPR issues, focusing on capacity building, human resource development, and raising public awareness of the importance of IPR." The MOU includes "an accompanying Action Plan to carry out specific activities under the MOU, including exposure to patent examination practices, exchanges of information on patent databases and patent manuals, IPR awareness programs, exchange of information on traditional knowledge and genetic resources, exchanges of best practices, and other matters." For more information on this ground-breaking agreement, check out the complete news release entitled USPTO and India’s Department of Industrial Policy and Promotion Sign Memorandum of Understanding on Bilateral Intellectual Property Rights Cooperation . HS Today : The US Department of Homeland Security is responsible for many protective measure to help keep the nation free from terrorist attacks but there's another side to the agency that focuses on making sure US intellectual property is protected from fake imports and homegrown infringement known as Immigration and Customs Enforcement (ICE). Phil Leggiere reports: Immigration and Customs Enforcement places a significant emphasis on reducing the threat to health and safety posed by the trafficking of counterfeit, unapproved, and substandard pharmaceuticals. Due to the current 2009 H1N1 threat, this emphasis now includes efforts to identify and interdict counterfeit 2009 H1N1 vaccines and other influenza treatment products, such as counterfeit antiviral medications. In addition to the investigative resources of the ICE Office of Investigations, and the Office of International Affairs, ICE spearheaded the establishment of a new National Intellectual Property Rights Coordination Center (IPR Center). A recent operation by the center netted thousands of suspected counterfeit drug packages from all over America. The partnerships embraced by the NIPRCC include an outreach program with the Mexican Customs Bureau in an effort to reduce "cross-border commercial fraud issues between our two countries." You can check out Leggiere's Counterfeit Goods Remain Huge Border Challenge for more. Bonus IP piece o' the day: Artists' lawsuit: major record labels are the real pirates by Jacqui Cheng at ArsTechnica.com . | |||
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| UN's Copenhagen Climate Change Conference Target Of Intellectual Property Punditry | |||
| Written by Anthony Dale Kuhn | |||
| IPWatchdog.com : As the United Nations Climate Change Conference in Copenhagen looms large, one IP pundit tackles the thorny issue of global warming and the fallacy behind it. Said pundit also questions the benefits of first world nations sharing their hard-won intellectual property in order to help developing nations reduce their carbon footprints. From Gene Quinn's topical piece on these contentious issues, Say NO to Patent Sharing in Wake of Global Warming Fraud : ...[O]ne of the key platform items in the climate change negotiations between and among the international community has been the focus on sharing intellectual property so as to allow developing and undeveloped countries to curb carbon emissions and otherwise be environmentally friendly. Of course “sharing” is code for permanently borrowing without remuneration (i.e., stealing) and “intellectual property” is code for innovation (i.e., patents). So the collective wisdom of much of the international community seems to be that individuals and businesses that have devoted substantial amounts of time, money and energy to develop new and unique innovations should simply donate those to the cause for free. As if that would encourage any further advances or the march of innovation in the future! Simply put, a terribly bad idea even if global warming were real. It is nearly criminal given that so much of this all now seems to be a hoax. "Hoax" might be a strong word to describe the apparent shenanigans behind the on-going claims that CO2 emissions are causing the average temperature of Planet Earth to rise, but that doesn't stop the unusually tenacious and vocal Quinn from putting forth such vituperations. I can only guess that he finds the fact of IP involvement in the climate change debate enough justification to rant and rave about how incorrect scientists are about the warming earth and to don his armchair expert helmet to head-butt his way into the conversation. Fibre2fashion.com : Praise for the US Senate's confirmation of Victoria Espinel as the Obama administration's IP Czar are trickling in including this from the American Apparel & Footwear Association (AAFA): President and CEO Kevin M. Burke released the following statement applauding last night’s confirmation of Victoria Espinel by the U.S. Senate to be the nation’s first Intellectual Property Enforcement Coordinator. “I am thrilled that the Senate has swiftly confirmed Victoria Espinel to serve as the first-ever Intellectual Property Enforcement Coordinator. Ms. Espinel’s vast experience dealing with intellectual property issues will provide President Obama with the necessary knowledge to push forward important enforcement efforts needed to fight the growing prevalence of counterfeit products crossing our borders." In the business of shoes and shirts, piracy and counterfeiting damages run into the billions of dollars and it only makes good sense for the chief of the AAFA to embrace the appointment of a sympathetic person to the newly-created IP Czar position aka Intellectual Property Enforcement Coordinator, don't you agree? Check out the rest of Burke's glowing statement in AAFA congratulates new Intellectual Property Coordinator . The Austin Chronicle : The Republican Party of Texas might be in for an IP showdown after its new online attack ad, featuring unauthorized use of a song by "The Platters," comes under partisan scrutiny. But seeing as the potentially aggrieved is deceased, no shots will probably be fired. Richard Whittaker reports: The Republican Party of Texas has been getting a lot of free press for its new online attack ad about Houston Mayor Bill White. One problem: There's a very good chance the ad may violate copyright law. The ad, entitled Bill White: Too Liberal for Texas, features a litany of claims about White, accompanied by about 90 seconds of "The Great Pretender," performed by The Platters and written by their manager, Buck Ram. Now this was a 1955 recording: Ram only died in 1991, and the band is still touring (actually, due to complicated legal wranglings, there are multiple versions of the band). The communications manager for the RP of T is claiming IP immunity due to the song's usage in a parody, but not everyone's buying that Texas tell tale. Find out the rest of the facts by reading Whittaker's Protecting (Intellectual) Property . PatentBaristas.com : As the end of 2009 draws near, the expected batch of "Best of" and "Top 10" lists begin to be featured in a variety of venues. Although the audience might be more limited than say, a list of the Top 10 Prejean Sex Tapes, Stephen Albainy-Jenei's recent post featuring the 3rd Annual Blawg 100 is no less entertaining. Or, if you're in the mood for something more compact and personal, Albainy-Jenei also offers up a selection of his favorite blogs for your perusal. For more on what makes a law blog a "blawg" and other related thoughts, read Vote: Blawg 100 Law Blogs . Change.org : Here's a paragraph to kick off some lively conversation about Big Pharma and the supposed "need" to increase IP protections for their products: ...[W]hen PhRMA runs doomsday ads telling you that paying less means you’ll suffer and die because new and innovative drugs won't be available, turn off the TV. The truth is that Congress allows PhRMA to reap monopoly-like profits for sub-par drugs (did I mention its lobbying budget?) Our high drug prices actually play a role in US companies being less innovative and productive. It starting to sound a lot like the private insurance industry, isn’t it? Putting these behemoths on a diet will save us from bankruptcy and them from the same fate as American automotive dinosaurs. Article author Gillian Hubble goes on in her piece to unveil the faulty methodology used by Big Pharma to try to gain government handouts in the form of increased monopolies for their products which ends up being the very thing that creates a situation of being hoist by their own petard. Big Pharma needs someone sharp like AHIP’s Karen Ignani. It’s gotten fat, lazy and stupid relying on regular government handouts for minimal work. Either that or it’s high on its own products. Because it was caught red-handed punching holes in its own adopted methodology for proving US drug innovation leads the globe. Turns out it doesn’t, even by clearly US-biased criteria. That fact, and PhRMA’s response, won’t help its case in the court of public opinion. But it still gets away with bank robbery in current healthcare reform legislation. Bank robbery or not, Big Pharma and their fellow health care robber barons are profiting from practices that would be felonious were it not for their huge lobbying budgets for liberal use in lining the pockets of our nation's highest politicians in hopes of convincing them that a pile of brown malarkey by any other name is a rose. At least they always seem to come away smelling like one. Big Pharma Exposes US Drug Innovation Lie for the win. Bonus IP piece o' the day: Ocean Spray: Ocean Spray: Rival cranberry company has been told to allow plant inspection by Jon Chesto at WickedLocal.com . | |||
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| CAFC Judgment: So What Exactly Is Common Sense? | |||
| Written by Anthony Dale Kuhn | |||
| IPWatchdog.com : Common sense is a somewhat indeterminate thing but it seems that the United States Court of Appeals for the Federal Circuit (CAFC) has nailed down a more exact test as to what can, or cannot, be found common sense. Gene Quinn weighs in on a recent CAFC judgment: Earlier today in Perfect Web Technologies, Inc. v. Infousa, Inc. the United States Court of Appeals for the Federal Circuit determined that the district court properly ruled the relevant patent claims of US Patent No. 6,631,400 were invalid as a result of being obvious. In so doing, Judge Linn writing for the panel (consisting additional of Judges Prost and Dyk) determined that the claims in question were obvious as a result of being common sense. Undoubtedly the Supreme Court ushered in a new era when it decided that rather than ground obviousness determinations in objective fact they should be subjectively open to whim and fancy. Sounds very unsound, these "determinations in objective fact" that are newly open to "whim and fancy," wouldn't you agree, gentle reader? Quinn calls for a far more objective measure when applying the "common sense" test. "The process matters, truth matters and by the very nature of what I observe every day a good many things that I think are common sense simply are not common or sensible in the minds of others. A moving, unpredictable target just cannot be the standard." Ah, yes, but life, and patent process are not so simple, Mr. Quinn, and to suggest that every case must fall cleanly and exactly into a given legal space is just not realistic. That's why we have judicial opinions and a variety of processes in place to allow a defendant multiple chances to make sure the judgment is sound and one that is agreeable to more than one legal expert. Or? OregonLive.com : A Portland patent-holder is fighting a legal battle against a competing product that he claims infringers on his medical device. According to Bryan Denson, a reporter for The Oregonian, the case is an on-going one that is growing a bit long in the tooth: An appeals court Wednesday reversed a judgment against a Florida company accused of infringing on a Portland doctor's patented device for repairing shoulders and other joints. Portland jurors determined in June 2008 that Arthrex Inc. had intentionally infringed on a patent owned by Dr. John O. Hayhurst and licensed to Smith & Nephew Inc., a global medical technology business. Wednesday's reversal by the U.S. Court of Appeals for the Federal Circuit, based in Washington, D.C., sends the case back to Portland's U.S. District Court for a third trial. The device in question is one that led Dr. Hayhurst to "accuse Arthrex of using a similar anchor, often used in surgeries for torn rotator cuffs, which infringes on their patent" to which Arthrex counters that their device uses a different method of attachment, "much like a nail" whereas Hayhurst's "invention operates more like a clothespin." For more details on this particular patent case, check out Denson's Reversal sends medical patent case back to Portland . SFGate.com : Should the owners of cleantech patents share them with developing countries in an attempt to help the world fight global warming in a united effort that spans economic and national boundaries or is it better if the patent holders gain as much return on their ideas as possible to help them develop their technologies while remaining profitable? Lois Kazakoff joins the conversation: The debate is of particular interest to the Bay Area because many of the companies and institutions involved are here. Both UC Berkeley and the Lawrence Berkeley National Laboratory have expertise in international collaboration on clean tech research and development, including the invention of fuel-efficient cookstoves for Africa's poor. The Center for Environmental Public Policy at UC Berkeley has released a report on the battle over intellectual property rights in the transfer of low-carbon technologies to developing countries. You can read the report, "Who owns the Clean Tech Revolution?" here. Recognizing the issue is deadlocked, organizers of the U.N. climate conference that begins next week in Copenhagen have put forth proposals for "technology action programs" that would help bring climate-saving technologies to poor nations. To learn what one IP expert thinks is the way forward in this bitter IP stalemate, be sure to check out the rest of Kazakoff's Skirmishes in the Clean Tech revolution . NewsBlaze : Digital Rights Management (DRM) is a hot intellectual property area and IP purveyor and auctionhouse Ocean Tomo is putting some DRM patents on the block for sale. From ICAP Ocean Tomo Engaged to Sell Intellectual Property Portfolio of DRM Technology Owned by Samantha Inventions come more details: ICAP Ocean Tomo announced today it has been engaged to sell an intellectual property portfolio of 6 issued U.S. patents relating to DRM (Digital Rights Management) technology. Cited by industry giants Sony, Microsoft, and Hitachi, the assets support a wide range of business models such as content downloads, music subscription services, DVD digital copy, and DRM software tools. The patents disclose techniques and methods enabling enhanced protection of audio and video content, as well as secure delivery of digital content for playback on computers, portable devices, and network devices. All parties involved seem quite pleased with the planned sale, and as Dean Becker, ICAP Ocean Tomo President puts it, "We are very excited to be working with Samantha Inventions to bring this valuable technology to market." PatentBaristas.com : The protection of cultural and traditional knowledge has taken a step in the right direction with a new agreement between India and the United States. Stephen Albainy-Jenie explains: "India and United States have signed two inter-governmental agreements on Intellectual Property Rights (IPR) to help prevent what they say is the misappropriation of traditional knowledge through mistaken issuance of patents, what some call biopiracy." Biopiracy theft is "a process in which living resources or traditional knowledge and practices are patented, thus applying intellectual property restrictions to their use. The resources in question are predominantly from developing countries, and are the subject of patent applications by companies in developed countries." The agreement will enable the USPTO "to search the database of India’s traditional knowledge" while at the same time "prevent the patenting, and thereby misappropriation, of existing traditional knowledge." A good sounding way to get more protecetion for traditional understandings of local areas that have sometimes been co-opted for profit without benefiting those who hold the knowledge in question. Read Albainy-Jenei's U.S. Patent Office Gains Access to Traditional Knowledge Digital Library (TKDL) for the rest of this refreshing story. Bonus IP piece o' the day: District looks to trademark Byrnes High Rebels logo by Lee G. Healy at GoUpstate.com . | |||
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| British Digital Economy Bill And The Nebulous Clause 17 | |||
| Written by Anthony Dale Kuhn | |||
| BBC News : The Queen's speech last month introduced the idea to the British public that there might be some large changes to content protection and intellectual property laws and was soon followed by the announcement of the Digital Economy Bill. Many portions of the bill's proposed changes to current IP laws in Great Britain were to be expected but one section in the legislation gave many cause for concern: Clause 17. Jonathan Fildes fills us in on why Clause 17 is raising the red flag for Commonwealth citizens and big industry players alike: Some of the biggest names on the web have written to Peter Mandelson to express "grave concerns" about elements of the Digital Economy Bill. Facebook, Google, Yahoo and eBay object to a clause that they say could give government "unprecedented and sweeping powers" to amend copyright laws. "We urge you to remove Clause 17 from the bill," the letter read. However, the government has said it believes the clause will "future-proof online copyright laws". "The law must keep pace with technology, so that the Government can act if new ways of seriously infringing copyright develop in the future," a spokesperson for the Department for Business, Innovation and Skills (Bis). The consortium believe that if Clause 17, as it is known, is approved it will give "any future Secretary of State" the ability to amend copyright laws as they see fit. And it's that last sentence that have people, and businesses, up in arms as current laws provide the stability many entrepreneurs need to survive. They rightfully claim that "This clause would inject an unprecedented level of uncertainty in this regard." Check out Fildes' Web giants unite against Digital Britain copyright plan for more on this united attack against uncertainty and too much freedom to regulate. IP Prospective : Corporate & securities and intellectual property law attorney Ian D. McClure is an expert on "the exciting issues of IP protection, IP monetization, IP management, IP finance, and IP investment" and offers his thoughts on Fair Use Vs. "Don't You Dare Use It" in his topical piece entitled Two Takes on Intellectual Property Rights: Academic vs. Legal . McClure writes: ...[T]here is a point of diminishing marginal returns, where every extra unit of “protection” of intellectual property rights actually begins to produce less of an incentivizing effect. In turn, the more “exclusivity” encompassed in the IP rights granted to an author/inventor/artist, the less creation results. Here, “exclusivity” is defined by (1) the duration of the term of protection, (2) the disclosure that is required in the registration process (less disclosure required = less creation), (3) whether compulsory licenses are granted or required under respective law, (4) whether and to what extent disclosure is required in transactions involving intellectual property rights, including licenses, and (5) whether and to what extent “fair use” of intellectual property is allowed under respective law. McClure, of course, believes in IP protection but correctly assumes that too much of a good thing can actually be bad. You know, like that last shot of tequila from a now-empty bottle that just 2 short hours ago was simply a lime-salt-worm bit of good cheer shared with a few friends at the local taqueria. With some solid facts (are there *really* such things as "solid facts"?) and some zippy graphs to back them up, McClure's argument at least has the potential to start up a lively comment section if not an actual flame war. The 271 Patent Blog : The NTP vs. RIM case has generated plenty of IP lawsuit interest after "NTP successfully asserted 5 patents against RIM, receiving judgment in the amount of $53.7M, as well as a permanent injunction" but that's not the end of the story, gentle reader. Peter Zura deigns to fill us in on what's happening now in this on-going IP battle that continues to garner plenty of attention: While this controversy continues to linger, the BPAI [Ed. Board of Patent Appeals and Interferences] has released opinions on 3 of the 5 NTP patents that were rejected during reexamination. In the opinions, some of the rejections were reversed, but most of the rejections, particularly the obviousness rejections (now subject to KSR), were upheld. It appears that all of NTP's claims are rejected. The opinions are an interesting read, but long - in total, the 3 opinions are almost 800 pages in length and address hundreds of different claims. If wading through dense legal documents is your idea of a good time, be certain not to miss Zura's post on the matter, BPAI Starts Issuing Decisions on NTP/RIM Patent Reexaminations . Bauer Business Law, LLC : If you haven't already heard about it, a new Google tool "allows Internet users to annotate comments on websites" and is generating its fair share of intellectual property concerns according to a recent article by Andrew. He writes, "Most website comments annotated with Sidewiki that I saw in a quick, wildly unrepresentative and unscientific survey I conducted are precisely that — commentary, either praising or respectfully responding to the content on the site. However, it is easy to imagine Sidewiki being used for competitive, abusive or deceptive purposes. For example, a competitor could trash a site’s products and services or post links to its own site in an effort to divert traffic. Or (as happened recently with Apple and other high-profile sites), a nattering nabob of negativism could simply post pejorative comments without any type of economic agenda whatsoever. All of this raises a host of intellectual property and brand abuse issues for site owners." To check out Andrew's enumeration of these potential abuses and how any business can take action against "unlawful" use of Google's Sidewiki product, just click on the following link: Sidewiki Raises IP, Brand Concerns for Site Owners . BusinessWeek.com : Apple computer clone maker Psystar would have been better armed to successfully bring its knock-off competitive computer line to market if they had studied the company's previous intellectual property fights more carefully. According to Lessons from the Apple-Psystar Battle by Peter Burroughs, Psystar is playing David to Apple's Goliath and might end up as a featured member in the "what not to do" playbook : Whatever the outcome of Psystar's ongoing battle, even now the saga carries some important lessons for other would-be challengers to tech's status quo. Don't pick a legal fight you can't win (put another way, don't mess with Apple). The onetime underdog is now one of the staunchest defenders of its intellectual property, and it has a $24 billion cash hoard to help press its case in court. Also, Psystar's young founders, Rudy and Robert Pedraza, could have checked their Apple history books. After Apple CEO Steve Jobs returned to the company in 1997, one of his first moves was to nix deals Apple then had with Power Computing, Motorola (MOT) and Umax, which briefly enjoyed a license from Apple to sell Mac lookalikes. Although Power Computing had vaulted to $400 million in sales thanks to Mac clones, Jobs got the company to leave the playing field in exchange for a payment of just $100 million. "Jobs has never stood by for anyone to go near Apple's IP, and they always go to the mat" to protect it, says Roger Kay, founder of Endpoint Technologies Associates. Burroughs says Psystar "certainly has scrappiness on its side" but will that be enough to overcome billions of dollars in Apple's legal offer and a slew of IP lawsuits that ended favorably for Jobs & Co.? Any one have a comment to offer up? Bonus IP piece o' the day: To troll or not to troll, is that the question? by Matt Asay at cnetNews.com . | |||
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| Canadians Not Favorably Impressed With Leaked ACTA Provisions | |||
| Written by Anthony Dale Kuhn | |||
| MichaelGeist.ca : Even Canadians are on the "down-with-ACTA" bandwagon and since they're not known for being a particularly rowdy bunch, there must be something to it, eh? Maple-leafer Michael Geist offers up a north-of-the-border viewpoint on the exposed secrets of an attempt by the US to foist their intellectual property laws on the innocents of the world: The European Commission analysis of ACTA's Internet chapter has leaked, indicating that the U.S. is seeking to push laws that extend beyond the WIPO Internet treaties and beyond current European Union law (the EC posted the existence of the document last week but refused to make it publicly available). The document contains detailed comments on the U.S. proposal, confirming the U.S. desire to promote a three-strikes and you're out policy, a Global DMCA, harmonized contributory copyright infringement rules, and the establishment of an international notice-and-takedown policy. Whoa there, Nelly! I'm not sure why more Europeans/Canadians/Chinese aren't staging anti-ACTA rallies by torchlight and with pitchforks firmly grasped in hand but could it be that most unsuspecting Internet users have no idea what's in store for them should this onerous bill become law? Get the rest of the simple facts of this sad situation in Geist's EU ACTA Analysis Leaks: Confirms Plans For Global DMCA, Encourage 3 Strikes Model . PatentBaristas.com : In other Canadian IP news, a trio of relevant patent laws are highlighted by none other than subject expert Stephen Albainy-Jenei in his recent blog post, Three Canadian Patent Decisions You Need To Know . In it, he writes: In Canada, linkage regulations similar to the Hatch-Waxman Act in the U.S. ensure that generics manufacturers have to address relevant patents listed on the Patent Register (the analog to the Orange Book) if they want to market their product prior to the expiry of listed patents. Generics manufacturers can do so either by accepting the terms of the patents, or by filing a Notice of Allegation (NOA) alleging, amongst other things, that they will not infringe the patent or that the patent is invalid. Three recent decisions litigated in this context contain important notes for pharma companies, biotech companies, generics companies and their patent attorneys and agents. For additional clues as to the identities of the three aforementioned "recent decisions," if that's what they're calling them these days up in Canadia, bravely click on the link above and take pride in your good fortune. Automobile.com : Ford Motor Co. and Chinese automaker Geely have struck a favorable deal on one of the stickiest parts of their negotiations for the foreign company to purchase Volvo. Andrew Peterson reports, "Good news for Chinese automaker Geely: It may have cleared one of the largest hurdles in purchasing Swedish automaker Volvo from the Ford Motor Company. According to a Europe-based Geely spokesman, the two firms have come to an agreement regarding Volvo’s intellectual property rights." In an effort to calm Ford's fears of the future theft of common Volvo/Ford intellectual property, a Geely rep stated that "if the sale goes through, Geely will take control of all technologies developed exclusively for Volvo. Volvo will also continue to access any Ford technology critical to the brand’s future development (we wouldn’t be surprised to see Ford’s inflatable seat belts in future Volvos), but Geely won’t be allowed to implement the same technology in its own product lines." We'll see what the future holds for this tricky, and potentially short-sighted, agreement if indeed Geely gets the trophy. Peterson's Ford and Geely Reach Agreement on Volvo’s Intellectual Property Rights should provide enough additional information to allay the gentle reader's apprehensions. Bloomberg.com : A major international pharmaceutical company is hoping to beat knock-off/generic drug producers at their own game overseas with a recent bid to start selling off-patent drugs themselves. Kanoko Matsuyama reports on this clever move from Tokyo: Pfizer Inc., maker of the world’s best-selling drug Lipitor, will enter the generic-drug market in Japan as early as 2011 to bolster sales of its medicines that have lost patent protection. The drugmaker will also expand the sales force in Japan to sell more brand-name products, Ichiro Umeda, appointed president of Pfizer Japan Inc. today, said at a briefing in Tokyo. Pfizer, which acquired Wyeth for $68 billion in October, won’t cut any jobs in Japan after the takeover to cope with sales of its wider product range in the country, Umeda said. This could be a direct reaction to the on-going fight Pfizer is in with Unilab to prevent illegal versions of its drugs from being produced and sold at generic prices. If Pfizer can find a way to not only monopolize its sales of Lipitor and also sell cheaper, generic versions of the drug in markets that can't stand the high prices of on-patent meds, it could soon have plenty of company in the "best-of-both-worlds" drug business. Read Matsuyama's Pfizer Will Start Generic-Drug Business in Japan (Update1) for the rest of the story. The TTABlog® : A recent bid to register a trademark that would not pass the "idiot in a hurry test" has again been knocked down and begs the questions: "Really? You think you could trademark a name for use in beer-related ways when the name is already registered for that purpose by another entity? How many beers did you consume before resubmitting your application after the first refusal?" John L. Welch shares his thoughts on the matter: "Applicant feebly contended that its mark AUGUSTINER 'does not resemble the mark' AUGUSTINER in the cited registration, but 'not surprisingly' Applicant offered no explanation. "Indeed this would be a difficult task as the marks are essentially identical other than the almost indistinguishable block style font in applicant's mark." Moreover, because the cited mark is in "typed form," the Board must consider 'all reasonable displays for purpose of comparison, including applicant's block style lettering.' In short, the Board found the marks to be 'essentially identical.'" If just changing the font of a trademarked word to be used in the same market as the original trademark was enough to get a registration, it would have already been done, nu? Grab a cold German beverage of choice and settle in to read Welch's WYHA? TTAB Affirms 2(d) Refusal of "AUGUSTINER" for Beer in View of Identical Mark for Same Goods . Bonus IP piece o' the day: Controlling The Costs Of Intellectual Property Litigation by Sanford E. Warren Jr. at The Metropolitan Corporate Counsel . | |||
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| Much-anticipated Crunchpad Meets Untimely Death Due To IP Issues | |||
| Written by Anthony Dale Kuhn | |||
| TechCrunch.com : In a strange, and unfortunate twist of fate, Michael Arrington's much anticipated open-source touchpad computer, known as the Crunchpad, has been sent to the Deadpool . And a battle over intellectual property is to blame, it appears. More from Arrington's blog post on the topic: On November 17, our deadline date for greenlighting the debut three days later, the CEO of our partner on the project, Chandra Rathakrishnan, sent me an email with the subject “no good news.” Yuck, I thought. Another delay, probably with the screen that had been giving us so much trouble – capacitive touch at 12 inches isn’t trivial. And sure enough, the email started off with “no good news to update. updated hardware is still on its way , so that’s a timing issue. friday will be a challenge now.” But the email went on. Bizarrely, we were being notified that we were no longer involved with the project. Our project. Chandra said that based on pressure from his shareholders he had decided to move forward and sell the device directly through Fusion Garage, without our involvement. Err, what? This is the equivalent of Foxconn, who build the iPhone, notifying Apple a couple of days before launch that they’d be moving ahead and selling the iPhone directly without any involvement from Apple. Chandra also forwarded an internal email from one of his shareholders. My favorite part of the email: “We still acknowledge that Arrington and TechCrunch bring some value to your business endeavor…If he agrees to our terms, we would have Arrington assume the role of visionary/evangelist/marketing head and Fusion Garage would acquire the rights to use the Crunchpad brand and name. Personally, I don’t think the name is all that important but you seem to be somewhat attached to the name.” And with that, the entire project self destructed. How the "shareholders" mentioned in the above passages came to the decision to boot Arrington from the Crunchpad project remains to be seen, but surely there will be legal hell to pay as the dirty details come to the light of day. Read the rest of the story in Arrington's The End Of The CrunchPad . PRNewswire : A new legal book takes the IP-interested reader inside the excitement of juried court cases involving patents and fraud. Here are some of the more pertinent bits from a recent news release on this topical tome entitled From Cross-Examination to Closing, Author Raymond P. Niro Shows Readers How to Win IP Trials : There is a thrilling -- some would say electrifying -- moment that occurs at a pivotal point in a trial, when the cross examination of a witness uncovers the truth from the familiar trappings of litigation. This type of courtroom drama and excitement is not usually associated with intellectual property (IP) trials, but in his new book, "GO FOR IT!: Cross-Examination To Closing: How To Win An Intellectual Property Trial Before A Jury" (published by AuthorHouse), author and seasoned litigator Raymond P. Niro offers readers a glimpse into his own playbook with the review of 18 of his own captivating IP cases. Going beyond pedantic discussions of intellectual property law and full court transcripts, "GO FOR IT!" takes readers into the heart of each trial to the critical moments that could make or break the case. Niro shows readers what others can't: how to conduct a seamless cross examination and then tie the pieces of a complex case together while drawing on emotion in the closing argument, achieving multi-million dollar verdicts not by chance but by deliberate strategy and skill. Although the book might appear to be tightly aimed at IP litigation-types, GO FOR IT! should otherwise serve as a late-night soporific for the slightly less-enthusiastic amateur IP wonk. In any case, such works are few and far in-between so if you're at all interested in the subject matter, you should simply GO FOR IT! The Wall Street Journal : Here's an excerpt from an upcoming WSJ book, The Wall Street Journal Complete Small Business Guidebook, that should get your IP appetite up if the previous book mentioned above didn't do it for you: Trademarks. A word, symbol, logo or image that identifies a product or service can be trademarked, as can a scent, sound or color (such as Tiffany Blue). There are more than forty classes of goods and services, and you can register a trademark (for a fee) in more than one category. A pastry shop owner, for instance, could register a trademark in both the food class (in the goods category) and the restaurant class (in the services category). You can conduct a free search to see if a mark is already registered on the USPTO's Web site using the Trademark Electronic Search System. The filing fee is $375 if done by paper and $275 to $325 if done electronically. See how simple and easy it is to understand the idea of a trademark when couched in layman's term that even the uninitiated business person can grasp? I recommend you click on through to scope out How to Protect Your Brilliant Idea for your very own self. William Mitchell College of Law : A group of students are working to translate a number of children's books into traditional Native languages and are also learning to navigate the necessary intellectual property laws to use the text of the books for their efforts. From Mitchell Intellectual Property Clinic students working to preserve Native languages come more details of this excellent effort: Students in William Mitchell’s Intellectual Property Clinic are working to preserve Native languages. With support from Professor Jay Erstling, 4L Kodi Jean Church and 3L Bob Larson are helping the Alliance for Early Childhood Professionals secure permission to translate copyrighted children’s books into the Dakota and Ojibwe languages. Margaret Boyer, executive director of the Alliance, contacted William Mitchell’s Intellectual Property Clinic for help in seeking permissions. The project started last year when Steve Foley ’09 secured permission to translate four books—Dandelion, Noisy Nora, Oonga Boonga, and The Carrot Seed. These books are currently being used in schools to teach Indian children to speak their native languages. Professor Ertsling is quoted in the piece as saying "This project fits in with the mission and goals of William Mitchell’s Intellectual Property Clinic, which is to provide representation to people who may not otherwise be able to get representation and to examine issues of public policy and intellectual property." A good effort by the students and professor to help rescue dying American languages from extinction while at the same time enabling the students to learn more about intellectual property laws. Everyone wins! CNNMoney.com : A corporation that makes a variety of entertainment products and services has won a Pyrrhic victory against Sir Richard Branson's Virgin Media. Here's meat of the matter: "The High Court of Justice in the United Kingdom has issued its judgment in Rovi's patent infringement litigation against Virgin Media. Rovi had sued Virgin Media for infringing three interactive program guide patents issued in the U.K. The Court found that Virgin had infringed each of the patents but also found them to be invalid. The High Court of Justice in the United Kingdom has issued its judgment in Rovi's patent infringement litigation against Virgin Media. Rovi had sued Virgin Media for infringing three interactive program guide patents issued in the U.K. The Court found that Virgin had infringed each of the patents but also found them to be invalid." Samir Armaly, SVP of Worldwide Patent Licensing for Rovi, comments on the decision: "While we are pleased that the court found all of the patents to be infringed by Virgin, we strongly disagree with the court's ruling on the validity issues, and intend to appeal the decision. We also intend to continue to pursue Virgin and other unlicensed companies for their infringement of our intellectual property..." Further info on this mixed bag of legal judgment-making is available in Ruling on Litigation With Virgin Media . | |||
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| Reporter Files Patent For Method To Get An Interview With USPTO Chief | |||
| Written by Anthony Dale Kuhn | |||
| ABAJournal : After trying to contact the chief of the US Patent and Trademark Office with unsuccessful results, one wily senior writer at the American Board Association landed on a new and improved method of getting an interview with David Kappos: he filed a patent application. Edward A. Adams reports: ...[W]e sent senior writer Terry Carter to find out how Kappos is doing. There’s only one problem: There’s a second bottleneck—this one in Kappos’ press office. Carter left a message with a staffer at the PTO’s media relations department. He didn’t hear back. A few days later, he sent an e-mail to Peter Pappas, the agency’s chief communications officer. Again, he didn’t hear back. A few days after that, Carter got Pappas on the phone. Pappas said he was in a meeting and would call Carter back. You know the story: He didn’t hear back. We figured the problem was that Carter wasn’t speaking the agency’s language. So Carter has drafted the following patent application for a “method for a journalist to get an interview with USPTO Director David Kappos.” As fortune would have it, Pappas' crew quickly found time for Kappos to meet with Carter for an interview. The best part of Adams' piece, the patent application, can be found in Patent Pending: How to Get an Interview With the PTO Chief along with the rest of this humorous attempt to reach the USPTO. StephanKinsella.com : In a recent piece, a self-professed libertarian lawyer makes a broad assessment about the plight of companies who are found to be (innocently) infringing on someone else's patent: "...I have never, ever, even once, seen a case where the client’s engineers copied the patented invention. In every case that I can recall, the company designed its product on its own–using available technology, to meet the market demands–and then only later were made aware of some patent buried among millions in the bowels of the patent office." The Chinese might find that claim "interesting," but I find it to be a singular viewpoint and one worthy of further investigation. What about "due diligence" and all that jazz? One would imagine that if a business is going to invest large quantities of money and equity in the production of a new product, that it might behoove them to be sure that there isn't already such a product in existence so as not to run over the toes of a "hidden" patent. Kinsella sums up how he sees the current patent system thusly: "The current one is undeniably a mess. And it’s just an arbitrary fake-law scheme enacted by an obviously incompetent, evil, illegitimate, and criminal state." If you'd like to see more of a libertarian's viewpoint on patents and the right of an inventor to claim "independent creation" when faced with an IP lawsuit, be sure to check out Kinsella's Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense . PatentBaristas.com : Here's a topic for discussion that's certain to generate plenty of interest: Why Are Drugs Expensive in the US? Because Other Countries Just Decide to Pay Less . Stephen Albainy-Jenei starts things off for us: "In the case of drugs and medicines, the patent owner has no right to prevent the testing, using, making or selling of the invention including any data related thereto, solely for purposes reasonably related to the development and submission of information and issuance of approvals by government regulatory organizations required under any law of the Philippines, or of another country that regulates the manufacture, construction, use or sale of any product." At issue is the attempt to patent a form of an already patented medicine which is explicitly a no-no according to the contents of the Quality Medicine Act, which reads, in part: "the mere discovery of a new form of a new property of a known substance which does not result in the enhancement of the known efficacy of that substance, or the mere discovery of any new property or new use for a known substance, or the mere use of a known process unless such known process results in a new product that employs at least one new reactant is non-patentable. In addition, a patent owner has no right to prevent third parties from using a patent without his authorization after a drug or medicine has been introduced in the Philippines or anywhere else in the world by the patent holder or by any party authorized to use the invention. The Act also grants the right to import drugs and medicines to any government agency or any private third party." Ouch! That's not keeping Pfizer from fighting tooth and nail with Unilab to prevent their patent application for a Lipitor competitor from becoming a bona-fide patent. The stakes in this case are high, as sales of Lipitor are currently in the stratospehric 10+ billion dollar-a-year range. In a separate and unrelated piece from PatentBaristas.com , Albainy-Jenei presents his yearly Best Gifts for Patent Attorneys 2009 for your gifting enjoyment. Here's just one of his great IP-helpful ideas for that certain intellectual property intellectual on your list this year: SurfShelf Treadmill Desk and Laptop Holder $39 – If you must exercise, at least now you can still bill for your time. The SurfShelf treadmill desk attaches any laptop or portable DVD player to most any exercise machine so you can get buff and still hit your billable goal. We’re not sure if sweat voids your laptop warranty, though. When you’re ready to ramp things up, try the Kettler Racer GT Indoor Cycle Trainer. Ever thoughtful, Albainy-Jenei has also included a link to last year's selections so be sure to check out the rest of his carefully-chosen presents if you're unsure what to get for an IP enthusiast. Boston.com : A Brazilian inventor decided to take his case for his patented idea to the highest heights in an attempt to secure the rights to his idea. Mike Shepard reports: "Paulo Roberto Vieira stumbled into the Brazilian consulate, bedraggled, nearly broke, and at the end of his rope. Dressed in a battered black leather jacket and scuffed black jeans, he told consular officials an almost unbelievable story: He had ridden his motorcycle from his home town in southern Brazil to Washington, an 18,000-mile quest for official recognition of his life’s proudest work, an automobile accessory he said he invented." The invention in question is a system to alert automobile drivers that their tire pressure is low via an alarm . Vieira hopes to build a factory to produce the tire pressure alarm system but because a patent for such a system already exists in the US, he needed to secure international rights to his invention before pressing ahead with his production plans. Hence, the trip to DC after unsuccessful attempts to navigate the complexities of international IP laws from Brazil. Although he was unable to gain access to the necessary resources to get the US patent overturned in his favor, Vieira "declared victory" and is looking for a way to make his dream come true. Read Brazilian motorcyclist hits the road to stake claim on invention for the win. Bonus IP piece o' the day: Retiring by the Patent Hawk at PatentProspector.com . | |||
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| Senators Decry ACTA Secrecy, Call For Transparency | |||
| Written by Anthony Dale Kuhn | |||
| TechDirt.com : ACTA has finally attracted some senatorial attention, but a measly dynamic-duo of legislators might not be enough to turn the tides in favor of a public process. Mike Masnick reports: Senators Bernie Sanders and Sherrod Brown have sent a letter to US Trade Rep Ron Kirk asking for ACTA documents to be made public. The letter points out that "the public has a right to monitor and express informed views on proposals of such magnitude" especially considering that "there are concerns about the impact of ACTA on the privacy and civil rights of individuals, on the supply of products under the first sale doctrine, on the markets for legitimate generic medicines, and on consumers and innovation in general." The letter also takes on the bogus claims of state secrets in protecting ACTA documents[.] But to learn more about those claims, you'll have to check out Masnick's entire piece, Senators Begin Questioning ACTA Secrecy , for yourself. Transparency and open government have been the buzzwords of choice for the current administration, but when will we actually seen them being put into action? In separate and unrelated piece at TechDirt.com , Masnick covers the opening salvo in a battle between IMAX and a newly-single, competitive ex-BFF who appears to be borrowing heavily from their former buddy's immersive movie experience playdeck. Here's the inside skinny on the maxi-silverscreen foofarah: The details of the case certainly look like a business deal gone bad, and also involve Cinemark preemptively going to Texas (of course) to file a patent action against IMAX, asking the court to make clear that it does not infringe on IMAX's patents. There may very well be breach of contract issues involved here, so IMAX may have a decent case on that front. But what's more interesting is the question of whether or not there are trade secret violations here. We don't talk about trade secret protections as much around here, because they really don't come up that often. But IMAX is claiming that it shared proprietary trade secret info with Cinemark as part of their relationship, and that info was used by Cinemark to build its competing service. If this case strikes you as curious and worthy of further investigation, be sure to read IMAX Sues Cinemark For Building Competing System... While Being An IMAX Customer for the rest of this larger-than-life battle royale in the making. PatentBaristas.com : Sure, it's no longer Monday, but that doesn't mean that the constant and gentle reader can't enjoy one of Stephen Albainy-Jenei's weekly book reviews, does it? I think not! So, with no further ado, here's a snippet of his latest effort, Book Review Monday: Gray Markets: Prevention, Detection, and Litigation : In the new book "Gray Markets: Prevention, Detection and Litigation" by David Sugden, the author claims that such a market causes estimated losses of $40 billion in annual sales for technology manufacturers alone. Sugden provides a comprehensive analysis of the gray market as well as a road map for handling gray market cases. And lest you think that the gray market only involves Yamaha pianos and European BMWs, there's a much more dire reality to the situation. "One example shows the case of Fagan v Amerisourcebergen Corp. et al. Fagan suffered personal injuries as a result of repeated injection of counterfeit Epogen used to treat anemia. Fagan continued to receive and inject counterfeit Epogen even after the counterfeits were discovered. He brought proceedings for personal injuries against the manufacturer (Amgen), the wholesale distributor (Amerisourcebergen), and the retailers (CVS Corporation and ProCare Pharmacy). Fagan claimed that all the defendants were aware of the problem of diversion of drugs and had failed to take appropriate steps to secure the distribution chain." Potentially fatal, that old gray market market, nu? As luck would have it, the court decided that indeed Amerisourcebergen did have the ability to adequately control the sourcing of the drugs it sold and was responsible for maintaining supply chain integrity. The Patent Prospector : Here's an interesting comment on the use of patents, or lack thereof, to test the waters of IP protection necessity by the Patent Hawk: "...[C]omputer companies use litigation as a patent quality vetting process before settling. It's a common complaint how expensive patent litigation is, but it's quite cheap compared to the damages for infringement to the likes of Microsoft, IBM, or Apple." And Mr. Hawk doesn't have many kind words to share about Big Blue and their huge patent program, either. "IBM may get the most patents, and a tidy annuity for licensing, but that says more about the quality of its licensing program than it does about the value of its patents, many of which are the same quality which IBM and its corporate brethren rail about as junk, thereby demanding patent reform." More patents are not necessarily consistent with better quality. For more on this decidedly decisive issue, click on through to #1 . Nolan Chart : Is software worthy of the IP protection given to other creative endeavors? John Cozy doesn't think so and offers an argument supporting his point-of-view in his topical piece, Intellectual Property, Software, and Piracy . Cozy writes: Software manufacturers have foisted the impression on the public that software is intellectual property, but there are so many differences between the paradigms of intellectual property and software that only the naive could ever take such claims seriously. The paradigms for intellectual property are the non-fiction book, the novel, poetry, musical composition, dramatic scripts, sculpture, paintings, in short, fine art. And these range from the absolutely unique item, like a great painting, that only one person can own to multiple itemed works, like books, that many people can own copies of. As most of us know, software is not a one-time piece of work or art. Rather it is an algorithm to perform a sequence of steps to solve a given problem, which by rights really isn't a protected work under the letter/meaning of IP law. Of course, some would argue that point, and the USPTO is coming out with their say on the matter in an few short months after mulling over Bilski for a while, which should help decide the matter, once and for all. Until another group of Supremes are benched and decide to revisit the issue, that is. Bonus IP piece o' the day: EU Drops Qualcomm Antitrust Investigation at PCWorld.com . | |||
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| Liberia Can't Use Own Legal System Due To Copyright Fiasco | |||
| Written by Anthony Dale Kuhn | |||
| TechDirt.com : Copyright laws and intellectual property rights are stopping one small nation's newly polished legal system from seeing the light of day. Mike Masnick provides further details of this mysterious case in Liberian Laws Are A Secret Due To Copyright; Even The Gov't Doesn't Have Them . Masnick writes: The story is a bit convoluted, but apparently, Liberia hasn't really had a full copy of its laws, as they were mixed and matched in "incomplete sets" throughout different libraries. A professor at Cornell had begun a (free) project to compile the country's laws, but after he died, a group of lawyers in Liberia took over the project -- and were given $400,000 by the US Justice Department. The lawyers then "numbered, bound, and indexed" all of the recent laws, and claim that because of that, they now own the copyright on it. Apparently, Liberian copyright laws aren't very up-to-date and even the legal wizards who compiled and indexed the country's poorly distributed lawbooks don't understand that just because you put some papers in a book and organized them, doesn't mean you own the copyright to the content encased in that fresh, new leather binding. Ah, Libera... land of the free, you know. ABCNews : A company that owns a patent on "visual voicemail" is suing a number of major cell phone service providers for violating said technology without a license. Here are a few of the pertinent bits from Motorola, Research in Motion Sued Over Voicemail : Patent holding company Klausner Technologies Inc. on Monday said it's suing Motorola Inc. and the maker of BlackBerry smartphones for allegedly violating its patent for visual voicemail. Klausner said Motorola uses visual voicemail on its "Cliq" cell phones. Other Motorola phones with visual voicemail already are under license from Klausner. Visual voicemail lets callers see a list of voicemail messages and choose which ones to retrieve first. And wouldn't you know it, the cases have been filed in a Texas court, most likely of the Eastern variety, which will no doubt increase the likelihood that the case will come out in favor of the "patent holding company." Aren't copyrights supposed to be a way to provide protection for the person who makes the patentable item and not to create a secondary market for the selling and buying of patents like so many seedless pork bellies? ArsTechnica.com : Britain has become infamous for its implementation of "Big Brother-esque" programs to spy on its citizens in almost every conceivable manner and a recent royal announcement concerning the coming implementation of a similar set of laws to regulate content on the Interweb Tubes (and illegal downloading of the same) has got British costumers stocking up on Guy Fawkes masks for the coming pitchfork-and-torch riot on the steps of Parliament. Nate Anderson reports, "The Queen announced on Wednesday that her government would deliver Internet piracy legislation; today it arrived in the form of the massive Digital Economy bill meant to modernize the UK's approach to everything from copyrights to broadband to video game ratings to domain names. The bill contains no sanctions against suspected P2P file-swappers, but it introduces a "reserve power" that can be deployed whenever the Secretary of State feels that it's time to bust out the switch and administer some beatings." The "reserve power" clause in the legislation is a bit vague but Anderson interprets it to mean that the Secretary of State can decide at any time that "speed throttling or Internet disconnections are a good idea, he can implement them with a simple order. The government insists that such power will be introduced only against the 'most serious infringers' and only 'in the event the initial obligations do not prove as effective as expected.'" Yup, that is entirely too open for many who are fighting the good fight forJohn Bull and his massive collection of downloaded MP3s. Be sure to check out the remainder of Anderson's UK "Pirate Finder General" law innocuous now, could get ugly for more on this latest Orwellian nightmare in the making. MexicoWatch : A South-of-the-border intelligence gathering business has fallen afoul of one of the world's largest technology companies and will soon be forced to quit providing its service at the web address "latinintel.com." From the homepage of the soon-to-be-extinct company: From the beginning, we recognized that our business asset, the use of the word intel in our URL, could have brand value to Intel Corporation, and out of sensitivity to that recognition, we offered to sell it to them for a very modest price (when everyone around us was urging us to pitch for millions). We based our valuation on strictly technical costs of migration and a small brand equity we believe to have constructed in our LatinIntel identity. We used accepted accounting methods to calculate our brand equity. And from the very beginning and up until the present moment, Intel Corporation and their counsel maintained that intel was their exclusive property, and not our asset to sell. This gulf was never even remotely bridged during the past two-plus years. In fact, roughly a year ago we demanded that they discontinue their campaign of legal harassment and cease the emails and phone calls. When we issued this demand, one of their lawyers promptly called us up on the phone. And because Mexico Watch can not pay to farm a full team of high-powered lawyers to defend its inclusion of the work "intel" in its web URL address, the companywill likely soon shut itself down. Peep all the preposterousness in INTEL CORPORATION SUES OUR COMPANY! Cloud Computing Journal : Aeronautical wizard Burt Rutan has successfully captured a key piece of intellectual property to use in his on-going private bid to launch viable commercial space vehicles. From a recent news release: Christie, Parker & Hale LLP (CPH), one of Southern California’s leading intellectual property law firms, announced today that the firm was instrumental in obtaining another major patent for its client Mojave Aerospace Ventures, LLC of Seattle, Washington, and inventor Burt Rutan. U.S. Pat. No. 7,540,145 pertains to a hybrid rocket system where a rocket is secured and mounted to a spacecraft fuselage or associated structure, and to an integrated rocket motor construction with improved reliability and safety. The patented technology will allow Rutan to better pursue his dreams of commercial space travel because it facilitates: "easy replacement of the motor, allows for use of motors of different lengths, and reduces the number of possible leak paths." Constantine "Gus" Marantidis, CPH partner, said, "The invention is one of the important technologies that makes SpaceShipOne and its derivatives viable vehicles for commercial space travel[.]" Christie, Parker & Hale Obtains an Important Patent for a Burt Rutan Engineered Hybrid Rocket System for the win. Bonus IP piece o' the day: Betwa Sharma at Rediff.com presents India, US ink pacts on Intellectual Property Rights . | |||
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| Half Million Dollars Stolen from USPTO Customer Accounts | |||
| Written by Anthony Dale Kuhn | |||
| Washington Examiner.com : A minister and ex-USPTO employee have been found guilty of stealing over $500K from dormant patent holder accounts, according to a recent piece by Freeman Klopott. More background details from Minister gets prison time for stealing $500K from U.S. patent office : Karen L. Parish worked at the patent office until 2005. By the time she left, she and Michael Reid had used Reid's company, Redeemed Music House LLC, to funnel $534,338 from dormant patent office accounts used by businesses to cover patent application costs, the two admitted earlier this year. Reid is an ordained minister who serves as the music director at Soul Factory in Forestville and the Ark of Safety Christian Church in Upper Marlboro. He and Parish met while attending a church in Washington in 1990, Parish wrote in a sworn statement filed in Alexandria's federal court. Before their daughter was born in 1994, their relationship soured and the two split. Eventually, they became friends again. Parish got the idea to rob the dormant patent office accounts after she found herself in serious debt after a string of poor financial decisions and enlisted the help of Reid to funnel the funds into her coffers. "'It was done quite easy since I didn't need a lot of verification,' Parish wrote. She says she used the cash to pay off bills and cover expenses for her daughter." So, this begs the question: who's watching the watchers? ArsTechnica.com : MPAA frontman Dan Glickman has somehow come down on the side of getting on with ACTA while calling for an end of the sideshow distractions surrounding the needlessly secretive cloaking of the act's contents. Nate Anderson reports, "MPAA head Dan Glickman sent a letter yesterday to both Senator Patrick Leahy (D-VT) and to US Trade Representative Ron Kirk in which he called for a serious US push to pass the secretive Anti-Counterfeiting Trade Agreement. That's certainly expected—ACTA contains a host of goodies for Hollywood and the recording industry—but what came as a surprise was Glickman's irritation at various ACTA 'protests' which create "'apprehension over the Agreement's substance.'" Glickman's statement is not without its critics, though, as some decry his weak-kneed protest as "...a roundabout way of asking negotiators to ignore the cries of a clamoring public and simply get on with the business of cobbling together a Hollywood-friendly trade agreement." To learn more about the MPAA's weak effort to get on with the business of passing ACTA while calling for reduced attention on irritating protesters, be sure to read Anderson's Shocker: Ars, Hollywood agree on need for ACTA openness . Blawgdog.com : The People's Republic of China have some thoughts to share about what's in store for intellectual property rights in the world's most populous country, and their goals are quite lofty. Here's a snippet of their plans for increased global IP domination: China will rank among the advanced countries of the world in terms of the annual number of patents for inventions granted to the domestic applicants, while the number of overseas patent applications filed by Chinese applicants should greatly increase. A number of world-famous brands will emerge. The proportion of the GDP accounted for by the value of core copyright industries will greatly increase. China should own the rights to a number of high-quality new varieties of plants and high-level layout-designs of integrated circuits. Trade secrets, geographical indications, genetic resources, traditional knowledge as well as folklores will be effectively protected and reasonably utilized. Quite a reach from the current state of Chinese IP, wouldn't you say? There's plenty more details available for the constant reader to peruse in The Outline of the National IP Strategy , which is an English translation of the original Chinese document released in June 2008. The Times of India : Private dicks will be engaged to police up merchandise for trademark violations at the 2010 Commonwealth Games according to a topical piece, aptly titled Detectives may be used during Commonwealth Games . Here's how it's going to go: "The spies will garner information from around the national capital region where small industrial units and individuals are said to indulge in manufacturing of duplicate and fake logos, symbols, sporting gear, apparels and other goods bearing official holograms and symbols." After gathering enough evidence to support the claim of trademark infringement, the hammer's gonna fall hard and fast. "The detectives, after deploying techniques of detection, identification, curtailment and prevention take help of the police to conduct searches at unauthorised premises resulting into arrests and seizures." Whether or not this precautionary effort will be fruitful in its bid to reduce illegal production of fake trademarked goods remains to be seen, but it is a step in the right direction, nu? WashingtonPost.com : Fake drugs are a huge problem for trademark-holding Big Pharma companies and put innocent patients at risk for complications and sickness caused by inferior or tainted products. One recent pan-global operation aimed to cut off the supply of fake drugs as reported by Ylan Q. Mui in Crackdown targets counterfeit drugs . "In highly orchestrated raids across five continents this week, Interpol officers in Europe, drug agents in the United States and task forces from Sweden to Singapore hunted down counterfeit prescription drugs in an effort to stem a rapidly growing criminal business preying on financially pressed consumers looking for bargains. The operation, code-named Pangea, was disclosed Friday morning in an effort to put fraudulent businesses on notice that police around the world are fighting back against what has become a $28 million industry in the United States alone." This is not the first effort to include the US in the fight against fraudulent drugs. "In 2004, ICE began targeting drug counterfeiters under what it called Operation Apothecary. Since then, it has launched a National Intellectual Property Rights Coordination Center to help root out the problem, along with other forms of counterfeiting. The crackdowns on fake drugs have expanded into a veritable global surveillance system encompassing half a dozen U.S. agencies and 24 countries for a week of intense enforcement. In the United States, task forces descended on seven major mail hubs this week, including in San Francisco, Miami and Cincinnati, and inspected 7,088 packages." Bonus IP piece o' the day: A related piece from PressZoom.com : National Intellectual Property Rights Coordination Center partners take part in international week of action on illegal pharmaceuticals . | |||
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| Chinese Authors Assert IP Rights Against Google's Book-scanning Efforts | |||
| Written by Anthony Dale Kuhn | |||
| PCWorld.com : China continues to asserts its intellectual property rights; this time Chinese authors are up in arms (figuratively, not literally!) over Google's book-scanning program and are working to come to some financially-beneficial arrangement with the Mountain View, California-based search engine giant. Owen Fletcher provides more details of this Sino-Google battle royale in his topical piece, Chinese Authors Turn up Heat on Google Over Book Scanning . He writes: "The Chinese Authors Society demanded that Google present a resolution plan by the end of the year and quickly handle compensation for Chinese authors whose books the U.S. company scanned without permission. A local copyright protection group, co-founded by the authors group, has said it found at least 17,000 Chinese works included in Google's scanning plan." This is the second headline-catching move by the Chinese in recent days to bring attention to the US' troubling lack of respect for Chinese IP while at the same time berating the country over it's lax IPR measures. Sounds a little like the pot calling the kettle black, if you ask me. What do you think, dear constant reader? Wired.com : Victoria Espinel is on her way to a full Senate confirmation after a smooth-sailing trip through the Senate Judiciary Committee. David Kravets reports: No Senate vote date was set immediately for a nominee who was applauded by both the “copyleft” and the “copyright.” Espinel is expected to have a key role for the United States as it and several other countries secretly negotiate an intellectual property treaty, known as the Anti-Counterfeiting Trade Agreement. That treaty could fundamentally alter copyright law to require ISPs to adopt “graduated response” policies to terminate internet service of repeat, copyright offenders. Nice pun there, by the way, Mr. Kravets. For the rest of the details on Ms. Espinel's background and some of her potential duties as the "IP Czar," be sure to read the rest of Kravets' Copyright Czar Vote Heads to Full Senate . A manufacturer of an HIV and drug detection kit has settled with a rival company according to a recent AP news wire piece. "OraSure Technologies Inc., which makes diagnostic kits to detect HIV and drug use, said Thursday it will pay Inverness Medical $3 million to settle a patent dispute over HIV tests. Under the deal, OraSure settles the lawsuit filed against the company by Inverness and Church & Dwight Co., with Inverness receiving $3 million in cash. The companies are also granting each other distribution rights to certain products, including HIV hepatitis C tests, and flu tests." This is a somewhat standard outcome: a fine paid by the party accused of filching IP from another company and then a cross-licensing agreement to help both parties make more moola in the future. Good times! Check out OraSure settles HIV test patent lawsuit for the rest of the story. IPWatchdog.com : One IP expert weighs in on the ACLU Gene Patent fight and calls for action from those who want to keeps gene patents on the books. Article author Gene Quinn writes: "If anti-patent activists are organizing and the ACLU, with its seemingly limitless budget to pursue their own agenda, is becoming involved in patent matters then it is time for patent advocates to unite and not allow a challenge against one part of the industry to destroy that industry and create precedent that can and will be later used against all of us. While an amicus brief would be extremely helpful, at the very least write your Representatives, Senators and Executive Branch Officials. This is an issue of great importance to the US patent system, and at the very least innovators need to stand together and come out strong publicly. Now is not the time to sit on the sidelines. Too much is at stake." Quinn is quite worried that if gene patents are overturned, it might mean the end of patents as we know it. Which is a stretch of the imagination, for sure. "...[I]f this case is not on your radar screen it needs to be on your radar screen because this is only the tip of the iceberg. If the arguments of the ACLU prevail there is no reason those same arguments couldn’t be used against any patent owner. All patents are exclusive rights by nature, so if gene patents violate the First Amendment then all patents will violate the First Amendment." Looks like someone needs a little lesson in logic methinks! The two conclusions are not tied together: one could eliminate genetic patents without bringing down the entire US patent system. What a bunch of balderdash and poppycock. You can read the rest of this bloviating blog entry in Quinn's Call to Action: Amici Briefs in ACLU Gene Patent Challenge . TechDirt.com : Copyright minimalist and maximalists are used to throwing around large numbers in an attempt to sway public opinion to lean their way, and Mike Masnick's recent writing on the subject, We See Your 'Copyright Contributes $1.5 Trillion' And Raise You 'Fair Use Contributes $2.2 Trillion' , shows just how far awry things have gone. He writes, "The copyright industry lobbyists absolutely love to throw around the bogus and debunked stat that copyright contributes $1.52 trillion to the economy. That number is derived by taking any business that kinda sorta maybe touches copyright (including things like furniture and jewelry) and then assuming that all of the revenue they make is entirely due to copyright. Yes, that's ridiculous." And then he takes the other side to task for their similar numerical boner: " Businesses dependent upon exceptions to copyright contribute $2.2 trillion to the U.S. economy. They are responsible for one in eight jobs, for a total payroll of $1.2 trillion in 2006. Fair use is serious business; it is the glue that holds the Internet and new technology together. It is worth protecting. This is fantastic." But not 'fantastic' in the "gee, that's swell' sense of the word, but rather, 'fantastic' as in "unbelievable!" And this just proves that old saying: "There are three kinds of lies: lies, damn lies, and statistics." Bonus IP piece o' the day: News Blaze presents PowerReviews Granted Patent for Easy-to-Use Product Reviews . hinese Authors Assert IP Rights Against Google's Book-scanning Efforts | |||
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| The United Arab Emirates Cracks Down On Pirated Books | |||
| Written by Anthony Dale Kuhn | |||
| Los Angeles Times : The promised increase in intellectual property protection in the United Arab Emirates is bearing some fruit, it would seem. Alexandra Sandels in Beirut reports on this favorable development: Fearing that the United Arab Emirates might turn into a haven for intellectual property scofflaws, authorities are implementing tough new measures to keep pirated book traders at bay. Over the last months, the UAE's Ministry of Economy along with police forces in Dubai and Sharjah and the Arabian Anti-Piracy Alliance have carried out a series of raids suspected of book piracy across the country. The raids have yielded plenty of pirated books and also gathered a few 'big fish' book traders who specialize in fraudulent printed products for a bit of jail time. The move is just one step in a larger program to crack down on IP theft and aims to bring more business to the UAE. "Hopes are now that the UAE's new zero-tolerance policy on book piracy will promote its image as a place for 'safe business' and help attract more international publishing houses to open up shop in the country." Check out the rest of the story in Sandels' UNITED ARAB EMIRATES: Authorities target book piracy in raids across the country . Stuff.co.nz : Protecting your company's valuable intellectual property extends beyond merely trademarking or patenting it, you also need to protect it by making sure that the failure of a venture doesn't take the IP with it. From New Zealand come more details on separating IP and operations to save one from the loss of the other. Guy Burgess explains the situation in more detail: "...[S]oftware owners can mitigate this risk by separating the ownership of IP from day-to-day trading risks, so that one legal entity is responsible for commercial trading with the software, while a separate legal entity owns the IP. The aim is to ensure that if the trading entity becomes insolvent, the IP is protected by virtue of it being owned by a separate legal entity, and therefore out of reach of a claim against the trading entity." This is a very usual business practice, but one that seems to be off the radar for software programming types. Read more on this issue, including a sample scenario that helps clarify how the process works in Burgess' complete piece, Firewalling your intellectual property . Time.com : Could the much-expected SCOTUS decision on Bilski result in the wholesale elimination of a class of patents? Adi Narayan provides some insights into this topical question in his recent article, Supreme Court: When Do Ideas Deserve Patents? Ideas are patentable "as long as they are novel, not obvious and not simply abstract ideas" but the Supreme Court isn't so sure the Bilski patent is not obvious or simply a mathematical equation, which by its very nature is self-evident and factual. "The Supreme Court is expected to announce its decision sometime in the spring of 2010. Till then, the machine-or-transformation test is the law of the land and the patent office is rejecting applications based on the test." This particular type of patent denial has a name: "'I call them Bilski rejections,' says Keith McWha, a New York City–based patent attorney." Wired.com : Pricey copyright fees are poised to break the back of on-line music service providers and there's little relief in sight according to a timely piece by Eliot Van Buskirk. He writes, "MySpace, rumored to be on the verge of purchasing the free music streaming site imeem, is struggling to keep up with its own payments to music copyright holders, according to a top News Corp executive — a problem that has plagued every other licensed free music service. The digital music doubters could be right with the contention that advertising revenue can’t cover the costs of licensing music. Meanwhile, illegitimate free music sources continue to proliferate, rendering paid music subscriptions irrelevant for most music fans." Even the likes of mighty market mavens such as Google are sure to start feeling the pinch. "Google added play buttons to its music search results that allow anyone to listen to a song once for free through Lala or MySpace’s iLike service, after which they have to pay for it. If Google can’t figure out a way to support something with ads, it arguably cannot be done." So it's all about ads or revenue and not about getting the music into the hands of the fans, is it? Well, those same fans can download all the perfect digital copies they want and there's little chance of the music industry stopping the flood. Why not embrace it like some forward-looking artists are already doing? Music: Too Expensive to Be Free, Too Free to Be Expensive for the win. Patently-O : And wouldn't you know it, Bilski is already taking its toll on some patents. Take for example, the curious case of H&R Block v. Jackson Hewitt . "E.D. Texas Magistrate Judge Love has recommended that H&R Block's advance-tax-refund patents be held invalid for failing to claim patentable subject matter under Bilski. The claims in question are all directed toward either a "computerized system" or "computer-implemented method." Quoting Nuijten, the court first held that Bilski controls both system and method claims – since a "court should not be 'overly concerned with pigeonholing subject matter once the court assures itself that some category has been satisfied.'" And with that bit of background under your belt, you, the gentle reader can tackle the *huge* number of comments that are much more interesting than the rather dry text that comprises our featured piece. I'm quite serious: you have to check out the very lively discussions in this post's comment section. Do so by visiting Patent on Tax Refund System Deemed Invalid under Section 101 . Bonus IP piece o' the day: Market Watch 's John Spence presents Research Affiliates wins patent for indexing strategy . | |||
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| Chinese Font Creator Wins IP Case Against Microsoft | |||
| Written by Anthony Dale Kuhn | |||
| PC World : The Chinese are often accused of illegal use of Western patents, but now the shoe appears to be on the other foot and one wonders if it doesn't pinch just a bit. From China Rules Microsoft Violated Intellectual Property Rights , Owen Fletcher reports on this unusual "turn-around-is-fair-play" situation: A Beijing court has ruled that Microsoft violated a Chinese company's intellectual property rights in a case over fonts used in past Windows operating systems, state media said Tuesday. The Beijing Number One Intermediate People's Court this week ordered Microsoft to stop selling versions of Windows that use the Chinese fonts, state broadcaster CCTV said. Microsoft plans to appeal the case, a company representative said in a statement. Why, of course Microsoft plans to appeal! But the owner of the Chinese language fonts in question has a pretty strong case that Microsoft overstepped the terms of their previous agreement. "Microsoft originally licensed Zhongyi's intellectual property more than a decade ago for use in the Chinese version of Windows 95, according to Zhongyi. Zhongyi argues that agreement applied only to Windows 95, but that Microsoft continued to use the intellectual property from Windows 98 to Windows XP." And while Microsoft admitted that the real meat of the matter is over the length of the terms of the agreement, they aren't going gently into that good night. JakartaGlobe : IP protection just got a large and much-needed boost in Jakarta after a long battle. In his topical piece, Intellectual Property Revamp Holds Much Promise , Brett McGuire reports, "After almost a year’s delay, the Indonesian government’s long-anticipated overhaul of the intellectual property laws is back on track. Later this month, Andy Sommeng, the director general of intellectual property rights, will finalize his proposed changes to the Trademark Law before shifting his attention to the Patent, Design and Copyright laws." The changes include a number of increased penalties for IP infractions, longer jail stays for those accused of running pirating operations, and a quicker and more efficient patent process to help businesses get their products to market in a timely fashion. "As well as a series of public outreach programs conducted by the team, Ansori Sinungan, who is responsible for coordinating the team, is planning to bring the police, public prosecutors, IP office and customs together in January to discuss how the four agencies can better coordinate." A good sounding plan that should help dispel the reputation of Indonesia as "...the Wild West of the IP world." BusinessDay : In South Africa more and more attention is being given to protecting intellectual property and an upcoming conference hopes to address the matter in more detail. Lesley Stones report on the efforts of the Free Market Foundation to bring more awareness to IPR in Africa: "The foundation is staging an intellectual property rights conference at Fourways, near Johannesburg this week. Director Eustace Davie said yesterday it was 'critical' that people in all areas of the government understood the importance of intellectual property rights, and made sound policy decisions for the good of the economy." The featured attendee's to the conference will include "Microsoft’s global head of anti-piracy, Sergey Alpatov. Local speakers will include Education Minister Naledi Pandor, Mamphela Ramphele of the Technology Innovation Agency and the Free Market Foundation’s Leon Louw" with a keynote speech by Microsoft’s Africa chairman, Cheick Diarra, who "has worked on the US space programme, including the National Aeronautics and Space Administration’s Magellan mission to Venus, the Galileo mission to Jupiter and the Mars Observer mission[.]" Check out the rest of the story about this important South African IPR event in Plea to protect intellectual property rights . PatentBaristas.com : Drugs have not always held the same strong patent protections as the currently enjoy and a recent book review by Stephen Albainy-Jenei exposes the history of patenting medicines and how special interests have shaped modern laws protecting pharmaceutical innovations. By way of introduction to the piece, Albainy-Jenei writes, "In Intellectual Property Rights and the Life Science Industries: Past, Present and Future, Graham Dutfield presents a perspective on how we got to where we are in life sciences patenting — and where we are likely headed – through the co-evolution of the patent system and the life science industries since the mid-19th century. This book follows the origins of the pharmaceutical industries in advances in synthetic chemistry and in natural products research and how these approaches to drug discovery and business have shaped patent law." You can check out the book here and read the rest of the review, entitled Book Review Monday: Intellectual Property Rights and the Life Science ndustries, here . Closing thoughts: "We highly recommend you read this thought-provoking treatise on the pharmaceutical-patent collaborative." What more could you need? PC World : Microsoft has come to an agreement with an ex-employee accused of "fraud, misappropriation of trade secrets and breach of contract." According to Nancy Gohring's Microsoft Settles Employee Spying Case , the misunderstandings in question surrounded a technology that the employee created to help bypass software authentication protections in certain cases. "The deal closes an unusual case in which Microsoft said that Mullor continued on as CEO of a company called Ancora while working at Microsoft. While Mullor was employed at Microsoft, Ancora accused several computer makers including Dell, Hewlett-Packard and Toshiba of infringing on a patent. The PC makers asked Microsoft to defend them since the technology was provided by Microsoft." Mullor neglected to tell Microsoft that he was still working for Ancora while employed by the computer software giant and therefor was in breach of contract. He is also accused of "...stealing confidential documents and failing to disclose his intentions about the patent infringement suit." The two have since parted ways and all disputes between the parties have been resolved. Bonus IP piece o' the day: From ArsTechnica.com , Viacom's top lawyer: suing P2P users "felt like terrorism" by Nate Anderson. | |||
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| US Businesses In China Appeal To Obama For Increased IP Protection | |||
| Written by Anthony Dale Kuhn | |||
| PC World.com : As President Obama continues his tour around Asia, a group of concerned US businesses in China are lobbying for additional help in protecting their intellectual property from unscrupulous Sino-thieves. Owen Fletcher from the IDG News Service reports: A U.S. business association in China looks forward to working with U.S. President Barack Obama on increased protection of intellectual property rights in the country, it said Monday. The American Chamber of Commerce in China also wants to work with the Obama Administration on clearing trade barriers and promoting clean energy sources, it said in a statement one day after the president arrived on his first trip to China. Pirated video games, DVDs and computer software are widely sold on streets and in markets in China, and U.S. officials have long pressed China to improve enforcement of intellectual property laws. Pirated versions of Windows 7, for instance, were on sale in a Beijing bazaar weeks before the real program went on sale last month. Help is not long in coming, as top concerned officials stateside are on the case. "The area is one that the U.S. is reviewing as it considers recognizing China as a market economy, said U.S. Commerce Secretary Gary Locke at a speech to the business group in Beijing." I find it hard to believe that we don't recognize China as being a market economy, even if they claim to be "Communist," as the Chinese have capitalism all figured out. Read Fletcher's piece, US Companies in China Ask Obama for Help on Piracy , for the rest of the story. Earthtimes.org : The nation’s largest CFO firm, serving entrepreneurial, growth and mid-market companies, shares a cautionary tale with the constant reader that should provoke a rash of hurried IP protection after the message sinks in. In a recent press release, Jerry L. Mills explains how his company, B2B CFO, spent large quantities of cash and time to "fight off blatant plagiarism of copyrighted content as well as cases of intellectual property rights infringement and theft." He writes, "In June 2009, searches for key phrases unique to B2B CFO’s Web site content resulted in a stunning discovery of dozens of other businesses plagiarizing the company’s content word-for-word on their Web sites. The problem was so widespread that this year alone B2B CFO has encountered more than 40 separate cases of plagiarism, including several competitors using B2B CFO’s registered trademark." Mills appointed a copyright infringement specialist to seek out the evil-doers and send them cease-and-desist letters before calling in the legal heavies to deal the coup de grace. One last pertinent suggestion for the safe-keeping of your IP: " Mills advises fellow business owners to take proper measures to protect the intellectual property of their Companies. ' Protect your rights by filing for trademarks, copyrights, and patents, and by having strict confidentiality agreements,' said Mills. 'But know that regardless of your efforts, some will disregard these rights and steal your intellectual property. Having proper documentation and protection upfront might help your employees and legal team with the tools to protect your intellectual property.'" More in ‘Protect Your Intellectual Property, or Prepare to Have It Stolen’ ZeroPaid : Brazil and Pakistan, among other nations, are lobbying the UN to create a tiered system of intellectual property protection laws that would help struggling/developing nations gently move towards increased penalties and enforcement. Jared reports: "...both Brazil and Pakistan submitted proposals to a meeting of the WIPO’s Advisory Committee on Enforcement in which they too said that piracy enforcement can’t be a 'one size fits all approach,' and that some countries have a different economic reality." This suggests that some countries believe that intellectual property theft is a relative thing. What happens when the country finally breaks out of its third-world malaise and into the "real" world of global markets and capitalism and finds itself wishing it had stronger IP protections? Can't have it both ways, or can you? Find out more on the theory of relativity, IP-style, in UN: Don’t Jail Illegal File-Sharers . Los Angeles Times : The US Chamber of Commerce and the satirical protest group known as "The Yes Men" have been duking it out in recent weeks over the COC's stance on global climate change. In an anonymous editorial piece entitled Under the chamber's cyber-skin , the COC is portrayed as having thin skin and going overboard with their lawsuit against the Yes Men brought on by their parody imitation of the Chamber at the National Press Club. From the piece: The chamber needs to develop thicker skin. Rather than confusing people about the chamber's views on global warming, the "commercial identity theft" at the heart of the Yes Men's stunt helped call attention to them. That's what any good parody does. The aim of the bogus news conference and website wasn't to gain a competitive advantage over the chamber by damaging its brand or deluding the public, which trademark and cybersquatting laws were designed to guard against. It was to raise the heat on the chamber to change its position on cap-and-trade legislation. Granted, the troupe had a movie to promote, but that's speech too -- in the Michael Moore, corporate-America-as-villain vein. It's a message that the chamber may not like, but one that the Yes Men should be able to deliver without having to defend themselves in court. Surely there are better ways to spend taxpayer dollars than to create frivolous lawsuits against parody pranksters? Like maybe coming up with a more reasonable and logical stance on global climate change and the way it relates to US business interests abroad? The Chamber would probably have been among the people that thought Jonathan Swift really did intend to solve Ireland's food shortage woes by eating up little orphan children, too! ArsTechnica.com : So, what exactly are the contents of the agreement between AMD and Intel? Good question! Here's a brief summary of what the two computer chip giants have sworn to abide by in sickness and health provided by none other than Jon Stockes in his topical piece, Now that AMD and Intel have settled, the fight really begins : "The first thing that the two parties have agreed on is that Intel won't engage in the sorts of anticompetitive practices that were outlined in AMD's suit and in the NYC Attorney General's suit of the week before. The lawsuits and Friday's settlement go into specifics of the different types of proscribed behavior, but they all boil down to accusations of Intel strong-arming OEMs and ODMs into either not using AMD CPUs in their systems, or into severely handicapping their AMD-based products by launching them late or placing hard limits on the number of them that are shipped." There are some who would trust Intel to begin playing nicely with one hand on their pistol but Intel is promising to be good in a kind of creepy, too insistent, way: "Intel is double-plus insistent that the only new thing that this agreement brings to the table are the compliance and arbitration mechanisms, which are, of course, in place to ensure that Intel doesn't do what it hasn't been doing, and thus they don't really mean anything." A-ha! It's true. Will Intel and AMD continue with their marriage of convenience or will there be late-night calls to "The Man" to come and drag away the dominant partner with claims of "spousal abuse?" Bonus IP piece o' the day: No Climate Deal in Copenhagen Good for Green Patent Rights by Gene Quinn at IPWatchdog.com . | |||
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| Apple Prevails Over Rotten Clones | |||
| Written by Anthony Dale Kuhn | |||
| CNET News : Apple appears to have won its bid to put the clamps on iClone computers. Natalie Weinstein reports on this much-anticipated ruling in her topical article, Judge rules for Apple in Psystar case . She writes: A judge has ruled in Apple's favor in its copyright-infringement case against Psystar, which has been selling Mac clones running Mac OS X. U.S. District Court Judge William Alsup on Friday granted Apple's request for a summary judgment, while denying Psystar's counterclaim. "In sum, Psystar has violated Apple's exclusive reproduction right, distribution right, and right to create derivative works," Alsup wrote in the ruling (PDF), which was posted by legal site Groklaw.net. But that's not the end of Apple's pursuit of Psystar as there are a number of legal infractions in the wings. "There are other claims Apple has made that could still go to trial, including breach of contract, trademark infringement, and trademark dilution. A hearing to determine remedies is set for December 14. The trial has been scheduled to begin in January." ArsTechnica.com : Verizon is gingerly getting into the cease-and-desist business as the RIAA ramps up its battle against illegal file downloads. Nate Anderson reports on this rather insignificant change in policy for the ISP: If you're a copyright owner who has gone to the trouble and expense of tracking down online copyright infringers, don't send warning letters to Verizon without striking a deal first; Verizon simply chucks them in the bin. Do a deal with the "big V" and Verizon is willing to forward warning letters on to its subscribers, but that's it. No customer information is exchanged and no sanctions are implemented—and Verizon has been handling the issue this way for years. That's why today's report that the RIAA has signed a deal with Verizon to forward notices breaks no real ground, though the arrangement certainly does expand the scope of Verizon's letter-forwarding. Could this be a first step by Verizon to play nicely with copyright owners? Anderson thinks it probably isn't. "What Verizon is getting out of the RIAA deal isn't clear. A Verizon source tells Ars that the deal, if it has in fact been signed, would likely be a 90-day trial run but would also just be "more of the same" for the company. And don't even think about calling it "graduated response"—there are no sanctions, and the company is keen to point out that it is not in the business of enforcement." For more on this toothless tiger, be sure to check out Anderson's Verizon to forward RIAA warning letters (but that's all) . The Wall Street Journal : Bruce W. Sanford and Bruce D. Brown take a closer look at the current situation of Google's legal wranglings in their recent piece, Google and the Copyright Wars . Sanford and Brown set the stage for you, the gentle reader: "On Monday, a federal court in Manhattan granted yet another extension to Google and a group of authors and publishers as they try to reach a settlement in the landmark digital books case. They are expected to submit a revised proposal today. But whatever the ultimate agreement, this case is a giant missed opportunity." That opportunity is all about the ability of search engines to make copies of documents on the web for indexing purposes and whether or not it is legal to do so. Google likes to think of itself as a non-threatening purveyor of public information to help polish its image as a do-er of no evil. "Google has consistently compared itself to the neighborhood library. When it was sued by Agence France Presse for copyright violations in 2005—a case that also settled before any judge ruled on the fair use issue—Google described itself 'as important to the web as a card catalog is to a library.' A public library, Google said in Agence France Presse v. Google Inc., 'would be of limited use without an index or some other means to organize and find particular volumes of interest.'" And seeing as the "...copyright code allows public libraries to copy texts as long as there is no 'direct or indirect commercial advantage,'" why can't Google and other similar businesses do so? Ah! That is the question, indeed. In other Google-related news, some retailers are concerned about the search engine giant's new and improved trademark policy and the likelihood that it means higher costs for powerhouse companies. Kevin Newcomb explains Google's new rules: "Under the new trademark policy, advertisers can use trademarks they don't own under certain circumstances, such as if they are reselling a product or discussing the product on an informational site. Advertisers that are using trademarked terms includes affiliates of a brand, who may or may not have permission from the trademark owner, and sellers of gray-market and black-market goods, who usually don't have permission." So why are the brand holders nervous about increased prices? Purchasing Adwords from Google just got more expensive under the new trademark policy! "The impact of other advertisers bidding on a trademark most often comes in the form of increased costs to the trademark owner, who has more competition on his trademarked terms, which drives up bid prices. There's also the issue of missed revenue, where a searcher will buy from another site advertising on a trademarked keyword, and not from the trademark owner's site." Read more on this issue of growing concern for the owner's of popular trademarked goods in Google Trademark Policy Worries Holiday Advertisers at Clickz.com . PatentBaristas.com : USPTO chief Kappos has dismissed a key lawsuit after a change in the organization's policies that left the lawsuit with no basis for continuation. Stephen Albainy-Jenei writes: In the the Tafas v. Kappos lawsuit, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office David Kappos and the U.S. Patent and Trademark Office filed a joint motion for dismissal of the appeal and to vacate the judgment of the district court below because the USPTO has rescinded the rules that formed the basis of the litigation. The Federal Circuit agreed that the appeal is now moot and dismissal of the appeal is not only appropriate, but required. Under Secretary Kappos officially rescinded the highly hated regulations (Final Rules; 72 Federal Register 161 at 46716)that would have limited patented claims and continuations — with an emphasis on the fact that they were proposed by the previous administration. The regulations were published in the Federal Register in August 2007, but were enjoined and never came into effect. The Tafas lawsuit did uncover a few other tidbits, like this one: "The Federal Circuit’s decision does not address the fact noted in Tafas’ papers that Office of Management and Budget (OMB) had essentially killed the rules anyway but that’s another matter." It's good to have lawsuits questioning the legality of policy changes, sure, but how much did this cost the taxpayers only to have the whole thing end up being moot? Find out the rest of the details of this dismissal in Court Dismisses Tafas Suit Against Rules; Leaves Lower Court Ruling Intact . Bonus IP piece o' the day: Jenny Sanford explains trademarking name days after affair admission by Logan Smith at WISTV.com . | |||
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| More Commentary On in Bilski SCOTUS Deliberations | |||
| Written by Anthony Dale Kuhn | |||
| CBSNews Opinion : Evan Schuman, the editor of StorefrontBacktalk.com, a site that tracks retail technology, e-commerce and security issues, suggests that the outcome of the SCOTUS deliberations on the validity of method, and possibly software, patents will be a favorable reversal for innovative businesses. Schuman writes: Relief might be in sight for retailers afraid that somebody somewhere has secured a patent covering some mundane process they regularly do in the course of selling stuff - be it the way customers swipe payment cards, their methods for collecting loyalty program data or the functioning of their Web site's shopping cart feature. The U.S. Supreme Court on Nov. 9 heard arguments and there were indications that it might snuff out process patents altogether. Process patents, also called business method patents, have been derided as frivolous because, some critics charge, patent applications are created after the process has been routinely performed for many companies for years but the "inventor" is merely the first to try getting a patent on the process. Seven e-tailers, including J.C. Penny, Talbots, L.L. Bean and Overstock.com, are urging the high court to clamp down on patent violation lawsuits by so-called "patent trolls," which are often shell companies claiming rights to vague business-method patents. The retailers note they routinely settle the patent infringement claims related to their Web sites rather than spend millions on litigation. Indeed, even the justices find it hard to imagine that the Constitution of the Founding Fathers would have embraced the idea that a patent claiming ownership of the equation "2+2=4" is a good thing. Justice Stephen Breyer was questioning the very premise of the process patent when used in an overly broad manner. "Every successful businessman typically has something. His firm wouldn't be successful if he didn't have anything that others didn't have. He thinks of a new way to organize. He thinks of a new thing to say on the telephone. He thinks of something. That's how he made his money. It's new, too, and it's useful, made him a fortune. And your view would be anything that helps any businessman succeed is patentable because we reduce it to a number of steps, explain it in general terms, file our application, granted?" Breyer asked. "Well then, if that were so, we go back to the original purpose of the Constitution," Breyer said. "Do you think that the framers would have wanted to require anyone successful in this great, vast, new continent because he thinks of something new to have had to run to Washington and to force any possible competitor to do a search and then stop the wheels of progress unless they get permission? Is that a plausible view of the patent clause?" No, indeed, method and business practice patents do not appear to be in line with the original intent of the law and it's about time the practice of giving patents to unpatentable ideas and claims ended, don't you agree? Be sure to check out Schuman's Clock Winding Down On Patent Scams? for the rest of the story. Gerson Lerhman Group : In another take on what the outcome of in Bilski means for businesses, an anonymous "GLG Expert Contributor" offers advice to patent-holding businesses that a re-evaluation of their portfolio holdings might be in order if method patents get the ax. He, or she, writes: Whether the Court affirms the "machine or transformation" requirement for methods, or they establish a new rule limiting patents to technological advances in the natural sciences, or they send the case back to the Court of Appeals, it seems clear that method patents will require some structural component, such as reciting the computer hardware, etc., to be valid and enforceable. Patent owners who have obtained these more conservative types of patents may find that their portfolios require very little correction. However, patent portfolios that contain patents having highly abstracted patent claim language, will probably want to consider whether it make sense to take these patents back to the Patent Office for reexamination or reissue proceedings to ensure their validity, maintain any existing licensing payments, and to avoid any antitrust liability from enforcing a questionable patent. Looks like there will be some "watchful waiting" going on until the SCOTUS justices make their judgment. Read more details in Will Bilski Require Patent Holders to Re-evaluate Their Portfolios? The Patent Prospector : The Intel/AMD settlement has gotten some parties all wound up, and the Patent Hawk surely counts himself among that unhappy number. In his recent blog post, Mr Hawk lets fly with bile and punditry. "The corporate ass-kisser known as the U.S. government, renowned in recent months for showering banks and mega-corporations with bail-out money while leaving the unemployed struggling to cope with the aftermath of unregulated corporate greed, has made no great shakes to dampen Intel's anti-competitive exuberance. The FTC may look into complaints by Nvidia, the graphics chip maker, that "Intel has exerted its power to limit innovation," according to David Shannon, Nvidia's general counsel. Nvidia contends that Intel makes connecting rival chips to Intel microprocessors difficult." On the other hand, the Hawk is quite happy with Mr. "New York AG" Cuomo's decision to deride Intel's monopolistic actions. "In New York, feisty attorney general Andrew Cuomo filed an antitrust case against Intel last week. 'Rather than compete fairly, Intel used bribery and coercion to maintain a stranglehold on the market,' asserted Mr. Cuomo in a press release." Them's strong words, yessir, and even though the two chipmakers have made up, the EU is most likely going to continue its pursuit of Intel. Rotten at the Core for the win. TechDirt.com : Mike Masnick's favorite bugaboo, the protection of intellectual property, takes center stage one again in a topical piece entitled Google Doesn't Rely On Intellectual Property For Its Leadership Position . Masnick intones: In the various debates we have on intellectual property, we often hear people insisting that Google's dominance is based on intellectual property -- even though there's very little evidence to support this at all. The people who make this argument are guilty of the same mistake made in studies that count all things covered by intellectual property laws as if they only exist because of those laws. Entertainment industry lobbyists, like The Copyright Alliance, love to tout that "$1.52 trillion of the nation's GDP" comes from intellectual property. But that's both misleading and wrong. The number itself is exaggerated, but it also gives credit to intellectual property for anything that touches IP. For example, when we dug into the methodology, we saw that the study counts things that clearly were not because of IP law: such as furniture and jewelry. Are the Copyright Alliance and its entertainment backers really trying to suggest that without copyright law we would have no furniture or jewelry? In the theater of the patently absurd, Mr. Masnick always seems to be able to dig out some example of bizarre IP and poor fundamental principles that have come to define business as usual at the USPTO. Libervis.com : Here's a patent stream-of-thought to ponder from a piece by memenode, "Intellectual Property" a Violation of Real Property : ...[P]retending that ownership of software is possible and thus trying to enforce this ownership (as copyright and patent laws do) actually leads us to violations of actual physical property. If you claim that every arrangement of ones and zeros represented in any medium so long as it is the same arrangement as on your original medium (which you produced) is your own property then you're essentially claiming ownership of these media. To simplify, if you claim to own a program you're actually claiming to fully or partially own the CDs, DVDs, hard drives of all the people who may have a copy of that program on them. Yet if these people acquired these storage mediums and devices themselves they already are their rightful owners. So in essence you are claiming ownership over something that isn't yours. And in a way, that's how it pans out when the creator of software-based and/or digital content, such as Autodesk, claim that the original owner has no permission to resell the physical medium that carries the digital information on it. Any one have thoughts to share on why this argument is, or isn't, valid? Bonus IP piece o' the day: Washington Should Get Tough with Countries that Force U.S. Companies to Outsource by Laura D'Andrea Tyson at Harvard Business Publishing . | |||
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| Intel And AMD, Sitting In A Tree... | |||
| Written by Anthony Dale Kuhn | |||
| Breaking news in the Intel v. AMD spat from DailyTech.com : "...Intel and AMD now appear to be making amends. The pair issued a joint statement today which reads, 'While the relationship between the two companies has been difficult in the past, this agreement ends the legal disputes and enables the companies to focus all of our efforts on product innovation and development.' As a part of the settlement, Intel will pay AMD $1.25 billion, AMD will drop all of its pending lawsuits against Intel, and the pair will enter into a new 5-year cross license agreement. In addition, Intel will 'abide by a set of business practice provisions' in the future." Don't know if this means the EU lawsuit that predates this "kiss-and-make-up" agreement will be dropped, but 1.25 billion US dollars is not a lot of cash for chip-making king Intel to pay. I bet that's not even one day's profit for the company! Check out the rest of the story in Intel, AMD Settle Antitrust Disputes, Intel to Pay AMD $1.25 Billion . University Oxford Press Blog : Charles R. Macedo, a partner at Amster, Rothstein & Ebenstein LLP and published author on the subject of "patent practice in the United States," takes a riff on a theme touched on my US Supreme Court Justice Sotomayor in his topical piece entitled Justice Sotomayor, Perhaps “Speed Dating” Should Be Patent-Eligible After All . Macedo writes: In an effort to divine where to draw the line on patent eligibility, the Justices posed a variety of hypothetical inventions to test patent worthiness using a proposed rule from the Appellate Court, to see whether that Court got the right answer. As an apparent example of an invention that should not be patent worthy, Justice Sotomayor, the newest member of the Court, is crediting with asking “why not speed dating?” [Court observers note that the transcript may be in error as to whether she said “speed dating” as reported in the media or “speaking”, but “speed dating” is a more interesting hypothetical]. Even if transcripts of the Bilski deliberations mis-heard Justice Sotomayor, the question is a real one. "[P]erhaps Justice Sotomayor will be surprised to learn that the US Government has recognized that, at least when a speed date was tied to a computer in a manner conceived by Mordechai Teicher, the invention was entitled to patent protection in US Patent No. 7,305,398, entitled 'Apparatus and Method for Managing Social Games'." Check out the rest of Macedo's piece at the above link for more musings on the patentability of speed-dating in the 21st Century. CNNMoney.com : A molecular diagnostics company was awarded a patent today for its algorithmic method to test for ovarian cancer. Details from U.S. Patent Office Issues Vermillion Patent for Biomarkers Detecting Ovarian Cancer : "Vermillion, Inc. (OTC: VRMLQ.PK), a molecular diagnostics company, today announced that the U.S. Patent Office (USPTO) has issued patent number 7,605,003 titled 'Use of biomarkers for detecting ovarian cancer' to the Company for the discovery of biomarkers for ovarian cancer. The patent covers biomarker combinations for both the diagnosis and management of ovarian cancer and covers measurement of the markers by a variety of methods, including mass spectrometry and immunoassay approaches." The patented method will calculate a number after assessing a variety of criteria to assist in making the decision to operate, or not, based on "the likelihood of malignancy in women with pelvic mass." Ecopreneurist : One bed & breakfast owner takes the gentle, and constant, reader through the process of trademarking a name with the US Patent and Trade Office to protect it from mis-use in a recent blog post. John Ivanko, owner and operator of the Inn Serendipity B&B, writes, "Naming your business is fulfilling and should be a meaningfully creative process. While possibly requiring the services of an attorney if you have a complex business model, establishing the name of your business and registering its trademark or service mark with the US Trademark Office can be done with the forms provided on their website. Protecting your business name insures that no other business will usurp your reputation and borrow your identity for their profit, not yours. The small 'TM' refers to a registration mark waiting for approval by the US Trademark and Patent Office. Once approved, the '®' replaces the TM. It’s important to use these marks to protect the reputation of your business and reaffirm that you are pursuing business in earnest, not as a hobby." For the particulars of how Ivanko went about registering, and eventually renewing, his trademark, be sure to read his complete piece, Preventing Identity Theft: Registering Your Business Trademark or Servicemark . CBSNews Blogs : In a recent post, Brian Montopoli asks the question that is on the minds of many people in light of the growing concern over swine flu: " In Shortage, Should Generic Tamiflu be Imported? " Montopoli tries to dispel the rumors that there are shortages of the drug by speaking with a representative of Roche, the company that holds the patent on the drug. "Tamiflu is manufactured by a Swiss company called Roche Holdings, and the company has a patent on the medicine in the United States through 2016. Kristina Becker, a spokesperson for Roche, said in an interview Tuesday that the company is 'confident' that it has the resources to meet demand for the drug. She said that while supplies of liquid Tamiflu have been spotty in some areas, there are ample supplies of the capsule form of the medication, which can be opened up and effectively turned into liquid medicine through dilution with syrup. She also said there would be more shipments of the liquid version next month." But there are others who say there is a need for a generic version of the drug to keep up with international demand in mostly poor countries. Others, such as Dr. Yusuf Hamied, the chairman of a Mumbai-based drug company called Cipla: "Earlier this year, Cipla won a court battle in India to produce a generic version of Tamiflu, called Antiflu. The company subsequently got certification from the World Health Organization that Antiflu was as effective as Tamiflu. It began selling it in India and Mexico at a discount from the cost of Tamiflu. Now the CDC is reportedly signaling it is open to the possibility of importing Antiflu to the United States. (Representatives for the CDC have not yet responded to a request for confirmation.) Doing so would be controversial, since patent rules prohibit a Tamiflu generic coming onto the U.S. market for years." So, it seems that patents need only be enforced by the US Government when they are convenient for it to do so and not because patents are inviolable? Poppycock and balderdash, I say! PatentBaristas.com : Webcast: Patentable Subject Matter After the Bilski Oral Argument features details about an upcoming on-line panel discussion that may be of interest to those following events at SCOTUS. Stephen Albainy-Jenei explains the premise for the event: "In Bilski v. Kappos, the U.S. Supreme Court addresses limitations on patentable subject matter in the context of a business method invention, analyzing a body of case law in such a way that some say could wrongly call into question the validity of many other patents and types of claims, while others argue it is not restrictive enough. The oral argument – and the subsequent decision – will be studied by a broad range of members of the patent community who are seeking to determine its effects on innovation, prosecution, licensing, and litigation." To review the list of participating panelists and learn how to join in the discussion, click the link above. Bonus IP piece o' the day: Microsoft Patents Changing User Privileges Temporarily On The Fly by Mike Masnick at TechDirt.com . | |||
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| Wednesday Round-up Of IP-related Articles Of Note | |||
| Written by Anthony Dale Kuhn | |||
| On Veteran's Day: Thank you to all military members, past and present, who have served this country in times of war and peace. Shenzen Post : China International Innovation Convention to be concurrently held with the Hi-tech Fair offers this summary of two upcoming events that will will incorporate intellectual property discussions into their schedules: Keeping to the principle of “basing ourselves on the front of the world development, leading the independent innovation, practicing the scientific development perspective and promoting the innovation and development of China’s economy”, the International Innovation Convention strives to build up a bridge of high-end exchange for the global innovation and cooperation and create a platform to exhibit the thought collision, theory exchange and practical fruits that regard Chinese independent innovation as its main body, boldly exploring and promoting the innovation process. It’s said that the Convention is composed of “world innovation summit forum” and “invention and patent fruits”, during which there will be also deep-seated and multinomial project cooperation negotiation, patent technology and product transaction activities involving the innovation and construction. PatentBaristas.com : More on SCOTUS' deliberations on Bilski v. Kappos in Stephen Albainy-Jenei's topical piece, Supreme Court Ponders Hypotheticals In Bilski . He writes: "In the end, the justices seemed to be conflicted with wanting to limit patent eligible subject matter to exclude frivilous matters but not wanting to cut out valuable technological advances that happened to be unconnected to a machine or transformation." GenomeWeb : According to Rosetta Issues US Patent, Notices of Allowance on Applications Covering Human miRNAs , "Rosetta Genomics said last week that it has been awarded a US patent covering a human microRNA, and received notices of allowance for eight additional US patent applications related to human miRNAs. The patent, No. 7,592,441, relates to human microRNA miR-193b, as well as complementary probes and vectors, the company said, noting that down-regulation of miR-193b has been associated with progression and invasion of human breast cancer." More patenting of human parts. Not good. Klassic Grenada : The tiny island nation of Grenada is finally getting into the IPR game. "Senator Arley Gill, Grenada’s Minister of State with Responsibility for Culture, says a local body set up to safeguard the intellectual property of Calypsonians and other artistes will soon have its own headquarters. Senator Gill says the Corporate Affairs and Intellectual Property Office (CAIPO) signals the seriousness with which Government regards intellectual property." You can read the rest of the story in Intellectual Property Office To Be Set Up . MobileCrunch : Antares: Friend of misleading singers, enemy of misleading apps by Gagan Biyani brings on the T-Paine to an imitative iPhone app. Biyani explains: Here’s a bit of App Store drama for you: Antares Audio Tech, the company that built the underlying technology licensed for the popular “I am T-Pain” iPhone App, has unleashed their lawyers on Steamboat Mountain Designs, an indie developer and maker of the now-removed iPhone app, “AutoTuner.” Why? Well, it turns out that the term “Auto-Tune” — which due to the recent spike in usage in pop music has come to be misused almost as often as the term “photoshop” — is trademarked by Antares. In a cease and desist letter, Antares claims that “Steamboat’s use of ‘AutoTuner’ is virtually identical to Antares’ AUTO-TUNE(R) mark, simply adding an ‘r’ at the end of the mark and removing a hyphen, and is used in connection with a software program that is directly competitive and functionally identical to Antares’ AUTO-TUNE(R) product.” BusinessWire.com : From a recent news release come further details of what's behind the growth of one Californian law firm: The Lanier Law Firm, a national litigation firm, is continuing to expand the firm’s operations in Palo Alto, Calif., based on a unique, contingency-fee approach to intellectual property cases where clients pay no fees up front, and the firm gets paid only if it wins. Unlike many law firms that require clients to pay costly expenses and other charges while their cases are being prepared, The Lanier Law Firm is one of the few trial firms in the country that assumes all expenses for experts and case preparation, allowing many deserving patent owners and inventors to assert their legal rights when they otherwise could not afford to. “Contingency-fee litigation is ideal for many small companies or independent inventors,” says firm founder Mark Lanier. “Many of our clients lack the financial resources to protect their intellectual property, and that is where we step in to help.” The firm has also expanded its office space to meet increased case load and the need to accommodate more hungry lawyers. Contingency-Fee Patent Cases Helping The Lanier Law Firm Fuel Growth in Palo Alto, Calif. for the win. Bonus IP piece o' the day: USPTO Director Kappos’ Blog via The Invent Blog . | |||
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| Bankrupt Custom Motorcycle Business Seeks To Profit From IP Sale | |||
| Written by Anthony Dale Kuhn | |||
| Dallas Business Journal : A now-defunct motorcycle manufacturer is hoping to sell off its intellectual property to help liquidate assets for bankruptcy proceedings. From Motorcycle maker American IronHorse puts intellectual property up for sale come more details: "American IronHorse Motorcycles, a local maker of V-twin custom motorcycles, is having its intellectual property sold as is the business is liquidated through bankruptcy proceedings. Among other things, the Fort Worth company’s patents, trademarks, Internet addresses and parts designs will be available, according to Streambank LLC, a Needham, Mass., advisory firm that specializes in selling intangible assets." The company also hopes to find a buyer for its customer database with stipulations that the information be used in an appropriate way to protect the privacy of the records. With "assets of $1 million and liabilities of $10 million" IronHorse needs capitalize on any items of value to repay its debts and IP could be the company's saving grace. Further reading: Streambank Announces American IronHorse Motorcycles Intellectual Property Sale at BusinessWire . Also from BusinessWire comes news of an upcoming IP auction and related conference: "ICAP Ocean Tomo, a unit of ICAP Plc (IAP.L), announced today their next IP Think Tank featuring a Live IP Auction will take place March 24-25, 2010 at The Ritz Carlton in San Francisco, California. As the marketplace for IP transactions continues to evolve, the Think Tank sessions will focus on next generation IP market development and will feature 30 (by invitation) thought leaders[.]" If you're interested in submitting your IP for sale consideration, the new release suggests you "contact ICAP Ocean Tomo at 1-866-779-8363 or at patent.brokerage@us.icap.com ." Check out the rest of the details in the lengthily-titled ICAP Ocean Tomo Announces Spring Intellectual Property Think Tank & Live Auction March 24-25, 2010 in San Francisco . If you are interested in the choice parts of the SCOTUS deliberations over Bilski v. Kappos , be sure to visit The 271 Patent Blog and read Peter Zura's blog entry on the matter. Here's just one tidbit from Zura's "On the Scene" Reports and Blogs from SCOTUS Bilski Arguments : "The long-awaited Supreme Court patent law showdown in Bilski v. Kappos is over, and it not looking good for business method patents -- or at least the one at issue in the case. Justices overall seemed hostile to a broad view of patent eligibility that would include intangible business processes." Uh-oh, Spaghetti-os! An ill IP wind is blowing in the direction of small businesses with SCOTUS at the helm of the pirate ship. IPWatchdog : In a related piece, Gene Quinn opines on SCOTUS deliberations on Bilski v. Kappos , and gives this summary of the case's importance: It is not an overstatement to say that the fate of much future innovation rests squarely on the Supreme Court getting this one right, so lets hope for the best and pray that they do get this one right. There is every reason to believe that the Supreme Court will accurately and appropriately reach a sensible decision relative to patentable subject matter, but there is also at least some fear that they may get it wrong, and wrong to the point where vast amounts of innovation will cease, stall and simply never develop. But have no fear, gentle reader, Quinn is reasonably sure a "sensible decision" will be the court's choice, "...I don’t worry about the Supreme Court uttering the nonsense it did in Gottschalk v. Benson when it said the method involved had no substantial practical application except in connection with a digital computer, which they then believed meant the method shouldn’t be possible. Yes, we are long past believing methods associated with digital computers are inconsequential, but do a bunch of elderly, sequestered jurists know just how important this case is? I sure hope so, and I sure hope they once again sing the praises of patentable subject matter." Be quite sure to read Quinn's entire piece, Argument Day in Bilski at US Supreme Court , for the rest of his thoughts. TechFlash : Once and long-time patent rivals Microsoft and Novell appear to be the best of chums these days. According to a recent piece by Todd Bishop, co-founder and managing editor of TechFlash, the first 3 years of a 5 year deal have borne profitable fruit for the partnership. "Microsoft and Novell today are marking the third anniversary of what was, at the time it was announced, a surprising business and technical agreement bridging proprietary and open source software. The companies say they have signed up more than 475 joint customers under their partnership, which aims to make it easier to run Windows Server and SUSE Linux more smoothly together. That's up from about 200 a year ago." Not everyone is so happy about the dynamic duo's decision to play nicely together. Bishop explains, "The agreement caused a big stir because of a provision in which each company promised not to sue the other's customers over patent-infringement claims stemming from their use of Windows or Linux. The provision is viewed by many in the open-source community as implicitly supporting Microsoft's allegation that Linux and other open-source programs violate its intellectual property." Can't please all the people all the time, right? Be sure to find out more in Bishop's aptly-titled Microsoft patent controversy? Not much anymore, Novell says . Bonus IP piece o' the day: PCTEL and Wider Networks Settle Intellectual Property Dispute via YourStory . | |||
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| ACTA Still Gathering Opponents Amid Secrecy Concerns | |||
| Written by Anthony Dale Kuhn | |||
| ACTA resistance is picking up according to numerous reports on the Interweb tubes. Nate Anderson at ArsTechnica.com has been keeping a close eye on the secret discussions and has done his part to make public some of the contents of the proposed international agreement that were leaked in Europe recently. In his most current piece on the subject, The ACTA Internet provisions: DMCA goes worldwide , Anderson continues his bid to reveal what the legislation would mean for global intellectual property. He writes on why the hullaballo might simply be a case of "the sky is falling!": The ACTA Internet provisions can be better seen not as a call for secret new powers, but a "DMCA for the rest of the world." That's why section four of the US draft brings the "anti-circumvention" principles to the table, though even here the EU notes that "'fair use' will not be circumscribed" and "there will be exceptions to these prohibitions available to ACTA members." And that's it; the document is remarkably brief, and appears to pose no novel issues to US residents worried that ACTA would come down hard on ISPs and end users. Given that these notes are based on a draft of a draft, however, one that was certainly modified during this week's ACTA meeting in Seoul, it's unclear how this section will evolve; we look forward to seeing a full draft of the relevant sections before passing judgment on it. Stay tuned IN fans for more information on this developing story as it comes available. Until then, don't give up the good fight, because as Anderson notes: "ACTA is looking a good deal less scary than when it first appeared, but that's no reason for the public to back off its attempts to see what's being negotiated in its name." Bloomberg.com : There's a large storm brewing at the US Supreme Court over "how much legal protection is afforded abstract business innovations" and there are some big players being drawn into the maelstrom. Greg Stohr reports: The U.S. Supreme Court today considers a patent dispute that will determine how much legal protection is afforded abstract business innovations and has drawn in companies including Microsoft Corp., Google Inc. and Novartis Corp. The justices have received 68 briefs from outsiders, a record for a business case, attesting to the potential impact. Bank of America Corp., American Express Co., Morgan Stanley and Accenture LLP are all pressing arguments in the case, which stems from a patent application for a method of hedging weather- related risks when buying and selling energy. And even the reporter's employee is getting into the mix: "The Obama administration is also advocating a tougher standard for granting method patents, as is Bloomberg LP, the New York-based parent company of Bloomberg News." How's that for self-referential reporting? Good times. Read more about this critical and far-reaching SCOTUS case in Stohr's Microsoft Battles Novartis in High Court Patent Limits Dispute . More ACTA news: From a recent Mi2N.com press release: "Sixteen library, consumer, creator, and civil liberties organizations told the Obama Administration of their 'deep concerns about the lack of transparency and openness' surrounding the negotiation of an international trade agreement that has the potential to rewrite U.S. copyright law." And the complainants aren't shy about wanting to get to the bottom of this "national security" secretiveness nonsense: "'As an instrument affecting multiple nations' laws and policy, ACTA should be negotiated in public, as has been done routinely with international intellectual property agreements in the World Intellectual Property Organization and the World Trade Organization,' the groups said." There's more of the groups' concerns in the related piece, Groups Protest Obama Administration Secrecy On 'Trade Agreement' . And hey, what ever happened to promises of "a more open and transparent government," Mr. Obama? The TTABlog : What's in a domain name, you ask? Plenty of potential IP strife and strain, it would appear. John L. Welch takes a look at the kerfluffle surrounding a particular domain name and whether or not it is "generic" or special enough to warrant extraordinary protection by a governing body. From Welch's CAFC Affirms TTAB Genericness Ruling re "MATTRESS.COM" for -- Guess What? : "The CAFC has affirmed the TTAB's decision in In re Dial-A-Mattress Operating Corp., Serial No. 78976682 (November 13, 2009) [not precedential], in which the Board affirmed a refusal to register the term MATTRESS.COM on the Supplemental Register, for "online retail store services in the field of mattresses, beds and bedding," on the ground of genericness. In re 1800Mattress.com IP, LLC, Appeal No. 2009-1188 (November 6, 2009) [precedential]." The meat of the matter is whether or not when one combines two generic terms into one that it suddenly becomes specific enough to become eligible to be entered on the Supplemental Register. And no, MATTRESS.COM does not qualify. So there. Telegraph.co.uk : Rupert Murdoch is in the process of setting up paywalls around many of his Big, Old Media (BOM) holdings and has threatened to remove his companies' works from Google's index. To which the Mountain View, California company said: "Go ahead. See if we care." Emma Barnett, Technology and Digital Media Correspondent, reports: "The Google statement said the procedure to remove any material from its search index required “simple technical standards, used by millions of webmasters and honored by all reputable search engines, to instruct a search engine not to index a web page or even a particular photo on a page”. “If publishers want their content to be removed from Google News specifically all they need to do it tell us,” the statement concluded. A spokesman for Google also added, "Publishers put their content on the web because they want it to be found, so very few choose not to include their material in Google News and web search. But if they tell us not to include it, we don't." Simple Simon. Easy-peasy. Say good-bye to all that free advertisement, if that's what you want, Mr. Murdoch and good luck with your pay-to-play online media empire plans. Google: Rupert Murdoch can block us if he wants to for the win. Bonus IP video piece o' the day: William Patry delivering Frey Lecture in Intellectual Property Law at Duke at O'Reilly TOC . | |||
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| ACTA Continues Secretive Goings-on | |||
| Written by Anthony Dale Kuhn | |||
| eWeek.com : The ACTA process (Anti-Counterfeiting Trade Agreement) is attracting all the wrong kind of attention and a recent article by Roy Mark highlights some of the reasons the secret talks have hackles raised. From Mark's topical piece, Secret IP Treaty Proposal Rubs Tech Wrong : Civilian libertarians, Internet privacy watchdog groups and libraries are irate over the secret negotiations in Seoul, South Korea, involving ACTA (International Anti-Counterfeiting Trade Agreement). The negotiations, they claim, heavily favor Hollywood interests pushing tougher international copyright laws and, moreover, the entire process has been shrouded in secrecy. In a very ironic statement, one official touts the importance of openness to the agreement's success: According to the USTR (U.S. Trade Representative), the talks were "productive and focused on enforcement of rights in the digital environment and criminal enforcement. Participants also discussed the importance of transparency including the availability of opportunities for stakeholders and the public in general to provide meaningful input into the negotiating process." But what about transparency of process, Mr. US Trade Representative? Why is such an important law being kept secret? And please don't try to cop out with cries of "national security" as a legit reason. That's so George Bush and we were hoping for a bit of "change." You know, like you promised. In an unrelated eWeek.com piece, Motorola wins big with a multi-million dollar award relating to disputed wireless intellectual property according to a topical article, Aruba, Motorola Settle Patent Dispute . Author Roy Mark details the outcome of this out-of-court settlement. "Aruba Networks and Motorola said Nov. 6 they have settled a two-year-old dispute over patents owned by both companies. The settlement involves Aruba paying Motorola $19.8 million and both parties agreeing to a cross-licensing agreement." Now both parties have kissed and made up so after Aruba pays the piper they can put their new Motorola IP to work and try to make back their almost 20 million dollar shortfall for the coming quarter. VentureBeat.com : eBay and Skype have finally made amends over the contested intellectual property that has kept both companies from realizing their maximum potential according to a recent piece by Matt Marshall. And, as it turns out, Skype's original co-founders will be back in the saddle again as members of a group that will take the company to the next level of profitability. Marshall reports: Private equity firm Silver Lake Partners leads the investor group, and is joined by venture capital firm Andreessen Horowitz and the Canada Pension Plan Investment Board, as well as Skype founders Niklas Zennström and Janus Friis. As part of the deal, Index Ventures, a very early original investor in Skype, is being jettisoned from the investor syndicate. Very bad blood had developed between Mike Volpi, a partner at Index Ventures, and the Skype founders after it emerged that he’d tried to go behind their backs to arrange the deal without including them (not great diplomacy, because he was working for the co-founders at the time, as chief executive of video company Joost). Separately, Friis and Zennström had accused eBay of breaching a licensing deal concerning the Joltid technology, and had sued the entire investor consortium. Andreessen reveals that "Everything is settled," which means that all parties involved can move on to bigger and better things. Check out all the happy news in Skype is finally free — eBay settles with Skype co-founders, clearing way for buyout . P.S. Now might not be the time to short your Skype stock, people! CNBC.com : Keith Bergelt, CEO of the Open Invention Network, is an advocate for changes to existing US patent law and thinks he has the solution to the some of the difficulties facing intellectual property owners, present and future. Bergelt shares his ideas with the constant reader in his explicatory work, Keith Bergelt: The Case for Market Based Patent Reform . Bergelt writes, "While there is an apparent commitment by the Obama administration to drive this issue, the changes that are ultimately embodied in the final legislation will, at the end of the day, be suboptimal unless industry becomes proactive and shoulders more responsibility by participating in market-led patent reform that meets legislative and judicial reform half way." And to this end, he recommends the following three changes: (1) identify prior art to facilitate the efforts of USPTO patent examiners in evaluating patent applications; (2) identify prior art which can facilitate the invalidation of existing patents that were improperly granted because patent examiners did not have access to relevant prior art during the initial review; (3) develop a generative process of codifying inventions in the form of defensive publications that serve as an immediate record of prior art that is readily accessible to patent examiners through databases. No better way to help than to help one's self, it seems. Be sure to read the rest of Bergelt's insightful view on open source's role in successful and meaningful patent reform via the HTML link above. Inventors Digest : USPTO chief David Kappos had occasion to speak at the 14th annual Independent Inventors Conference and offered those gathered a number of newsy tidbits that should help inventors feel more at ease with the agency's moves to come into the 21st Century, albeit with a little kicking and screaming along the way. Kappos' keynote speech included this memorable bit on fast-tracking patents: The program, he said, “is specifically designed to accelerate the patent process for independent inventors. This backlog reduction pilot project will be made available only to small and medium-sized entities and will give you the opportunity to receive special, accelerated status for a new application if you abandon a pending, unexamined application. “The program allows independent inventors and innovators to advance an application in the queue by swapping out one they are willing to abandon,” he told the audience of some 200 at the USPTO building in Alexandria, Va. “We believe this gives you the option to accelerate protection for your innovation – while also reducing the overall backlog.” Kappos also garnered a bit of praise with his recent rescission of some proposed policy changes that would have caused delays to the patent process. "Kappos already rescinded a widely criticized rules package that would have limited the number of claims and continuations that the former USPTO regime attempted to implement." Three cheers for a modicum of progress and a bit of common sense! Read USPTO unveils fast-track patent plan for the rest of the story. Bonus IP piece o' the day: Complaint to Protect Trademark and Intellectual Property from Unlawful Use courtesy of The Chamber Post . | |||
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| Senate Judiciary Committee Considers Important Intellectual Property Appointment | |||
| Written by Anthony Dale Kuhn | |||
| ChamberPost.com : Mark Esper's recent timely post, Hearing Marks Importance of IP to America’s Economy , covers the Senate Judiciary Committee confirmation hearing on Victoria Espinel. Esper offers some details of the hearing and explains why it is worth considering the ramifications of the committee's's probable decision to approve Espinel for the position of "the nation’s first Intellectual Property Enforcement Coordinator (IPEC)." He writes: Victoria Espinel is a well respected IP expert who, once confirmed, should make an excellent U.S. IPEC. What remains to be seen is how effective this position will be in terms of bridging the gap between pro-IP rhetoric and decisive action. Key to this will be the resources she has available to do her job, and the authority and access to make things happen. It will begin with the national IP strategy, because without this, I don’t believe developing an economic plan that maximizes the talents of America’s workforce and the ideas of our people is possible to achieve. The creation of the U.S. IPEC signifies a common understanding of the importance of IP to jobs, the economy, and human progress. Once the U.S. IPEC is confirmed, the development, coordination, and implementation of policies and plans to protect IP will be the first real measure of success. Sounds like Esper is giving Espinel two thumb's up and strongly believes that her appointment will have far-ranging and significant implications for the United States' intellectual property rights enforcement program at home and abroad. Reuters.com : An upcoming conference, the China Intellectual Property Business 2009 aka CIPB 2009, will take on the challenging task of polishing up the country's intellectual property protection measures, but with a twist. "Unlike other IP conferences focused on legal issues, this event deals more with the strategic concerns within a company rather than just protection issues." The event will be held at the Shanghai Marriott Hotel in Hongqiao on November 18-19, 2009. "This conference is problem solution driven and each company who has the need to extract more value from their IP assets will find a suitable solution for them and find potential business partners either during the conference or after the conference." Everyone will be a winner, yes, indeed! For more details on this important Chinese IP confab, be sure to read the rest of China Intellectual Property Business 2009 -- Global IP Leaders Focus on China by Jojo Cao. Times Online.uk : With the passing of the great thinker Frenchman Claude Lévi-Strauss, known globally as the "father of modern anthropology," the English have taken pause to consider why its culture considers intellectualism and, by way of proxy the resulting IP they produce, to be little more than "a term of abuse, rarely used in polite company." Here's meat of the matter: "Yes, Britain has scholars and pundits. But on the intellectual spectrum they enjoy a status somewhere between being and nothingness. France’s 'intellos' serve as the moral conscience of their age, speaking freely on the political and social mood. Intellectuals lift the national debate. They fertilise political thought. A country too embarrassed to embrace them is, well, too stupid by half." In a place like Britain it would seem a far stretch to imagine intellectual musings being taken very seriously and it plays out in the country's long, slow fall from global prominence to a position among the minor players of has-been colonizers. Catch more of this revealing peek behind the curtain of British anti-intellectualism in Why isn’t Britain as brazen as France in celebrating its greatest thinkers? ArsTechnica.com : Intel is battling claims of unfair market manipulation and monopolistic business practices on many fronts these days, and Jon Stokes hopes to clarify and explicate the situation for the gentle reader in his topical article, A close look at the new antitrust allegations against Intel . Stokes starts out with a summarization of the events up to this point: Intel has been fighting a vicious antitrust battle in Europe for years, is battling AMD in US court, and now New York Attorney General Andrew Cuomo has opened up an American front in the Intel war by filing an antitrust suit against the chipmaker. The allegations in the suit will be old hat to veteran PC market watchers, because there's almost nothing in the 87-page filing that Intel hasn't been accused of at least once over the past decade, either openly as part of the EU proceedings, in the course of AMD's antitrust lawsuit, or discretely in the form of gossip at industry conferences. Stokes then weighs in on New York AG Cuomo's decision to join the lawsuit frenzy with his own complaint to add to Intel's already burgeoning pile of litigation: The story as told by AG Cuomo's legal team is essentially a love triangle involving Intel, Dell, and AMD. Intel and Dell are "married" (seriously, Intel's language), and Intel plays the part of the jealous, controlling husband with Dell as the wife who gets seduced by the younger and, for a time, handsomer AMD. Intel retaliates, and there's a bunch of stuff about margins and rebates and partnerships and concubines, but that's the gist of it. If you're thinking that none of this sounds like it has much to do with actual microprocessors and benchmark bakeoffs, then you're right—it doesn't, and that's the point of the suit. Cuomo wants the story to read like a drama about greed, jealousy, and manipulation, and not like a story about products competing on the merits. Great stuff with terms like "love triangle" and "concubines" spicing up what would otherwise be a dry and boring tale of Intel's bad boy behavior. Any one have any thoughts to offer on Cuomo's entrance into the growing legal row? Bueller? Is there any body out there? In an unrelated ArsTechnica.com piece, subject expert Nate Anderson asks: "Is defaulting or settling the best way to resolve allegations of illegal file-sharing activities when the RIAA comes a' knockin'?" The answer is more complex than it might seem at first glance, so Anderson does some serious investigative research to find out. Anderson writes: The Recording Industry Association of America wants accused file-swappers to know that not responding to a federal copyright infringement complaint is a bad idea. When we last looked into this issue just over a month ago, we found something surprising: the only two Americans who took their file-sharing lawsuits all the way to a jury verdict owed far, far more money per song at the end of the trial then if they had never shown up to court in the first place. Those who defaulted eventually found themselves on the hook for $750 per song—the smallest amount of statutory damages possible—and they saved themselves months of stress. Those who fought all the way through trial racked up plenty of legal fees in addition to a pair of outrageous judgments. Andserson then follows a few of the cases where the defendants eventually settled and learns that indeed, the cost goes sky-high if the RIAA-proffered settlement is not taken. And what confuses Anderson more is this chain of thought: "If the recording industry is willing to accept $750 statutory minimums—and even less in settlements—then why would it not provide the juries in both cases any guidance about a monetary award? Throughout both trials, the music industry lawyers refused to say what they thought a proper damage award might be, always saying that it was in the jury's hands and the piracy was killing the music business." No guidance from the RIAA during juried trials has led to HUGE damage awards that were not in keeping with previous valuations for those defendants who chose to settle out of court. Does the RIAA let defaulters off the hook? for the win. Bonus IP piece o' the day: Report: Intellectual Property Rights Critical to Jobs and Growth of Clean Energy Technologies in India by Anubhav Bharadwaj at Read It India . | |||
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| NY AG Cuomo Goes After Chipmaker Intel With Teeth Bared | |||
| Written by Anthony Dale Kuhn | |||
| The Wall Street Journal - Market Watch : New York Attorney General Andrew Cuomo has filed an antitrust case against computer chip manufacturing giant Intel Corp according to a recent piece by San Francisco-based reporter, Benjamin Pimentel. In his topical piece, Pimentel reports: To bolster his case, Cuomo cited internal emails, including one from a Dell communication warning that Intel Chief Executive Paul Otellini and Craig Barrett, then the company's chairman, were "prepared for jihad" if the computer maker uses AMD products. Intel quickly fired back, with spokesman Chuck Mulloy saying the company disagrees with Cuomo's decision. And things are just starting to get dirty for Intel. "The pig pile is on," analyst Roger Kay of Endpoint Technologies Associates said in email comments. "Aside from this latest blow, Intel is facing an active U.S. Federal Trade Commission investigation, not culminated in charges yet but likely to soon, as well as the expensive civil suit with AMD. "And on top of that, there's the international appeals. You could say Intel is getting pretty muddy about now." Learn more about Intel's rumored use of "rebates" and obfuscating terms like "volume targets" to hide its unfair and monopolistic actions in New York's attorney general files antitrust suit against Intel . And enough already with using the term "jihad" to describe any kind of attack, OK? Reuters.com : Members of a once popular band can not continue to use the name of the band after replacing the dead lead singer a California judge ruled recently. Matthew Belloni offers more details in his related piece, Judge blocks Sublime band members from using name . The preliminary injunction was issued Tuesday in a trademark lawsuit brought by the estate of frontman Bradley Nowell, who died of a drug overdose in 1996. Surviving band members Eric Wilson and Bud Gaugh have continued to perform. For years they played as the Long Beach Dub Allstars, but recently they revived the Sublime moniker when they recruited newcomer Rome Ramirez as lead vocalist. That didn't sit well with Nowell's family. Three days before the band's performance at the Cypress Hill Smokeout Festival in southern California on October 24, the Bradley Nowell estate and merchandising entity filed a trademark infringement suit in U.S. District Court in Los Angeles. And the Nowell clan has proof that Wilson and Gaugh knew they were not allowed to use the name "Sublime" without permission of the ex-band member's estate. "'Prior to his untimely passing, both Bud and Eric acknowledged that Brad Nowell was the sole owner of the name Sublime,' the Nowell family posted on the band's MySpace page." And as we all know, if it's on a MySpace page, it's gotta be true. R.I.P., Sublime, and welcome back, Long Beach Dub Allstars. BoingBoing : The secrecy surrounding the proposed ACTA (Anti-Counterfeiting Trade Agreement) legislation has many interested parties up in arms over claims of "national security" when a select group of industry insiders have been allowed to view and weigh-in on the changes. What are some of the contents of this closely-held document? Here are some of the of the agreement's talking points: * Mandatory prohibitions on breaking DRM, even if doing so for a lawful purpose (e.g., to make a work available to disabled people; for archival preservation; because you own the copyrighted work that is locked up with DRM) And this: * That the whole world must adopt US-style "notice-and-takedown" rules that require ISPs to remove any material that is accused -- again, without evidence or trial -- of infringing copyright. This has proved a disaster in the US and other countries, where it provides an easy means of censoring material, just by accusing it of infringing copyright. The mere quantity of comments this news has generated is astonishing and points to the fear that people have of a secret and unfair law becoming a global policy without the vote of the people who will be affected. Read the rest of the story in Secret copyright treaty leaks. It's bad. Very bad. by Cory Doctorow. The Brookings Institution : The US Chamber of Commerce's on-going efforts against the dissemination of IPR to struggling third-world countries to help them get on board the global climate change bandwagon have attracted much speculation and commentary. With the Copenhagen meeting only a few months away, Charles K. Ebinger, Director, and Govinda V. Avasarala, Intern, of the Energy Security Initiative, have penned the first in a 5 part series on the United Nation's 15th Conference of Parties (COP 15) entitled Transferring Environmentally Sound Technologies in an Intellectual Property-Friendly Framework . Interestingly, the article points to an innovative way to ensure all parties involved with the proposed technology transfers benefit from the transaction. "...[T]he authors propose a collaborative effort between the UNFCCC and private sector firms through the usage of Technology Needs Assessments (TNAs) and a segmented/parallel pricing mechanism. TNAs are country-specific technology requirements based upon geographic and demographic constraints. Developed in conjunction with UNEP, TNAs prevent ‘blanket solutions’ whereby nations receive unsuitable technologies. Segmented/parallel pricing involves selling technology to wealthy nations at market prices and to developing nations on a marginal cost scale." That might help the US COC join the major players in trying to hammer out an agreement that both protects IPR and provides a way for poorer countries to join in the program's goal of reduced global climate change. Maybe the Yes Men can get involved and shame the Chamber into doing the right thing? ArsTechnica.com : Moral panics can have odd and far-ranging effects. And recent efforts by Big Media to lock down all content as it sees fit makes the old saying "truth is stranger than fiction" unfortunately a reality. Nate Anderson reports on a recent book by chief Google IP counsel, William Patry, and learns why patent laws and takedown notices need to be quickly reformed. William Patry might not look from the outside like a man with a fire in his belly. A copyright lawyer for 27 years, Patry has written one of two definitive accounts of US copyright law (all 5,500 pages of Patry on Copyright can be yours for the low, low price of only $1,589). He served as a key counsel to the House of Representatives and is currently Senior Copyright Counsel at Internet behemoth Google—and if you ascribe his personal views to his employer, Patry will visit your house in the night and throw copies of Patry on Copyright through your largest windows. Trust me. Paltry's new book, Moral Panics and the Copyright Wars , holds some classic snippets on what's wrong with copyright law, including this chestnut: "•The DMCA is the 21st-century equivalent of letting copyright owners put a chastity belt on someone else's wife." Whoa, there! Maybe this "screed" would be more palatable for the gentle reader to digest: "• The Copyright Wars and the recent grotesque expansion of rights and remedies should be regarded as a legal equivalent of the subprime mortgage crisis: cancers on our system that were foreseeable and preventable but for greed, a failed ideology that the unregulated private pursuit of profit is also in the best interest of the public, and worldwide lack of political courage to admit to and take responsibility for the damage caused by copyright laws that harm rather than serve the public." Cancer? Virtual chastity belts? This whole thing has definitely gotten out of control, but that's not stopping Paltry from calling it like he sees it. Good for him! Be sure to read Anderson's entire comprehensive article for the rest of the heavy-hitting story. Bonus IP piece o' the day: More Big Content "moral panic" nonsense at Mike Masnick's MPAA Tells The FCC: If We Don't Stop Piracy, The Internet Will Die at TechDirt.com . | |||
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| Company Seeks To Recover Previously-sold IP Rights | |||
| Written by Anthony Dale Kuhn | |||
| Courthouse News Service : Most of us have heard of so-called "vaporware" but how about a "vaporpatent?" Barbara Leonard brings us up to speed on one biotech company's misguided sale of "exclusive patent rights" for their Down Syndrome test in her topical piece, Patent Fight Over Down Syndrome Test . Leonard writes: "A biotech company will not relinquish the exclusive patent rights it bought to develop noninvasive testing for Down syndrome, though the patents will be wasted since it never developed the test, the seller claims in New York County Court. Xenomics claims it was wrongly induced to sell its patents to Sequenom." The inducement included the sale of Xenomic's "'valuable exclusive patents and licensing rights'" in exchange for "a small upfront payment, royalties of 6 percent of net sales and other revenue." But since Sequenom has not come up with a viable Down Syndrome test using the purchased intellectual property rights, Xenomics is taking the matter to the courts with hopes of recovering the rights to its IP and selling them to a "real" company that can produce a salable product from which both parties will profit. "Caveat emptor" would seem to apply in this case, wouldn't you say? The Independent : Are person-to-person (P2P) filesharers really as bad as music and software industry watchdogs say they are, or these same "pirates" providing the lion's share of profits for their targets? Rachel Shields' Illegal downloaders 'spend the most on music', says poll tackles the issue head on. Shields reports on some facts and figures that support the idea that P2P downloaders are a capitalists' best friend: "People who illegally download music from the internet also spend more money on music than anyone else, according to a new study. The survey, published today, found that those who admit illegally downloading music spent an average of £77 a year on music – £33 more than those who claim that they never download music dishonestly." If proposed legislation to reduce P2P filesharers' downloads with a "3 strikes and you're out" rule were to succeed, it "could harm the music industry by punishing its core customers." One industry expert points out that there is "a generation of young people who don't have any concept of music as a paid-for commodity" and that the price point needs to be reduced to the point that it becomes a non-issue. Some music service providers are already looking to be on the cutting edge of low-cost music downloading in hopes of gaining a larger market share. Shields explains: "This year Virgin Media and Universal Music plan to launch the first music subscription service allowing customers to download and keep unlimited tracks from Universal's catalogue for a fee of around £15." I'm sure the US-based MPAA and RIAA will be watching the action across the pond carefully for any industry-favorable developments in this situation. Taiwan News : China isn't just in the IP spotlight with US Commerce's Gary Locke recent appearance; Taiwanese copyright holders are up in arms over the flood of illegal trademarking related to products "many of which use uniquely Taiwanese features in their names" and are being sold on the mainland as being the real McCoy. Yang Su-min and Elizabeth Hsu report: "The government said Sunday that steps have been taken to protect Taiwanese trademarks registered by Chinese companies in China, and it expressed hope that the issue of trademark disputes will be addressed in upcoming talks between the two sides. The Cabinet-level Council of Agriculture (COA) said in a statement that it has helped protect the rights of 12 Taiwanese owners of trademarks for tea and other agricultural products through China's legal process." That's not to say that there aren't some Chinese rapscallions who refuse to give up their profitable, albeit, illegal Taiwan product copyrights. "...[T]he Chinese businessmen who registered the trademarks for Taiwan's Chihshang rice and Gukeng coffee have refused to abide by the rulings handed down by the Chinese authorities, COA officials said." Sounds like a case of poor enforcement by local authorities, nu? Read the rest of Su-min and Hsu's Taiwan hoping trademark issues will be solved in cross-strait talks for more on this potential IP detente. IP Finance : Disney is always a popular example for both sides of the intellectual property rights question and a recent piece by Neil Wilkof asks this fundamental question concerning the company's current IP intentions: " Disney: Is It about Contents, Distribution, or Branding? " The answer might surprise the constant reader. "...[I]t seems to me that in truth Disney is going back to its most basic strength--its brand. While the article focuses on the classic challenge of contents versus distribution in monetizing works of creation, what really lies behind the measures described in a strategy to find various ways to strengthen the overall Disney brand. After all, it is the Disney brand that gives the company its unique position in the entertainment world. And of course, it is the brand that is Disney's to lose, if they get it wrong." To find out how Wilkof came to his conclusion that brand is king for Disney, be sure to read the remainder of his reasoning at the above linked piece. District Chronicles : One ex-USPTO patent expert has picked herself up by the bootstraps after an unfortunate, but not singular, event. From D.C. lawyer makes her trademark on fashion : "In the fall of 2002, Mariessa Terrell sat on the curb of her former office building dumbfounded at the loss of a job she had grown to love for over three years. She had been a young lawyer for the U.S. Patent and Trademark Office in Virginia." As she contemplated her next move, Terrell had a super, natural experience that was to shape her path. Her mind wandered to a recent article she had read in The Washington Post lamenting that butterflies had disappeared from the D.C. area. Then out of nowhere, a beautiful monarch butterfly fluttered up to and circled around her. "The butterfly hovered and fluttered and at times even perched on my leg," she said. "It stayed with me for the 30 minutes while I sat on that curb." For months, Terrell would continue to have encounters with monarchs, notwithstanding the Post's claim of absence of butterflies in the Greater Washington area. Those butterflies became the catalyst of the new company, Simone's Butterfly at 3422 Brown St., NW. It's a legal services company Terrell operates right out of Apartment 202, her residence. Terrell is also heavily involved in promoting Washington D.C. as a future fashion capital and has already had some success getting local government involved in her efforts. "That passion led her in 2006 to start an intense lobbying campaign to get the D.C. City Council to pass a law to transform the city's image of just a center of politics into a premier center of fashion as well. That effort ended in Mayor Adrian Fenty signing D.C. Fashion Bill 17-173 into law on April 15, 2008. The law also mandated establishment of a DC Fashion Commission to showcase local fashion talents and promote various retailers in the D.C. area while generating revenue for the city." What a great story of sticktuitiveness and gumption, and all thanks to being fired by the USPTO. Bonus IP piece o' the day: U.S. Chamber Hosts Innovation and Intellectual Property Summit in Guangdong, China at the Global Intellectual Property Center . | |||
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| Copyright-protected Bob Marley Snowboards Inevitable | |||
| Written by Anthony Dale Kuhn | |||
| North Country Times : To commercialize the image of one of the most non-materialist figures in popular musical history might seem a bit paradoxical, but the family of the most well-known proponent of the Rastafarian lifestyle think that's just what they need to spread the word and collect some trademark booty. David McFadden reports on this ironic state-of-affairs: "Coming to a store near you: Bob Marley video games, shoes ... snowboards? Heirs of the Jamaican reggae legend are plunging into the global trademark wars, seeking to enforce their exclusive rights to an image that has grown steadily in scope and appeal since the Jamaican superstar died of brain cancer in 1981 at age 36." The Marley family has enlisted the aid of Toronto-based Hilco Consumer Capital to "protect its rights to the brand." Hilco estimates that the value of "Marley products could be a $1 billion business in a few years." And certainly the family of Bob Marley deserves to reap the rewards of their deceased patriarch's popular music and message, nu? Not all involved are pleased with the move by the Marley family to capitalize on Bob "Tuff Gong " Marley's fame: "The turn to big business has stirred some grousing from die-hard fans in Internet chat rooms, who say it goes against the grain of a singer who preached nonmaterialism and popularized the Rastafarian credo of oneness with nature and marijuana consumption as a sacrament." Read the rest of the details on the coming Bob Marley product storm in Marley heirs wage global war on trademark pirates . SiliconRepublic.com : John Kennedy covers the rising concerns by intellectual property experts regarding the possibility of unlimited generic top-level domain names in his topical article entitled Branded web domains could lead to widespread trademark battles . Kennedy explains the situation more fully: Unlimited gTLDs (generic top-level domains) means that virtually there will be no limits for generating new domain name extensions. “Dot brand” extensions like .cocacola or .gucci “dot cities” (e.g.: .berlin, .london, .paris), “dot communities” (eg, .gay) and “dot generic terms” (eg, .food, .music) could co-exist alongside .com or .org as of next year. One expert thinks the introduction of gTLDs could complicate the protection of intellectual property beyond the current difficulties faced by trademark-owning companies who find their very names registered by non-related entities. "Sylvain Hirsch, president of IP Twins, said the issue is one of the most contentious ones on the table at the ICANN (Internet Corporation for Assigned Names and Numbers) international meeting currently taking place in Seoul." Hirsch also offers that there is a great "need to make sure that the new naming system will not worsen this situation and will have enough safeguards against abuse of registered trademarks. Otherwise consumer confidence and business development online will be undermined." And we can't have *that* now can we? Superhero Law : If you think *you* have a hard time protecting your intellectual property from evil-doers, think what it must be like for a superhero to try to oversee their IP! And if you never gave this issue any thought, now's your chance. From Superhero Intellectual Property - In brightest day, in blackest night, no infringer shall escape their sight , the opening scene: "Superheroes have armor to protect their bodies, and gadgets to fight their enemies, but what protects them from impostors, what can they use to fight off infringers? A superhero’s intellectual property consists of everything from their insignia to their gadgets and even their catch phrases. In some cases intellectual property protection safeguards the means by which they obtained their powers and their very DNA." And trade secrets are one of the many facets of intellectual property rights that apply to superheros: "The biggest problem facing almost every superhero with intellectual property to protect is that to enforce their rights they would be required to register their creations thereby disclosing their identity. Tony Stark is usually very forthcoming with his Ironman alter-ego but others are more reluctant to go public. Trade secret protection offers limited protection along the same lines as the theories discussed above and does not require any registration." Be sure to read the rest of this superhero-focused article for a comic look at fantastic IP protection. Check out an outstanding and worthy piece at GrayonClaims for the well-presented and researched Wegner’s Top Ten Patent Cases (*.pdf file link) by Hal Wegner. Here's just a sample of what's in store for the constant reader: (4) i4i v. Microsoft: Damages4 Along with Lucent Technologies, Inc. v. Gateway, Inc., __ F.3d __, 2009 WL 2902044 (Fed. Cir. 2009)(Michel, C.J.), this case involves the review of a massive damages award for what appears to be, at most, a minor infringement by Microsoft for inclusion on its Windows® software of a minor component that had at most minor use by the public and which was not basis for the purchasing public’s choice to purchase Windows®. Status: Awaiting decision; argument September 23, 2009 (Schall, Prost, Moore, JJ.). Discussion -- Is statutory damages reform necessary? Is statutory damages reform as proposed in the current Congress necessary or desirable? Lucent v. Gateway prior to decision and the instant i4i case represent poster child exhibits for why damages reform is necessary. But, why not apply the existing damages test of Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F.Supp. 1116 (S.D.N.Y.1970)? Indeed, in both Lucent v. Gateway and the trial court opinion in Cornell University v. Hewlett-Packard Co., 2008 WL 2222189 (N.D.N.Y. 2008)(Rader, J.), there were successful applications of the Georgia-Pacific test. But, both Lucent v. Gateway and Cornell v. Hewlett-Packard manifest the opinions of two of the most senior patent experts on the judiciary, the current Chief Judge and his successor on the Federal Circuit each with more than twenty years of judicial experience. The idea that even the most brilliant and experienced trial judge without significant patent experience could readily navigate the waters of Georgia-Pacific is contrary to actual reality. The answer could and should be that all patent trials should be before patent-experienced members of the judiciary. Pure magic, people! And this isn't even all the thrilling and earth-shattering coverage Wegner offers on the Microsoft case. There are nine, count 'em 9, additional deep and meaningful cases that should be of great interest to the current or future IP expert. Halloween is over, so I promise there's nothing scary in store should you bravely click through using the link above. Law.com : Here's some great advice for the budding entrepreneur who is looking to capitalize his or her consumer good on the world stage from a trio of authors; Dorothy R. Auth, Andrew C. Chien and Jason M. Rockman. They write, "From the outset, an entrepreneur must have an understanding of the unique niche his or her core technology represents in the global environment of patents related to the relevant business field. One of the best ways to go about this is to answer the 'who, what, where, when, why' that make up the basis for any good analysis. In building a global patent fence, the answers to these questions will flow in a different order due to the nature of patent law, but will lead to an appropriate framework of understanding the unique idea and ways to protect it. The type of application filed -- and how, when and where it is filed -- will have an enormous impact on the portfolio's value." Ah yes, our old friend the 5 "double-ewes" that have helped us so much since grammar school. And having addressed these five points in their topical piece, Auth, Chien and Rockman suggest this course of action: "Once an entrepreneur has answered these questions and committed the company to a patent strategy, an additional burden falls on his or her shoulders: vigilance. The entrepreneur must be constantly monitoring the issuance of third-party U.S. and foreign patents and published patent applications in the company's business space: taking notice of competing patents/applications, taking action against them where possible and warranted, and filing a patent suit in federal court if the jurisdictional requirements are satisfied." Read all about global IPR and protecting it in Ins and Outs of Global Patent Strategy . Bonus IP piece o' the day: Firebowls, Copyright And Crowdfunding (Oh My) by Mike Masnick at TechDirt.com . | |||
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| Berkeley Patent Survey Reveals Entrepreneurial Value | |||
| Written by Anthony Dale Kuhn | |||
| IPOsgoode : Brian Chau reviews the findings of a timely Berkeley survey on patents in his recent piece, The 2008 Berkeley Patent Survey , and learns a bit about the merit of entrepreneurial patents when securing venture financing. Chau writes: This report noted a clear quantitative difference in terms of patents held and applied for by firms either with or those seeking venture capital funding. Several competing theories exist on the role that patents play when seeking investments: The first theory is that patents are serving as credible “quality signals” for startup investors that are often associated with future profits. Alternatively, there is also the theory that given the limited information that is generally associated with startup valuation (generally, startups have few assets and little to no operating history), patents provide a good basis to measure profitability. Finally, the patent portfolio of companies may serve as differentiators that help investors pick and choose the companies that are best suited to compliment their acquisition goals. These findings are not exactly surprising, as anu VC is looking for hard evidence that the invested monies will be eventually returned many fold and the fact that a startup has a patent tends to support the case for funding. Chau also notes, "Firms that seek venture-funding appear to be patenting more actively prior to the funding event (and for the purpose of securing funding), and venture-capital investors appear much less willing to fund companies that hold no patents." Such conclusions should help convince startups that seeking a patent is one way to increase the likelihood of securing outside funding. TheDeal.com : Chinese company Geely Holding and Ford Motors are still trying to iron out the details of a possible deal to exchange the Volvo brand but small progress appears to be in the making. Kenneth Klee reports, "Striking an unusual note -- some might say a condescending one -- for a corporate auction, Ford CFO Lewis Booth said that 'Ford believes Geely has the potential to be a responsible future owner of Volvo.'" The concern over the control of Ford's integrated intellectual property is real and well-advised, Klee suggests. "Chinese auto companies, and indeed China itself, have earned all the caution Ford brings to the negotiating table. It was only four years ago that General Motors Co. settled its suit against Chery Automobile Co. Ltd. for stealing a whole car design." Whoopsy-daisy! The whole question of IP in China has become one of the chicken or the egg, as Klee notes. " The conventional wisdom about IP protection in China has long been that the country will get better at it as it develops more of its own IP to protect." You can find out more in Klee's China, intellectual property and Ford if that's your cup of tea. LordsFoundation.com : Aspiring intellectual property types: here's just the thing you need to get your IP chops honed...a contest! Some details for your consideration: The competition is jointly organized by Altacit Global and The Virginia Journal of Law and Technology (VJOLT) in order to create awareness and sensitize academic/student community on Intellectual Property [IP] issues. The competition is open to Law Students of Indian and American Universities, Colleges and Institutions. Altacit Global and the Virginia Journal of Law and Technology (VJOLT) have signed a Memorandum of Understanding for organizing the competition on an annual basis for three years. The Topic for 2009 is “The varying treatment of patentable subject matter”. ( The paper should be a scholarly analysis of the topic and not just a global survey of patentable subject matter.) An Editorial Board of distinguished Intellectual Property academicians and professionals has been constituted to select the winning entries. Winning entries will be considered for publication in the Virginia Journal of Law and Technology at the discretion of VJOLT. On second thought, seeing as the reward is a whopping $500, it might not be worth the time it takes to write a worthy submission. Why not just search the Interweb tubes for a fitting one and dress it up a little and see what happens? Just kidding! I kill me. Complete story here (Warning: *.pdf link). Things are heating up for software and other various types of "pirates" in the island nation of Great Britain according to a recent article at BBC News . From Net pirates to be 'disconnected' : The UK government has been laying out some of the ways it intends to pursue persistent net pirates. It comes as Lord Mandelson confirmed that he would introduce tough measures against illegal file-sharers. Initially pirates could have download caps imposed or have their bandwidth restricted. If that did not prove effective in reducing illegal file-sharing, the government will consider disconnecting them from the network. ISPs are not happy about the bearing the brunt of the expected increased costs in implementing the so-called "ill-conceived" scheme and "argued that it is not their job to police the network, claiming that there are 'mere conduits' of content." To this, "Lord Mandelson said that the costs of enforcing the policy would be 'shared between ISPs and content providers'." Hmm...so customers would end up paying extra money to fight piracy regardless of whether or not they are participating in "illegal" file downloading? Sounds like a recipe for an epic PR fail to me! EurActiv.com : The European Patent Office is bemoaning the fact that the economic downturn still has patent applications in its misery grip. The EPO "has revealed that provisional figures show a fall in patent applications for 2009. The decline began at the end of 2008 and has continued in the first 10 months of this year." And a recovery back to more normal number doesn't seem likely any time in the near future. "While the figures may make for grim reading, experts at an EPO conference in Vienna earlier this month offered a stark prognosis, saying new patent filings are likely to continue to decline even if the economic situation improves." One American official suggests that there could be a gradual return to better days given a longer view of the current speed-bump: "Gerard Torres of the United States Patent and Trademark Office (USPTO) said an analysis of patent filings at his organisation suggests there is usually a lag of about one year between a recession and its effect on patent filings." For the rest of the news on the EPO's patent woes, be sure to read Patents suffer as crisis hits innovation and also scope out the accompanying sidebar for background info. Bonus IP piece o' the day: The University of Richmond's Collegian Independent Student Newspaper features efforts to fight piracy in University responds to complaints of illegal downloads . | |||
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| USPTO Seeks Private Firm To Publicize Data | |||
| Written by Anthony Dale Kuhn | |||
| The 271 Patent Blog : The US Patent and Trademark Office is looking for someone to take its HUGE collection of data and make it available to the public according to a recent piece by Peter Zura entitled USPTO Looks to Reduce "Stress" of Data Delivery, Seeks High-Volume Dissemination for Future . Zura reports on this search for a data dissemination partner: "Currently, the USPTO is looking to unload about 2 petabytes (i.e., 2000 terabytes) of patent-related data sets to an outside vendor in an effort to segregate public data from the examiner systems, and to make 'virtually all public information from the USPTO accessible on the Internet.' Importantly, the PTO wants to make this information free of charge to the public, including current pay-for-service data products (e.g., XML Grants). Also, this change appears to be part of a longer-term 'data dissemination solution' for allowing high-volume dissemination." In exchange for providing a 'data dissemination solution,' the chosen company will be allowed to "to maintain, repackage (add value), distribute, and sell any resulting enhanced data sets and retain any fees collected." Simple as that: tit for tat, USPTO-style. DMCA takedown notices are often fired off to suspected infringers with little thought to the legal validity of said cease-and-desist threats, leaving a wake of discontent behind. There are some who are more infamous than others in their rabid pursuit of IP protection and the good folks at ArsTechnica.com have assembled a rogue's gallery of the best of the worst DMCA takedown barracudas. Nate Anderson offers up EFF opens the "Takedown Hall of Shame" for your reading enjoyment, oh constant and gentle reader. Anderson writes, "The Electronic Frontier Foundation is a big fan of naming and shaming. When it launched its patent-busting project a few years back, the activist group put up a 'Wanted by EFF marshals' poster; eight of the ten patents on the list have already been narrowed, invalidated, or reexamined" and yes, many of the worst takedown notices have been removed or recanted after being proven faulty, but it's still good reading to check out the silliness inherent in many such attempts to silence legal and fair usage of content. One might think that the list would be full of Big Media companies but Anderson notes the domination of the list by a surprising number of "smaller, non-media players like Union Square Partnership, Professional Rodeo Cowboys Association, Uri Geller, Diebold, and DeBeers." "Truth *is* stranger than fiction" they say, and sometimes they're even right. Engineering Library Blog : Sure, the title of the blog doesn't lead one to the idea of intellectual property, but in this case, appearances are deceiving. Lena Sam's recent blog post, Top 10 Intellectual Property Mistakes , points to a particular focus on a matter of importance to all, including engineers, it would seem. Sam writes, "Although this title is written by and for lawyers on intellectual property issues, the writing is easy-to-understand and the bite-sized article format mean that any reader will be able to appreciate the strategies detailed. There is also a substantial appendix with sample agreements and checklists. The authors expertise is mostly in U.S. and international law but the advice is universal, with some of the 12 articles offer sound and practical recommendations specially crafted for the technology industry." The crux of the book is this: "the conundrum that is at the heart of protection of intellectual property, which is its continual tension with disclosure and innovation." Be sure to read the rest of Sam's piece at the above link and see for yourself what you and your company should avoid to help keep your IP house spic and span. A crackdown on the potential dispersal of Soviet intellectual property might keep some academics and intellectuals in the country's universities from taking part in lectures and events in foreign countries according to a recent piece at The New York Times . Ellen Barry reports: Word spread this month among the faculty members of St. Petersburg State University: According to a document signed on Oct. 1, they have to submit their work to administrators for permission before publishing it abroad or presenting it at overseas conferences. The order, which was circulated internally and made its way onto a popular Internet forum, says professors must provide their academic department with copies of texts to be made public outside Russia, so that they can be reviewed for violation of intellectual property laws or potential danger to national security. Yes, of course those dangerous intellectuals will be sharing up state secrets with every lecture. That's not to say that such behavior hasn't threatened Soviet state security in leaner times past. "Even critics acknowledge that the university needs to increase its oversight mechanisms. The Soviet collapse sent scientists scrambling for foreign work, in areas including weapons development." And some of those scientists are involved with foreign lectures and might just let slip and tidbit of knowledge in exchange for a bit of moola, nyet? Read Barry's Russian Professors Chafe at Scholarly Screening for the rest of this developing story. PatentBaristas.com : Day two of the IPCC BIO conference focuses attendees on patent matters of on-going interest including a number of court cases that have bearing on future biotech industry viability/profitability. Stephen Albainy-Jenei's well-titled IPCC: Behind The Scenes Look At Patent Cases takes us inside the conference. On one case of particular importance, Albainy-Jenei writes, "Earlier, the Supreme Court granted certiorari in Laboratory Corp. of Am. Holdings v. Metabolite Labs but — despite being hit with 20 amicus briefs — the Supreme Court turned around and opted out of ruling on the case saying that it had 'improvidently' [Ed. myopically/short-sightedly] agreed to hear the case in the first place and it dismissed the appeal. At that time, thousands of patents on medical tests and genes dodged a serious bullet since the Court could have deemed such tests 'natural phenomena.'" There is more on the Bilski case in the offing and some thought-provoking questions to be examined and pondered so click on through to join in the fun. In the infamous words of once-comic actor Rob Schneider, "You can do it!" Bonus IP piece o' the day: Olympics Trademark Law Insanity: Officials Can Enter Homes, Issue $10,000 Fines by Mike Masnick at TechDirt.com . | |||
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| Imprisoned Patent Holder Seeks Just Desserts | |||
| Written by Anthony Dale Kuhn | |||
| Law.com - Legal Technology Department : A recent piece by Joe Mullin exposes the seldom-seen world of How Much Money a Patent Troll Makes . Althought the focus of the action is on an incarcerated patent holder, the story of monies paid and who the players are behind-the-scenes is a good fit for a future John Grisham legal novel. Mullin writes: "Thanks to an unlikely source -- an Iowa ear, nose and throat doctor currently residing in a federal prison in Wisconsin after being convicted of insurance fraud -- we now know how much patent-holding company SP Technologies collected as a result of filing suit against four leading tech companies: $2.17 million." The ear, nose and throat doctor (officially: otolaryngologist) Peter Boesen in question is currently in the Big House serving time for multiple counts of health care fraud, but that doesn't stop him from wanting his fair share of the patent infringement pie. Here's how the amounts paid, and to whom, came to the light of day: Boesen, whose sentence requires him to make restitution of $931,000, says in his filing (pdf) that he wants to get involved in the Garmin suit because he isn't being adequately represented by Niro Scavone Haller & Niro, the law firm pursuing the litigation campaign launched by SPT using Boesen's patents. According to a receipt (pdf) attached to his filing (p. 23), Boesen's share of the settlements extracted by SPT is $748,500. But Boesen "has never personally received any monies from SP Technologies," he writes in his motion, which appears to have been written on a jailhouse typewriter. He also objects to getting anything less than the full 40 percent cut to which be believes he is entitled, since "fees and expenses were not be a factor in the percentage of gross recoveries paid to aggrieved party/Petitioner." There's plenty more intrigue in this thorough retelling of Boesen's twisted legal tale, and Mullin's full piece at the above link is the best forum to get the rest of the story. ChinaView : U.S. Commerce Secretary Gary Locke is in China wagging his diplomatic finger at local officials in hopes of getting them to bolster the country's weak intellectual property rights according to Mu Xuequan's related article U.S. Commerce Secretary stresses importance of intellectual property protection . Xuequan reports: A sound IP regulatory system should be established to reward and protect innovators, Locke said at the Pearl River Delta International Forum on Innovation and Intellectual Property in the provincial capital of Guangzhou. Guangdong, with the largest number of authorized patents in China for 14 years in a row, has the potential to become the country's innovation center, he said. "The stronger intellectual property laws and enforcement are, the greater the incentive for domestic and foreign innovators to create their products right here," he said. In the past years, China has taken steps to protect IP rights of foreign companies in China, Locke said. That's not to say that there isn't further work to be done in China to protect both domestic and foreign IP, though. Locke explains, "In 2008, China heard nearly 2,500 trademark infringement cases concerning overseas brand owners, up 35 percent year-on-year[.]" Whoops! More polishing is needed before China's IP protection program shine as brightly as Locke hopes it will. The New York Times : The US Chamber of Commerce is seriously pissed off at activist group "Yes Men" and is using US patent and copyright law to try to silence them. Anne C. Mulkern provides further details in her topical piece, U.S. Chamber Sues Activists Over Climate Stunt . She writes, "The U.S. Chamber filed a lawsuit yesterday against activists who last week staged a fake news conference announcing that the business trade group had changed its policy on climate legislation. The suit filed in federal district court cites trademark and copyright infringement and said that the Yes Men group staged the press conference stunt for financial gain." Indeed the Yes Men group admits to copying parts of the US COC's website for use in its campaign to draw attention to the Chamber's on-going fight against a Senate bill that would enact measures to reduce US carbon output. The Chamber has suffered a number of prominent defections from its ranks, including Apple Computer, which decided to quit the US COC because of its stance on the pollution-reducing Senate bill. The Yes Men claim their use of the US COC's intellectual property is protected under freedom of speech and is fair and acceptable under the law. Whether or not the legal system agrees with them is yet to be seen. PatentBaristas.com : Patent re-examinations are the topic of the day at the BIO IPCC Conference and the ever-vigilant Stephen Albainy-Jenei is on hand to help the gentle reader learn more. From his blog post, Patent Reexamination in the Life Sciences , Albainy-Jenei offers his view of the conference's current focus. "At today’s session of BIO’s IPCC Conference, Gregory Morse of the Central Reexamination Unit of the US Patent and Trademark Office gave a presentation of the process for handling re-exams. Comparing ex parte and inter partes, Morse showed that the time for processing to first action is inching up although inter partes proceedings have not been around enough to give a good picture. He did say that the branch typically is made up of the best of the best examiners so quality of examination and proceedings is very high." That is the opening paragraph of a more thorough look at the implications of re-examinations with there being at least 2 sides to the issue. Read the rest of the piece at the above link to learn why patent re-examinations can work both for and against the requester. The 271 Patent Blog : Blogger Peter Zura offers his take on a published paper that "analyzed the potential effects of a post-grant review procedure (opposition) in the U.S." in his recent entry, Study Concludes U.S. Would Benefit From EPO-Style Opposition . Zura offers more details of the paper's findings: EPO opposition rates of the twins of U.S. litigated patents are about 3 times higher than for non-litigated patents (20% versus 6%). Not surprisingly, EPO applications relating to litigated patents are broader in scope, have more claims, contain more references to earlier patents, and receive more citations from subsequent patents; And this, too: The European model tends to exclude equivalents of litigated U.S. patents due to an increased likelihood of opposition, and not by virtue of lower grant rates, or less favorable opposition outcomes; But that's not to say the US model doesn't have its merits, some would argue. All those in favor of a US post-grant review program that models the EPO's raise your hands. Or leave a comment. Or silently fail to be counted in the great US PGR debate of October 2009. Have it your way. Bonus IP piece o' the day: Reuters.com 's news release: ICAP Ocean Tomo Engaged to Exclusively License Intellectual Property Portfolios from Lawrence Livermore National Laboratory on Behalf of Lawrence Livermore National Security, LLC . | |||
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| Pay-to-delay Deals By Big Pharma Disgusting And Shameful | |||
| Written by Anthony Dale Kuhn | |||
| PatentBaristas.com : Ever hear of the notorious Big Pharma pay-for-delay settlements? Neither had I until I read Stephen Albainy-Jenei's related blog entry, Senate Judiciary Committee Passes Amended Bill Banning Pay-For-Delay Settlements . Here's the introductory paragraph to kick things off: "The U.S. Senate Judiciary Committee voted to pass a compromise version of the bill by members Herb Kohl (D-WI) and Chuck Grassley (R-IA) banning pay-for-delay settlements that keep generic drugs off the market. The “Preserve Access to Affordable Generics Act (S.396)” is an attempt to reduce the anti-consumer practice of brand-name drug manufacturers using pay-off agreements to keep cheaper generic equivalents off the market by making the practice illegal." One of the more interesting findings of the Senate Judiciary Committee is this gem: "4. [T]he FTC found that 1/2 of the settlements made in 2006 and 2007 between brand name and generic companies, and over 2/3 of the settlements with generic companies with exclusivity rights that blocked other generic drug applicants, included a pay-off from the brand name manufacturer in exchange for a promise from the generic company to delay entry into the market." What the wha...?! Ah, yes. Let's make drugs to take care of sick patients and increase their well-being and health. Oh, wait. That's not the goal at all: Let's make oodles of money while sticking it to ill and injured human beings who must pay our outrageous prices created through underhanded dealings. That's more like it. the Gov Monitor : James V. DeLong, vice president and senior analyst of the Convergence Law Institute, LLC, and special counsel in the Washington, D.C. office of Kamlet Reichert, LLP, writes on a different battle currently facing the biotech industry in his recent topical piece entitled U.S. Biotech: Intellectual Property Rights And Lack Of Funding . DeLong's piece is lengthy and comprehensive in its argument for strong intellectual property rights and is sprinkled with a bit of old-fashioned humor to keep the gentle reader entertained. The meat of his train of though is this: Several legislative proposals in the House opt for 12 to 16 years of exclusivity, and the Senate Health Committee has approved 12, but Chairman Waxman favors zero years and has introduced a bill providing for five. The administration, relying on the FTC Report, proposed a “generous compromise” of seven. At bottom, of course, this debate is simply another manifestation of the never-ending debate over the proper level of protection that should be given intellectual property, and of the search to find a middle ground between the one pole of excessive deference to inventors and the other of killing R&D geese before they ever get a chance to lay golden eggs. Ah, yes, that old IP protection bugaboo: balance. There are those who would suggest that "more is *always* better" when it comes to such protections of intellectual property, especially in the very expensive business of biopharm R&D, but as must be the case with any balancing act, at what cost to innovation and the free exchange of ideas? TechDirt.com : There are those writers who are not afraid of taking a peek under the IP kilt now and then. In his latest diatribe against patents, and in this case, those who "hoard" them, Mike Masnick exposes the way these companies monetize their IP assets. From his topical piece, A Look Behind The Curtain: How A Patent Hoarder Makes Money , Masnick reports: "Last year, we covered how it was becoming increasingly common for patent hoarders to play this neat trick where they sue a bunch of companies and promise the ones who settle quickly a cut of what they can get from the others. This sets up a little an interesting game theory situation, whereby companies have extra incentive to settle quickly, which makes the patent holder very happy, and which they use to tout how "legitimate" their patents must be (yeah, right)." The instance of note in this case "is the sum paid by Apple to settle an SPT suit brought over the iPhone in the Eastern District of Texas in 2008: $865,000." For the rest of the details in this ire-inducing situation, just be sure to check out the whole story in Masnick's above-linked story. Reuters.com : A recent decision by the USPTO "to issue a Re-examination Certificate in connection with ExonHit's US Patent n° 6,881,571" has the company pumped up. From ExonHit Strengthens Its Intellectual Property Position in the US : "'This decision by the USPTO strengthens ExonHit's IP position and the validity of this patent has been confirmed for the second time in the US. ExonHit holds an equivalent European patent that was granted by the European Patent Office without opposition,' commented Dr. Loïc Maurel, M.D., President of the Management Board of ExonHit Therapeutics. 'This decision rewards ExonHit's determination to defend its intellectual property.'" Here are a few sentences by way of a backgrounder for the interested reader: "The Company is applying its proprietary technology, based on the analysis of alternative RNA splicing, to develop innovative molecular diagnostic tests and therapeutics for neurodegenerative and cancer indications. ExonHit has a balanced investment strategy with internal development programs and strategic collaborations, in particular with bioMérieux and Allergan." Score one for ExonHit and their battle to make very specialized and patentable tests to help fight these prevalent sicknesses. AFP via Google News : The United States is encouraging India to firm up its policies on intellectual property rights according to a recent AFP piece. From the aptly titled US urges India to tighten copyright laws come further details of the Sisyphean task awaiting Mr. Kirk: US Trade Representative Ron Kirk urged India on Monday to tighten intellectual property rights and reduce import tariffs to help build on growing trade ties between the countries. Kirk, in New Delhi for the sixth US-India Trade Policy Forum, said discussions with his host, Indian Commerce Minister Anand Sharma, focused on "some very honest areas where we have room for improvement." He added: "Outstanding issues on which the US has asked for more attention from India include improving of its intellectual property rights regime." Such a move would also help American creatives invest energy into making their products legally available in India, not to mention the benefits to more local artistic endeavors. "This would give 'greater comfort to American entrepreneurs and investors in the creative services area,' Kirk said, adding that India's prolific Bollywood film industry meant it was in its own interest to clamp down." Kirk is timing his visit in advance of "Indian Premier Manmohan Singh's November state visit to the United States" in hopes that a dialog can be started to get the Indian IPR ball rolling in a direction favorable to Western interests, methinks. Bonus IP piece o' the day: Blackboard patent brawl could head to Supreme Court by Darlene Darcy at the Washington Business Journal . | |||
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| Nokia Sues Apple For Copyright Infringement | |||
| Written by Anthony Dale Kuhn | |||
| CNNMoney.com : Nokia has decided to get serious with its intention to sue Apple for infringing on a number of its patents according to Hibah Yousuf in her topical piece entitled Nokia sues Apple over iPhone . Hibbah reports: Cell phone giant Nokia Corp. filed a lawsuit against Apple Inc. on Thursday, alleging that its iPhone infringes on its patents. Specifically, the Finland-based company said Apple (AAPL, Fortune 500)'s iPhone violates 10 patents covering wireless data, speech coding, security and encryption. Nokia, which filed the suit in the Federal District Court of Delaware, attests that the technologies have been used in every iPhone model shipped since the smartphone was introduced in 2007. Nokia comes to this particular IP battle heavily armed with what it calls "'one of the strongest and broadest' patent portfolios in the industry." So far this accusation by the Finnish cell phone manufacturer against Apple has had limited financial implications. "Shares of Apple were down less than 1% on the news, while Nokia's were up 1.46% in midday trading..." but there *are* huge monetary implications should Nokia actually collect on the 1 billion dollars it is seeking for Apple's rumored infringement. Reuters.com : Ford is still gun-shy when it comes to selling luxury brand Volvo to China-based Gheeley Holding because of potentially valid fears that the intellectual property inherent in the deal will compromise its global market share of automobile sales. Don Durfee reports: Geely Holding's attempt to buy Ford Motor Co's (F.N) Volvo car unit is in danger of stalling over disagreements about intellectual property rights, a source close to the talks said on Wednesday. Representatives from Ford and Geely, parent of Hong Kong-listed car maker Geely Automotive (0175.HK), have been discussing a sale, for around $2 billion, since early this year. The latest talks, being held in London, are focused on the U.S. car maker's concerns about sharing its proprietary technology and plans for new products, said the source in response to a Reuters query about an earlier Bloomberg report. Although Ford is desperate to rid itself of non-core brands to refocus on making and selling bread-and-butter sedans like the perennially best-selling Taurus, it is unwilling to forgo assurances that doing so will not end up being a boner akin to being hoisted on one's own petard. Be sure to read Durfee's UPDATE 1-China's Volvo bid may stall over intellectual property for more on Ford's on-going search for the perfect Volvo bride. AMEInfo.com : The Middle East doesn't immediately spring to mind when the subject of intellectual property or its protection is brought up but an event later this month hopes to change that state of affairs. From the topical article, Arab Strategy Forum to highlight role of intellectual property rights in Arab world , come more details on this much-needed change in the Middle East's place among the world's IP heavyweights. "The Mohammed bin Rashid Al Maktoum Foundation announced today that 30 eminent intellectuals, and 200 thought-leaders, will provide critical insights into the state of intellectual property rights and its role in the region's economy, at the first in a series of seminars to mark the Arab Strategy Forum, a crucial platform for policy makers to network and share expertise on economic, geopolitical, social and cultural issues." Historically, the Middle East has not been particularly concerned with maximizing its protection and monetization of IP but that's changing. "The elite panel of speakers will also provide definitive points of action for the Arab World and focus on why Arab countries have not made full use of the exceptions and provisions, for flexibility, in the World Trade Organisation's Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement of 1994, which governs all countries in their dealings on intellectual property issues." Never too late to start a good thing, nu? The ASF meeting will be held in Kuwait on the 28th and 29th of October this year. Al Bawaba.com : The Arab Strategy Forum on IPR is not the only event in Kuwait that aims to increase awareness and enforcement of IP laws. From BPG enters Kuwait to enhance anti-counterfeiting efforts in the Gulf come more details of this welcome effort. "The Brand Owners Protection Group (BPG) is entering Kuwait for the first time to reinforce its continuous anti-counterfeiting initiatives across the Gulf region. In cooperation with the Kuwaiti Customs, the BPG is organising its inaugural training sessions in the country which are poised to educate 100 inspectors from Kuwait Customs on the procedures of combating counterfeit trade. The training sessions, slated for October 26th and 27th, are the first of their kind to be arranged by the BPG or any independent brand protection organisation in Kuwait." Conveniently, the training sessions are being held just before the ASF event, which should make it easier for concerned individuals to attend both IP-related venues. "This event carves a milestone in the history of the BPG and illustrates the organisation’s determination and hard work to protect the rights of brand owners and consumers across the GCC region. Represented by leading multinational companies from the food and beverage, fast-moving consumer goods, telecommunications, and automotive spare parts industries, the BPG is dedicated to spreading awareness on the harmful socio-economic impacts of the illicit trade of counterfeit goods and mitigating these effects through education, prevention and constant vigilance." Hear, hear! TechDirt.com : There's good news for Vermont's Rock Art Brewery and owner/brewmaster Matt Nadeau in Mike Masnick's recent blog post, Monster Energy Drink Backs Down Due To Public Pressure; Vermonster Beer Lives On . Masnick writes, "You may recall that we recently wrote about the effort by Hansen's drink company to stop a small Vermont brewery from offering Vermonster Beer, claiming that it infringed on the trademark they held for Monster Energy Drink (because any moron would confuse beer with an energy drink). That situation got a ton of publicity (all of it negative towards Monster Energy Drink and Hansens), and Brendan alerts us to the news that it looks like Hansen's has backed down . And the guy behind the Rock Art Brewery (maker of Vermonster) has put up an open letter with the timeline of events (pdf) -- thanking everyone for creating the public pressure that got Hansens to back down." This welcome return to trademark sanity does nothing to quell organizations such as hired IP gun Continental Enterprises and Nadeau hopes people will take this small victory to higher heights. Masnick says Nadeau "is asking how we can continue to use the community that came together to help him to do more to protect other small businesses from the same thing. As a starting point, why not point them to these other abuses by Hansens and CE and get Hansens to back down?" Can anyone offer any useful commentary to these events or this piece? Bonus IP piece o' the day: JSonline.com 's John Schmid presents No quick end to backlog in sight on the on-going problem of USPTO patent pendecy and related troubles. | |||
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| How To Bootstrap Intellectual Property Protection | |||
| Written by Anthony Dale Kuhn | |||
| TechOat.com : Cecily O’Regan, registered patent attorney and member of the Intellectual Property & Technology Group at Greenberg Traurig LLP, recently penned a very thorough and thought-provoking piece on Getting the most out of a bootstrapped IP budget . In it, O'Regan offers a cornucopia of helpful hints for maximizing limited IP dollars including this gem: "Request reporting communications by email: In an increasingly electronic world, email is both expedient and convenient. It also reduces the amount of photocopying charges and eliminates the cost of postage or courier charges. Over time, the reduction adds up. As an added benefit, it’s easier for small companies that lack administrative staff to manage the mountain of papers associated with patent filings – not to mention deadlines. Just be sure to take extra care when addressing the emails, so an attorney-client communication is not inadvertently sent to the wrong email address." There are many other such winning suggestions at O'Regan's above-linked piece, so be sure to check it out in its entirety to get all her helpful hints. YourBrandPlan.com : Here's an opportunity to purchase millions of dollars worth of venture capital in the form of a failed search engine's intellectual property. From TechCrunch.com 's SearchMe’s Intellectual Assets Being Broken Up And Sold In Parts : "Lighthouse is seeking a buyer for the SearchMe’s Assets, in whole or in part. Interested parties may bid on all or any part of SearchMe’s brand name, core technology, front-end user interface, or back-end search and advertising architecture, enabling the purchaser to leverage SearchMe’s brand name, core technology, front-end user interface, and/or back-end architecture, to establish an Internet search engine with a visual approach, to enhance the user interface of an existing search engine, to leverage the potential relevancy improvements. " This fire sale includes "SearchMe’s visual search user interface, search relevance algorithm, a total of 23 patent applications, its brand and trademarks, thumbnail server, visual advertising technology, and more." Worth a peek if you think you can leverage any of those items to profitable use at your nascent search engine startup, nu? IP Asset Maximizer Blog : Is there a perfect Open Source IP storm brewing that could propel your company pell-mell into huge profits? Jackie Hutter thinks so and recommends finding a way to harness the huge potential of this coming windfall in patent profitability in her topical piece entitled The Coming Explosion of the Patent Monetization Market: Brought to You by Open Innovation and What Needs to Happen in Order to Speed Up the Process . She writes: In truth, most unused patents effectively lie fallow today even if they cover potentially valuable products and technology. The problem is that there are many more potential sellers of unused patent rights than there are buyers today. I believe that the market for patent licensing and monetization is poised to explode, however, as Open Innovation becomes the de facto management philosophy at more and more US companies. Rather than “baking” products and technology “from scratch” inside their own organizations, we will soon see more companies adopting an externally-facing innovation acquisition strategy. As a result, we will see more companies searching for “half-baked” ideas that can be brought into their organizations and “cooked” to their company’s specifications. Using a hypothetical telephone conversation with "Bob," a Fortune 10 technology company manager who is seeking to make a fortune by beating other entrepreneurs to the Open Innovation IP punch, Hutter suggests that the forward-looking startup founder will begin now to capitalize on the certainty of future growth in patent purchasing and resultant licensing fees. 12:01 Tuesday : The US Army has had its fair share of flub-ups over the years, and although this particular boner doesn't rate highly on the "What the wha.?!" scale, it does raise some questions as to the procurement process. Aaron R. Feigelson reports: You may recall the brouhaha back in the Reagan era when it was discovered that the Navy had purchased some very expensive ($600) toilet seats. I remember comedian Emo Phillips around that time joking about his letter to the IRS, noting that the value of the paper clip he’d used to attach his check should cover any deficiency in his return, based on Pentagon spending figures. Today, it appears the Army may have bought some much more pricey toilet paper to match the Navy’s purchase. How? By obtaining a patent that expired five years before its issuance. Yes, I do seem to recall the foofarah surrounding the infamous $600 crapper cover but it pales a bit in comparison to purchasing a patent some years after its expiration. Military intelligence, indeed! Read the rest of the details of this shining example of tax payer dollars misspent in Feigelson's amusing Be All You Can't Be: Army Patent Ambushed by Friendly Fire . And wrapping up today's interesting IP news bits is this item: Nokia Sues Apple, Says IPhone Infringes Patents (Update3) by William McQuillen and Diana ben-Aaron at Bloomberg News . Here's the good part for your reading enjoyment: "In the suit filed in federal court in Delaware, Nokia claims all Apple iPhone models use Nokia’s technology which covers wireless data, speech coding, security and encryption. Ten patents are named in the lawsuit, Nokia said. Nokia said it has made efforts to license the technology to Apple, though Apple 'refused to compensate Nokia,' the company said in the lawsuit." And so Nokia is hoping for payments totalling up to $12 per infringing unit, which does nothing to dampen investors' enthusiasm for Apple's future prospects for tech segment dominance. "Nokia, which didn’t specify what royalty it is seeking, could ask the court for a royalty of up to 2 percent from iPhone sales, said Gene Munster of Piper Jaffray & Co. 'Ultimately, the resolution is uncertain, but even the most extreme scenario' of $12 a unit, 'which we believe is unlikely, would not change our positive thesis on the iPhone and Apple,' Munster wrote." Bonus IP piece o' the day: Apple Applies For Free Ad-Supported OS Patent at Gizmodo.com by Danny Allen. | |||
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| Intellectual Property Protection Takes Spotlight In The Philippines | |||
| Written by Anthony Dale Kuhn | |||
| BusinessMirror : Over in the far-away Philippines Island chain, intellectual property rights are getting a much-needed boost by a prominent personage: Atty. Adrian S. Cristobal Jr. In his topical opinion piece, IPR Week 2009 , Christobal Jr. writes: "'Presidential Proclamation 79 (1992) declares the last week of October every year as “Intellectual Property Rights Week.' The proclamation states that 'patents, trademarks and copyrights have gained universal importance' and 'government policies related to Intellectual Property Rights [IPR] would have far-reaching economic implications on our trade relations with our trading partners.'" To kick things off in the spirit of the proclamation, there are a number of events planned including, "the awarding of the first-ever IP Innovation Award during the annual Philippine Business conference. Called the Ambassador Alfredo M. Yao Intellectual Property Innovation Award, this joint project of the Philippine Chamber of Commerce and Industry (PCCI) and IP Philippines is meant to encourage innovations." And the introduction of some new IP legislation for consideration: "[O]n this occasion, the IP community will formally present to the Chief Justice a draft of special IP litigation rules for the Supreme Court’s consideration. These 'streamlined' procedural rules, painstakingly crafted by a multi-sectoral constituency, aim to hasten the litigation process of cases that infringe on patents, trademarks and copyright in court. Gaps and loopholes in the present Rules of Court as they apply to IPR infringement will, hopefully, be plugged by this new set of rules." Good news for entrepreneurs, innovators and inventors in the Philippines, don't you think? The Wall Street Journal : A delegation of US persons of importance is traveling to the Far East to tighten the intellectual property enforcement thumbscrews on a few laggards according to a recent Dow Jones MarketWatch piece. "Senior U.S. officials will travel to China next week to push for stronger enforcement of intellectual property rights and other trade priorities. U.S. Trade Representative Ron Kirk, Commerce Secretary Gary Locke, and Agriculture Secretary Tom Vilsack will meet with their Chinese counterparts next Wednesday and Thursday in Hangzhou for the annual U.S.-China Joint Commission on Commerce and Trade, or JCCT. Vice Premier Wang Qishan will lead the Chinese delegation. 'The first JCCT under the Obama administration provides an important opportunity to engage China on trade concerns impacting American companies,' Locke said in a statement Wednesday." Locke is already on a roll with his aggressive promises of USPTO reform and this visit to China should help "U.S. plans to pursue a 'strong and smart' policy toward trade with China." Check out US To Press China On Intellectual Property Rights, Trade for more on this doomed mission. MonstersAndCritics.com : The European Union is also interested in getting Asian nations to better protect intellectual property rights and is putting its money where its mouth is according to a topical piece by an unknown Deutsche Presse-Agenteur author. Our mystery writes reports from Bangkok: "The European Commission on Wednesday provided 4.5 million euros (6.7 million dollars) to the Association of South-East Asian Nations (ASEAN) to help protect intellectual property in the region, where piracy is rampant. 'This is laying down some fundamental elements that would move us further towards the eventual goal of a free trade agreement with the EU,' ASEAN secretary-general Surin Pitsuwan said after accepting the European Commission (EC) funding. The European Union has put on 'pause' negotiations to sign a free trade agreement (FTA) with ASEAN after failing to reach a commitment from the regional bloc for a comprehensive and 'ambitious' pact." A-ha! Play it our way or don't play it all is the name of the game. For the rest of the story, be sure to read EU gives ASEAN 4.5 million euros for intellectual property project , and learn how using both the carrot and the stick can be advantageous to IP protection abroad. TechDirt.com : What the wha...?! The maker of a novel alarm clock has taken to sending cease-and-desist notices to people try to resell the items because of claims of a "serious violation of the company's rights." Whatever that means. Mike Masnick hopes to clear things up for the gentle reader with his related piece, Nanda's Alarm Clock Not Only Runs Away From You, It Runs Away From eBay Too . He writes: It looks like more tangible product companies are trying to pretend they can restrict what you do with legally purchased products post-sale (perhaps they're jealous of content companies). Case in point: my brother received the Nanda Clocky as a gift awhile back -- it's a pretty novel alarm clock, when it goes off, its wheels turn on, and it jumps off your dresser, forcing you to climb out of bed to turn it off. Since he already had an alarm clock that worked for him, he decided to sell it on eBay. A few days before his auction was supposed to close, he got a notice that his listing was removed for a "Trademark Violation - Unauthorized Item." Yes, for a legitimately owned product. The email stated: "Nanda Home Inc. is the owner of the intellectual property rights pertaining to these listings. By listing the 'Clocky' product you are in serious violation of the company's rights. Additionally, Nanda Home does not permit the re-sale of any of their brand product on eBay. There are no authorized Nanda Home re-sellers on eBay. If you continue to list our items, further legal action may be taken." Clearly, Nanda has a gross misunderstanding of the right of people to re-sell their own property. While it's true that it is against the law to sell counterfeit copies of a product, re-selling your own goods and representing them as "real" is completely within the bounds of the law, and eBay policy. Sounds a little loopy to me, too, Mike. After all, a company does not have the rights to keep people for selling items after they have purchased them. Or do they? There's that little bugaboo known as "the right of first sale" which clearly has allowed the owners of a given product to resell them. Should Nanda have the ability to keep its products from being resold on sites such as eBay and Craigslist.org? Methinks not. Mark Logic CEO Blog : Dave Kellogg, CEO of Mark Logic Corporation, willingly takes the constant reader on a rollercoaster ride through a complex and dense intellectual property lawsuit in his recent piece, Gartner Sued Over Magic Quadrant for Alleged Damages of $132M plus Punitives of $1.3B . Kellogg sets the stage: "ZL Technologies, a San Jose-based IT company specializing in ... enterprise software solutions for e-mail and file archiving, is challenging Gartner Group and the legitimacy of Gartner’s 'Magic Quadrant.' In a complaint ... ZL claims that Gartner’s use of their proprietary 'Magic Quadrant' is misleading and favors large vendors with large sales and marketing budgets over smaller innovators such as ZL that have developed higher performing products. The complaint alleges: defamation; trade libel; false advertising; unfair competition; and negligent interference with prospective economic advantage." What follows is an in-depth review of the case and related documents that should act as a quick soporific if not a few hours' reading for the interested IP aficionado. Read on and doff your dunce caps...it's gonna get thick in here. Bonus IP Piece O' The Day: Mischa Barton in trademark battle with handbag company over her name at News.com.au . | |||
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| USPTO Leaning Towards Arti Rai For External Affairs Posting | |||
| Written by Anthony Dale Kuhn | |||
| The 271 Patent Blog : Professor Arti Rai. Love her or hate her, it looks like she's on the way to becoming the next Administrator for External Affairs at the dearly beloved US Patent and Trademark Office. Peter Zura has some comments on this move in his recent, topical blog post, Arti Rai Heads to USPTO; More Patent Reform News . Zura writes: "While being well respected in academic circles, Rai has been a controversial figure on the patent front (see, e.g., "Professor Arti Rai to the Patent Office? I Sure Hope Not!" ( link )), particularly for her strong endorsement of the PTO's patent continuation rules; a copy of the 'law professor amicus brief' - cheekily referred to as the 'dirty dozen' brief - in support of the rules can be downloaded here ( link ). Also, contrary to the beliefs of many in the patent bar, Rai argues that the patent system would benefit from the USPTO having more control over rulemaking authority (link). Finally, Rai also supports the idea of creating a 'gold-plated' patent system applicants, where the "clear and convincing" validity standard would be applied only to patents that have undergone a more rigorous (and expensive) examination process." Be sure to read the rest of Zura's piece for the details on other changes afoot at the USPTO. The Washington Post : The USPTO is in the news again, this time for a good reason, though. Ed O'Keefe reports: "...[T]he PTO took an encouraging step Friday, when patent examiners approved changes that help determine how long they have to complete patent examinations and the incentives they earn. Kappos got the ball rolling shortly after he arrived by getting agency officials and union representatives into a room to draft changes to the 'count system' for the first time in more than 30 years. 'I locked the door and said, 'I want a new system that does no harm to our employees, that gives examiners more time to do their work, that incentivizes parts of the process early in the process,'' he said. Kappos also promised to meet with negotiators every week while they worked on the changes and mandated an Oct. 1 deadline. Then, he said, he walked out of the room." An since that time, much progress has been made. A former PTO chief has nothing but rave reviews for Kappo's "get 'er done" attitude. "Todd Dickinson, former director of the PTO and current president of the American Intellectual Property Law Association, said Kappos 'not only comes with a lot of good will, but his early steps have been very sure-footed on just exactly the kinds of things the [intellectual property] community wants to see.'" Check out the rest of the story in O'Keefe's New boss moves quickly to change sluggish Patent Office from the Federal Diary department. The Wall Street Journal : A Chinese automaker is scurrying to distance itself from the notorious theft of intellectual property by one of its employees, according to a recent piece by Patricia Jiayi Ho. Ho writes: Beijing Automotive Industry Holding Co., in its first comments after a high-profile arrest of one of its employees in an industrial espionage case, asserted its respect for intellectual property rights. The statement from the auto maker, China's fifth largest by sales volume, appeared to be an attempt to pre-empt suggestions that it may have benefited from the alleged theft of trade secrets from Ford Motor Co. Beijing Auto said it is closely watching the case involving its employee, Yu Xiangdong, also known as Mike Yu, who last week was arrested and indicted in the U.S. on charges he stole trade secrets from Ford. Hu is accused of copying thousands of industrial secrets to a portable hard drive while working at Ford Motor Company where he worked as a product engineer. This very problem is keeping Ford from selling Volvo to the Chinese: the theft of very valuable IP that cuts across many of its primary vehicle platforms and which would certainly cut into market share should the IP be pirated. Beijing Auto distances itself from Yu for the win. Bloomberg.com : In a related article, Keith Naughton and Cathy Chan detail exactly where the Ford Volvo sale process lies, and from all appearances, things do not look promising for a quick resolution to on-going concerns about intellectual property security. "Ford Motor Co.’s 10-month effort to sell Volvo to China’s Geely Holding Group Co. may fall apart within days as the companies struggle to agree on intellectual property rights, two people familiar with the talks said." The main concern can be summed up thusly: "Any buyer would gain insight into Ford’s future products, which will still share Volvo technology and mechanical vehicle designs, the people said. Ford wants assurances that Geely will keep new-model blueprints secret, the people said." And due to incidents exactly like the one detailed in the above piece from the Wall Street Journal, Ford would be wise to think twice about selling of one of its integrated brands to a company in a nation not known for superior IP protection and enforcement. If you fancy some more information on this troubled sale, be sure to read Naughton and Chan's Ford, Geely Negotiations on Volvo Sale Said to Falter (Update2) . The Associated Press : Sometimes patent lawsuits backfire, and in this case, badly. From Interdigital shares fall after patent setback : "Shares of wireless technology developer InterDigital Inc. fell Monday after the International Trade Commission rejected the company's claim that Nokia Corp. phones infringe on InterDigital's patents." InterDigital had high hopes for its claim that one of the world's largest cell phone makers was infringing on one of its primary IP assets but after being rejected, the company not only lost a bit of face, but some not-insignificant market capitalization share, too. And because the referenced article comes courtesy of AP Wire via Google, I have to be careful with my quoting because AP does not play nicely when it comes to protecting their articles. Read the original for your very own self if you want more words. Bonus IP piece 'o the day: Ambulance Chasing Lawyers Of The IP World by Justin Levine at Against Monopoly . | |||
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| Realtors: Think Twice Before Copying That Website | |||
| Written by Anthony Dale Kuhn | |||
| BloodhoundRealty.com : Who would have thought intellectual property theft was rampant in the real estate business? "Rampant" might be a bit overwrought but "rife" might fit the situation in a pinch. Eric Blackwell's Intellectual Property Theft for REALTORS - a primer on what not to do lays out the story behind this seldom-considered bastion of IP misappropriation: "One of the things that I watch REALTORS do time after time is to 'help themselves' to other peoples' intellectual property (or have their hired folks do it) and then fight arrogantly when they are informed about it. Most times it starts as an innocent thing where the REALTOR is unaware of it and ends with the REALTOR losing significant time and money." Blackwell goes on to give a few examples of how this theft if perpetrated, and in some cases, unwittingly assisted by a well-intentioned webmaster who is just trying to "make it look EXACTLY like that." "THAT" being another realtor's hard-won website paid for with lots of cash. I suppose it's one thing to incorporate an idea into your website, but it's another altogether to copy it lock, stock, and barrel. ArsTechnica.com : SCO's ill-fated battle against the open-source Linux operating system has come home to roost according to a recent piece by Ryan Paul. Here's the gist of the matter: "In an SEC filing published today, SCO revealed that CEO Darl McBride has been terminated and is no longer with the company. The decision to fire the controversial CEO is part of a restructuring plan that is based on recommendations made by the Chapter 11 trustee who was assigned to SCO by the justice department." Mr. McBride seems to have barked up the wrong tree when he went after corporate users of the Linux OS and certainly resembled Chicken Little, or maybe even the Little Boy Who Cried Wolf. Here's why: "He claimed that the open source operating system infringed on SCO's copyright and included a significant quantity of code stolen from UNIX System V. On the basis of this claim, SCO threatened to sue a multitude of corporate Linux users and demanded hefty licensing fees. During the ensuing litigation fiasco, an internal SCO memo was revealed which indicated that SCO's own internal code audits of Linux found no actual evidence of infringement. The courts eventually determined that SCO never even owned the relevant UNIX copyrights in the first place." A-ha! And so, hit the road, Jack, and good riddance to bad rubbish. SCO fires CEO Darl McBride, architect of litigation strategy for more details of the dastardly deeds done dirt cheap. The TTABlog : In the latter part of the past week, USPTO Director and Under Secretary of Commerce for Intellectual Property David Kappos shared his thoughts on some fraud and trademark issues near-and-dear to the hearts of lawyers. Here's what he had to say, courtesy of John L. Welch's New USPTO Director David Kappos Comments on Fraud and Other TM Issues : We’ve started on an ambitious project to modernize our TM IT systems. Our goal is for practitioners to be able to keep dockets on-line, have real time access to application and registration files, receive reminders and updates from the USPTO and have web services tailored to a practitioners’ level of expertise. As a practical matter, the Office is seeing an increasing number of applications with huge lists of good and services, in both use and intent-to-use cases. Examining attorneys have a limited set of legal and practical tools to deal with such applications. And a use-based trademark system falls apart if the statements of use are unreliable. I have asked our TM management to engage trademark owners and the trademark bar in discussions on this matter. We look forward to reaching a long-term solution that works for the Office and the applicant community. Kappos appears to be making some serious movements to get the ball rolling towards an updated and more open approach to patents and trademarks, and his comments at the AIPLA meeting reinforce this effort. Then why does Kappos look so stern in his official mug shot, which you can peep at the above linked article? Reuters.com : A UK company has filed for a potentially revolutionary method to reconnect water mains back into service without disrupting the surrounding materials. From the very descriptively titled Aqualiner Files a Patent for Its Non-Disruptive Method for Remaking Service Connections Following Drinking Water Main Rehabilitation : Aqualiner Limited, a company commercialising a unique next generation trenchless pipelining technology for the water and sewerage markets, announces that it is developing a method that enables side connections and laterals to be reconnected underground without having to dig the road up. The Company has filed a patent application covering the method of installation. The new Aqualiner method involves the melting of a thermoplastic side connection into the liner thereby avoiding any complicated mechanical joints or chemically bonded solutions. The significance of this breakthrough is that water pipes can be structurally rehabilitated and service laterals or side connections made underground from within the existing pipe. This eliminates the need to dig down to facilitate any side connections and will make the Aqualiner`s Rembrandt process a truly trenchless process. By utilizing this new method the overall project cost will also be significantly reduced. It is estimated that the reinstatement of service laterals by excavation can increase a project cost by up to 50%. And naming it after a beloved and famous artist can't help but increase the popularity of this method among plumbers and utility workers everywhere. Can it? In a second press release at Reuters.com, a converged communications company has scooped up the intellectual property rights (IPR) of another industry-related business. From IP Gallery Purchases the Intellectual Property Rights of Personeta we gather more information on this breathtakingly exciting development. IP Gallery - an innovative company designing, developing, and delivering converged communications solutions and multimedia applications, announced today that it has acquired the Intellectual Property Rights (IPR) of Personeta and its flagship product, TappS(TM) NSC. The Personeta acquisition reinforces IP Gallery's end-to-end service delivery platform with additional multi-media applications. The intellectual property acquired will be combined with IP Gallery's converged communications platform, which will accelerate the introduction of next generation IP and IMS based applications. Personeta was a leading provider of converged communications solutions for service providers. Its award winning products were key in redefining how services are developed and delivered to both businesses and consumers. What we need here are more acronyms and military-esque abbreviations to help the layperson understand this ground-breaking breakthrough, don't you think? Man, there's not so much IP news of note today, so you'll have to bear with me as I attempt to spice things up a bit. | |||
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| Microsoft Already Losing The Piracy Battle Over Windows 7 | |||
| Written by Anthony Dale Kuhn | |||
| The New York Times : Microsoft is releasing its latest Windows operating system next week, known as Windows 7, but there are advanced, pirated copies available for a a few dollars if you know where to look. Like, say, in China. Via Reuters' Software Pirates in China Beat Microsoft to the Punch come more details: "People in mainland China have been able to buy pirated copies of the newest version of Microsoft’s Windows franchise this month for just 20 yuan, or $2.93, each — a fraction of list prices, which are as high as $320." And if you think Microsoft's previous efforts to curb Windows XP piracy in China are making any kind of difference, think again. "The U.S. research firm IDC estimated that about 80 percent of software sold in China last year was pirated. While that figure is falling, it is still double the global average and about four times the average in developed markets like the United States and Japan." One reason is due to the relatively high price of Microsoft's operating system software, which works out to about 4 months' salary for the average student. Microsoft has dropped the price on some of its popular software, like its Office 2007 Home and Student Edition in hopes of attracting students who might be willing to pay instead of pirate. But at about 2 weeks' pay, that is still too steep for many who want it. And so the software piracy continues unabated. AGIPNews.com : A Utah-based company helped the USPTO celebrate its 600,000th design patent award according to a topical piece today. From Kappos Awards 600,000th Design Patent : Under-Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO) David Kappos was joined by Senator Orrin Hatch (R-Utah) to award design patent number 600,000 to Goal Zero, a subsidiary of Provo Craft and Novelty, and a small business located in Spanish Fork, Utah. According to USPTO, the patent was granted for the design of a battery system, which works in conjunction with a solar briefcase that recharges the system using sunlight. This patent exemplifies the blending of green technology and appealing design. Senator Hatch heaped on the accolades with these exuberant words: "They are the economic engine that drives our economy, and they are largely responsible for the innovation that has kept our nation at the forefront of the world’s economy. I salute Goal Zero and Provo Craft and Novelty on the occasion of their being awarded design patent number 600,000[.]" Design patents are granted to "new, original, or ornamental designs for articles of manufacture[,]" and "...are intended to give encouragement to the decorative arts and promote commerce by giving designers an incentive to make their products more aesthetically appealing to consumers." Hear, hear! Congrats to Goal Zero and their clean, green design patent award. News Watch : Sri Lanka is getting on board with the US efforts to protect IP at home and abroad. From US asks Sri Lanka to ensure intellectual property rights by Dino Corero: "A visiting senior American official, Michael Delaney, assistant US Trade Representative for South Asia, said intellectual property protection was one of the concerns that figured in trade talks this week between the two sides. It was the first round of talks under the US-Sri Lanka Trade and Investment Framework Agreement. Sri Lanka was ranked the second worst offender in software piracy in 2008 for the second year running in a survey of Asia by the Business Software Alliance. Sri Lanka’s Director-General of Commerce Gomi Senadheera acknowledged the US concerns on IP rights and said the government was trying to improve enforcement." A Good Beer Blog : Hansen Beverage Company wasn't just being mean when it sent a Vermont brewery a cease and desist letter recently over using the word "monster" in the name of one of its beers; they insist they must defend their trademark or lose it. Which is kind of true, you know. "In order to protect Hansen’s valuable Monster Energy® trademarks, Hansen is legally obliged to, and routinely sends, 'cease and desist' letters to, and where appropriate, pursues litigation against, entities and persons who use or attempt to register similar trademarks for products that are similar or related to Monster Energy® products. A 'cease and desist' letter was sent to Rock Art Brewery on September 4, 2009... Hansen has not, and does not, target or single out one company over any other, nor distinguish between big or small companies or individuals when enforcing our trademarks." In fact, according to More On That US Trademark Law Facing Vermonster by Alan McLoed, "Hansen does object to others and is not afraid to take on companies far bigger than they are. Hansen actually seems to be involved with a whopping ninety-nine trial or appeal files of one sort or another at the moment." So, no singling out of small, innocent Vermont breweries in this case. But just how much force does Hansen Beverage Company need to put behind their efforts to defend their trademark? Can't they issue some kind of undisclosed term agreement and just let Rock Art Brewery continue to make their monstrous brew? PatentDocs.org : Patent fees are on the rise, and not just in the US, either. Christopher P. Singer informs and explicates the facts in his timely piece, Recent Fee Increases for Foreign Patent Offices Acting as ISA for the PCT . He writes, "Within the last month, a number of foreign patent offices that act as International Searching Authorities (ISA) for the PCT announced fee increases to their search fees. IP Australia and the Korean Intellectual Property Office both enacted search fee increases that have been effective since September 15, 2009. The search fee for IP Australia to act as the ISA is now $1,278, while the search fee for the Korean Intellectual Property Office is now $729." Yikes! That's quite a lot of money for search fees, don't you think? Reducing such fees might work miracles in terms of patent submissions since on a limited budget, the potential patentee might have to chose between another bowl of ramen-noodle soup or paying up for an ISA search subscription... Bonus related IP story o' the day: Trademark B.S. and Why You Should Boycott Monster Energy Drinks by at the Seattle Post Intelligencer by Geoff Kaiser. | |||
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| Patent Holding Company Sues Industry Heavies Over Ethernet-related Patent | |||
| Written by Anthony Dale Kuhn | |||
| NetworkWorld.com : A patent holding company is suing a number of tech industry heavies for reported infringement on a purchased patent originally held by 3Com. Jeff Caruso reports: Some big names in the computer industry were sued this week by a company claiming that they have infringed on Ethernet-related patents developed by 3Com. The company is called U.S. Ethernet Innovations, which owns the patents spun off from 3Com for the sole purpose of launching these sorts of lawsuits. Named in the suit are Acer, Apple, Asus, Dell, Fujitsu, Gateway, HP, Sony, and Toshiba. The patents cover 3Com’s Parallel Tasking technology, which speeds up the interface between a computer and the network by performing two steps – read-in and transmit-out – at the same time. As 3Com describes it, NICs with this technology don’t wait to load an entire data frame into memory before transmitting it. They just start sending as soon as they receive the frames. There is some precedence for U.S. Ethernet Innovations' move to sue the likes of Acer and Apple as 3Com had previously won a suit against Realtek Semiconductor over the same IP. "A jury found that Realtek had infringed on 3Com’s patents, and Realtek settled the lawsuit with 3Com for $70 million. As part of the deal, Realtek is now a licensee of the technology." In other words, U.S. Ethernet Innovations is suing with hopes that the companies named in the legal docs will settle out of court by way of a licensing agreement which is sure to be more profitable than a number of long drawn out, and expensive, court cases. 3Com patents bite back for the win. BusinessWeek.com : Looks like you have to take the good news with the bad. According to a recent piece by Michael Arndt, things are looking up in the patent business but down for new production introductions. Arndt starts off with the positive: "The upbeat news first: The U.S. Patent & Trademark Office just showed me preliminary data for fiscal 2009, and it shows that 93,725 patents were issued to U.S. residents. While that’s 49% of the total 190,121, it’s up from 91,843 a year earlier." And then hits us with the other side of the coin: "I also asked analysts at Mintel, a market-tracking outfit, for the latest numbers on product introductions. Mintel compiled data over the first three quarters for these categories: food, beauty & personal care, drink, household, health care, and pet. For the 2009 period, the total plunged 23%, to 28,473, from 2008’s first three quarters, when 37,203 new products came out." Generally that means that people aren't buying what's new, and possibly more expensive, but rather they are sticking with their good, old consumer product friends in lean times. Check out the rest of the story in Ardnt's aptly titled U.S. Patents Up; Consumer Product Introductions Down . PatentBaristas.com : Sure, we've all heard of the Baseball and Football Halls of Fame, but what about the IP Hall of Fame? Didn't think so. So leave it to IP guru Stephen Albainy-Jenei to provide the latest information on who's who in 2010 at this most prestigious of clubs. From Nominations Open for the 2010 IP Hall of Fame , Albainy-Jenei writes: "The nomination process for the 2010 inductees into the IP Hall of Fame is now open. The IP Hall of Fame honours those who have made an outstanding contribution to the development of IP law and practice. Devised and developed by leading IP publication Intellectual Asset Management magazine, it identifies individuals who have helped to establish intellectual property as one of the key business assets of the 21st century." If you know someone you'd like to nominate or would like more info on the IP Hall of Fame, be sure to the complete story via the above link. I wonder what kind of partying goes on after the awards are presented? ArsTechnica.com : So just who *has* seen the secret Anti-Counterfeiting Trade Agreement (ACTA) proposal, you ask, oh gentlest of readers? Turns out that a well-timed Freedom of Information Act request recent uncovered the rogue's gallery of insiders on this controversial list. Nate Anderson reports: Knowledge Ecology International (KEI) found out in September that the US Trade Representative's office had actually been secretly canvassing opinions on the Internet section of the agreement from 42 people, all of whom had signed a nondisclosure agreement before being shown the ACTA draft text. After filing a Freedom of Information Act request (the names of the 42 people were considered a matter of "national security" and were not released voluntarily), KEI yesterday revealed the list of people who have had access to the ACTA Internet provisions. Why not allow the public a view of ACTA's long-reaching proposed legislation? A good question. The list of insiders leans heavily in the direction of corporations, but surprisingly is not 100 percent chock-a-block with yes men. "But many of those on the top list don't support much in the way of Internet 'enforcement' of IP law, not if that includes items like filtering or graduated response. Bill Patry, for instance, is Google's top copyright lawyer and has just written an entire book lambasting the content industries in no uncertain terms for their utter lack of innovation." Catch all the pertinent bits and pieces of this intriguing tale in Anderson's Secret ACTA treaty can't be shown to public, just 42 lawyers . Reuters.com : And finally, to round off our Friday offerings, here's a medical patent news release that should warm your cockles a bit on this most pleasant of fall days. "PIKAMAB, a stratified medicine biopharmaceutical company, announced today that it has secured exclusive rights to two issued U.S. patents from Hospital for Special Surgery, New York. PIKAMAB is developing Lupus TherasightTM, a novel theragnostic product that will eventually help guide the drug development process and patient treatment protocols in the areas of lupus and lupus nephritis." For those of you not in the medical know, lupus is "a chronic autoimmune connective tissue disease that can affect any part of the body." (From Wikipedia.org) Any new treatments for this debilitating sickness are a ray of hope for those that suffer from lupus. All the pertinent facts of this encouraging development can be found in PIKAMAB Secures Critical Patent Rights to Develop Theragnostic Product, Lupus Therasight . Bonus IP piece o' the day: Ocean Tomo: Intellectual Property as Emerging Markets by Brett Steenbarger at TraderFeed | |||
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| Turkish Investors Decry Lack Of Intellectual Property Protection | |||
| Written by Anthony Dale Kuhn | |||
| Today's Zaman : Turkish investors are clamoring for improvements to their country's intellectual property laws according to a recent piece by David Neylan. He writes: "The International Investors Association (YASED) has again called on the government to take 'urgent measures' to improve the country's poor standing with respect to intellectual property rights (IPR) protection." And this is not because Turkey needs to lightly boost their IP protection measures, as evident in this supporting quote. "Among the 133 countries evaluated in the report, Turkey ranks 89th in 'property rights' and 105th in 'intellectual property protection.' According to the report, in a section dealing with 'institutions,' Turkey did not have any discernable 'competitive advantages,' yet had a high number of 'competitive disadvantages.' Turkey ranked 95th in 'favoritism in decisions of government officials,' 108th in 'organized crime' and 125th in 'efficacy of corporate boards.'" That's a whole mess o' figures that points to one thing: reform, reform, reform. Read the Neylan's YASED slams government for poor intellectual property protection for more on Turkey's bid for secure IP and more foreign investment money. The 271 Patent Blog : Looks like China is stepping up their efforts to get Chome-grown companies to patent their ideas abroad. From Peter Zura's Chinese Gov't to Fund Foreign Patent Filings for SMEs we get the inside skinny: "Under the proposed policy, the government will provide SMEs as much as 500,000 yuan ($73,238) for each patent application abroad." And, of course, there are a few quid pro quo s for an SME to qualify for this outward-looking program. "[F]oreign patent application projects must either help exert China's industrial advantage and be internationally competitive; be expected to explore the international market or expand its international market share; or have patented products with an expected large capacity in the international market and good market prospects." Good news for mainland inventors hoping to compete on the global IP stage, nu? TechDirt.com : Insiders have been granted access to proposed changes to ACTA which have some interested bystanders asking why the public doesn't have the same permission to see the goods. Mike Masnick leads the way with his topical blog post, ACTA Negotiations Back On... White House Shows Small Group Proposed Text Under NDA . Masnick reports, "With the next round of negotiations on the ACTA treaty -- which may require the US and other countries to make significant changes to copyright law that favor the entertainment industry -- set to get underway, the White House still refuses to release details to the public, but did show the text to 42 Washington 'insiders' under NDA. The good news is that the list includes a fair number of folks who recognize the problems with copyright law and the ACTA proposal -- including people like Gigi Sohn, William Patry, Sherwin Siy, David Sohn and Michael Petricone. Many of those people will push for the public's best interests." But why isn't the general public able to review to this important information that is only being presented to lobbyists and insiders? Are the terms of the proposed ACTA legislation changes worthy of a SECRET rating? TechDirt.com : Insiders have been granted access to proposed changes to ACTA which have some interested bystanders asking why the public doesn't have the same permission to see the goods. Mike Masnick leads the way with his topical blog post, ACTA Negotiations Back On... White House Shows Small Group Proposed Text Under NDA . Masnick reports, "With the next round of negotiations on the ACTA treaty -- which may require the US and other countries to make significant changes to copyright law that favor the entertainment industry -- set to get underway, the White House still refuses to release details to the public, but did show the text to 42 Washington 'insiders' under NDA. The good news is that the list includes a fair number of folks who recognize the problems with copyright law and the ACTA proposal -- including people like Gigi Sohn, William Patry, Sherwin Siy, David Sohn and Michael Petricone. Many of those people will push for the public's best interests." But why isn't the general public able to review to this important information that is only being presented to lobbyists and insiders? Are the terms of the proposed ACTA legislation changes worthy of a SECRET rating? Here are a trio of Reuters.com announcements on a variety of patents that might be of interest to the constant and faithful Innovators-Network reader. Check out Number One : EAU Technologies, Inc. ("EAU" or "Company") (OTC Bulletin Board: EAUI), a leading provider of electrolyzed water, announced today its receipt of Patent #US7,588,488, from the United States Patent Office, to use Empowered Water(TM) Primacide Solutions for poultry processing. Empowered Water(TM) for poultry processing is produced by EAU's state-of-the-art generators using a unique combination of electrolysis cell technology, salt and electricity to alter the ionic structure of water to create non-toxic, oxidized antimicrobial solutions and reduced antioxidant cleaning solutions. EAU has conducted several successful trial installations to prove the efficacy of Empowered Water(TM) in poultry processing following successful trials conducted at the University of Georgia's Poultry Science Department in Athens, GA. Empowered Water(TM) is currently used on a commercial basis as part of the pathogen intervention program in one of the world's largest poultry processing facilities, which processes over 350,000 birds per day. EAU's environmentally friendly solutions are effective at killing Salmonella, E.coli, Campylobacter as well as most other tested organisms. And Number Two on the hit list: Cyclone Power Technologies (Pink Sheets: CYPW) announced today that Russia has granted the company a patent on its award-winning, heat regenerative external combustion engine. Russia initially issued a notice of allowance in January 2009, but this recent event marks the official approval and issuance of full patent protection for Cyclone`s engine technology. Initially filed in 2005, the Russian patent is valid through September 2025. Cyclone has received many requests for information from companies in Russia, as well as other eastern European nations, for its high-efficiency modern steam engine. The Cyclone engine is capable of running on virtually any liquid or gaseous fuel, including liquid natural gas (LNG) which exists in great reserves in Russia. According to the Energy Information Administration, Russia gets over half of its domestic energy needs from natural gas, and has a great national need to find new methods of utilizing this resource in power generation, automotive and other critical applications. And rounding out our number, is the third of the bunch : BOCA RATON, Fla., Oct. 14 /PRNewswire-FirstCall/ -- SECNAP® Network Security today announced that the United States Patent and Trademark Office has awarded the company a patent to protect its advanced security technology. Developed by SECNAP founder, Michael Scheidell, the technology is deployed in the firm's award-winning Intrusion Detection and Intrusion Prevention Services (IDS/IPS) and its revolutionary SpammerTrap® Email Security solution. The patented technology produces a higher standard of security by instantly reducing false positives by virtually 100 percent, automatically identifying a compromised network device, and facilitating the prioritization of responses to cyberthreats. These benefits dramatically reduce the potential for human error in identifying and responding to threats, and contribute to the industry-leading accuracy of the firm's network security and email security solutions. If that doesn't satisfy your appetite for a daily dose of patent application news, you obviously need to diversify your interests, my friend. Mercury News : Here's a dissenting voice in the growing conversation surrounding US Commerce Secretary Gary Locke's proposed changes to US patent law; that of Mr. Hank Nothhaft. In his opinion piece, Opinion: Patent reform still needs work to protect valley inventors , Nothhaft writes: "To its credit, the administration's recommendations on patent reform include some long-overdue proposals that many of us have been advocating for some time. But there is still work to be done for this legislation to actually protect and foster our community of inventors. Our fear is that, combined with other recent trends out of our nation's capital, the legislation will assist big companies while stifling the innovators who have driven our nation's global success for the past two centuries." Nothhaft also believes the changes will give an unfair advantage to bigger, and better capitalized, businesses at the expense of small business innovation and growth. "The administration's support of allowing for even more reviews after a patent has been issued will inject tremendous uncertainty into the process and thereby discourage investment in innovation. The proposal to issue patents based on who was first to file an application — rather than who was first to invent the innovation — would also put small and medium-sized inventors at a serious disadvantage against large firms with the massive budgets to file patents early and often." Any one have anything to add to this point-of-view? Please? Cue up Pink Floyd's "Is There Anybody Out There?" already. Bonus IP piece o' the day: Intellectual Property as Emerging Markets: Ocean Tomo by Brett Steenbarger at Seeking Alpha . | |||
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| David V. Goliath In Monster Beverage IP Clash | |||
| Written by Anthony Dale Kuhn | |||
| Rutland Herald.com : Another company is trying to smash a non-competitive product because the name includes the word "monster" in it. Gordon Dritschilo reports: Matt Nadeau said he's pretty sure people can tell the difference between a craft beer and an energy drink. Hansen Beverage, which makes the Monster Energy Drink along with a line of "natural" sodas, seems to think otherwise. A law firm claiming to represent the California company has sent a cease-and-desist order to Nadeau, proprietor of Rock Art Brewery, over his Vermonster beer. "I'm bewildered right now," Nadeau said Friday. Attempts to contact Hansen to clarify this odd turn of events were rebuffed. "At Hansen's headquarters in California, a request to speak with the company's media representative was directed to a woman who only gave her name as 'Amala,' which she refused to spell. She said there was no media representative at Hansen and that the company had no comment. She would not even confirm Reed's law firm worked for them." Nadeau says it's the principle of the thing that upsets him and that it appears that those with money can push around smaller companies with just the threat of expensive legal action. Interestingly enough, there are other products from Vermont that use "monster" in their names, but don't appear to be attracting Hansen Beverage's legal ire. Read Dritchilo's Monster drinks threaten tiny Vt. brewer for the rest of the scary details. The Wall Street Journal : Author Larry Downes' book, "The Laws of Disruption," points out the preternaturally-large effect small changes in technology have had, and can have, on the course of human history. Mr. Downes also thinks that strong protections of intellectual property need to go the way of the Dodo bird because many currently protected media in "digital form" are "purely non-rivalrous good[s]." Jeremy Philips, executive vice president of News Corp., which owns Dow Jones & Co., the publisher of The Wall Street Journal, provides more details in his recent article Sudden Change, Big Effect . Philips writes: Mr. Downes's ideas on intellectual property derive in part from his view that "the value of information . . . increases exponentially as new users absorb it." This may be true in certain instances, but not universally. In fact, scarcity generally makes information more valuable. Financial data, for instance, are plainly worth more to traders the less widely they are distributed. Mr. Downes says that the "more places my brand or logo appears," the higher its value. Again, in some instances, yes, but not usually. Firms carefully protect their brands to ensure that they are not over-exposed or given the wrong associations. Mr. Downes himself illustrates the distinction when he discusses the dispute between Apple Inc. (the computer company) and Apple Corp. (the company set up by the Beatles to control their music catalog) over the use of the trademark "Apple." If that kind of IP talk gets your juices flowing faster, you can purchase a copy of Downes' "The Laws of Disruption" and read the entire iconoclastic tome for your very own self. BusinessWorld Online : A trademark dispute over the name of a hot sauce brand heats thing up in the Philippines. "Department of Trade and Industry (DTI) officials said the case involved Green Gold Gourmet, maker of Suka Pinakurat from Iligan, and Estrella T. Borja’s 'Chiga,' a hot chili sauce brand produced in Cagayan de Oro. Green Gold Gourmet, owned by the Stuart-del Rosario family, produces a similar product branded 'Chigar,' which came out earlier in the market. The packaging of the two products was very similar, Trade department officials said." And so Ms. Borja is planning on changing the name of her competitive hot sauce, despite the additional cost necessary to do so. The good news is that the case has increased the attention of the general public to the importance of IP and trademark protection. "The case’s resolution has raised awareness in intellectual property rights, especially among small businessmen. Last weekend, more than a hundred professionals and entrepreneurs attended a seminar on intellectual property held by the Intellectual Property Office of the Philippines (IP Philippines) and the DTI." More on this spicy issue in Chili sauce brand name dispute raises interest on IPR laws by Louise G Dumas. PatentBaristas.com : If you've been following the interesting case of Quanta Computer v. LG Electronics, here's a bit more on the subject for your reading pleasure, courtesy of Mr. Stephen Albainy-Jenei. "The Federalist Society has a new patent law podcast posted on the Quanta Computer v. LG Electronics case before the Supreme Court and its impact on patent licensing. In Quanta, the Supreme Court is being asked whether the Federal Circuit erred by holding, in conflict with decisions of this Court and other courts of appeals, that respondent’s patent rights were not exhausted by its license agreement with Intel Corporation, and Intel’s subsequent sale of product under the license to petitioners." The main bone of contention being whether or not a patent holder's rights to payment for their IP expires when they sell it to the initial purchaser or if the IP can gather payments throughout its life if resold to a third-party later on. For the exciting back-and-forth on this contentious point, be sure to listen to the podcast and read Albainy-Jenei's complementary commentary in Quanta Podcast: Patent Rights in the Supreme Court . The Associated Press : Divorces are often messy, nasty affairs and reveal some heavy baggage that causes both parties no end of trouble. In a recent split, the most burdensome item at issue is a dough-mixer brand that both parties claim is their very own. David Porter reports: Twelve years after her divorce, Karin Seruga finally got what she really wanted: A dough mixer. Not just any dough mixer. This one is 6 feet tall, 4 feet wide and weighs 2 tons. The machine was developed in Switzerland a century ago and is used by commercial bakeries around the world to make their pastries light and fluffy. The Artofex triple-action mixer isn't for Seruga's kitchen, it's for her bakery-machine business. A federal judge ruled late last month that she has the right to make and sell it in the U.S. and awarded her $570,000 in a bitter legal battle with her ex-husband, who runs a competing enterprise. He ex-husband, Richard Zinn, *did* stoop to some pretty low levels during the spat: "Zinn told some customers that she had died, and he continued to use Excelsior's phone number at his new business until a court ordered him to change it, according to Seruga; Seruga admitted the trademark was invalid in e-mails retrieved from her computer..." according to Richard Joel, an attorney for Zinn. Things from there go from bad to worse and if you've interesting in some down-and-dirty divorce IP nastiness, be sure to read the rest of Porter's NJ woman gets $570,000 from ex in dough-mixer suit . Bonus IP piece o' the day: IP’s role in the boardroom by Brian Chau at IPOsgoode . | |||
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| Oracle Gets IP Asset Management Act Together | |||
| Written by Anthony Dale Kuhn | |||
| PC World : Oracle recently purchased a company to help managed its complex intellectual property assets according to a recent piece by Chris Kanaracus. From Oracle Buys Technology for Media IP Management : "Oracle on Monday said it has acquired 'substantially all' of the assets of Sophoi, which makes software that media companies use to manage and track their intellectual property. Terms of the deal were not disclosed." Not that Oracle and Sophoi haven't been marching down the path towards a full-on partnership for some time now. "Oracle has a history with Sophoi, having invested in the company in 2007. The deal announced Monday is just the latest in a long string of acquisitions by Oracle, which is also attempting to purchase Sun Microsystems. That transaction is on hold while European officials conduct an antitrust review." Check out the rest of Kanaracus' piece at the above link. Welt Online : World-famous legal search software company LexisNexis is getting into the IP game. "Through a development alliance with Dallas-based Pure Discovery, LexisNexis has become the first provider of legal information services to integrate the power of semantic search technology with familiar Boolean search technology, giving the user greater control over the patent research process via a simple, streamlined user interface that matches their typical daily workflow." The service "is now available through the patent research and retrieval service LexisNexis® TotalPatent™ and the automated patent application and analysis product LexisNexis® PatentOptimizer™. In addition, the functionality is also available through lexis.com®, the flagship online legal research service from LexisNexis, for full-text non-patent prior art and other patent-related content." Read all about this exciting addition to LexisNexis' family of legal services in LexisNexis Introduces Transparent Semantic Search Technology for Patent Research . Haqeeqat.Org : "How does the religion of Islam view the protection of intellectual property?" you ask. A very fine question, gentle reader. A blogger known only by the moniker "shark" sets out to answer it in his topical post, Intellectual Property in Islam . Here's the meat of the matter (non-bacony, of course): -Ownership in Islam is the permission of the Legislator for one to benefit from an asset. Private ownership is determined by the Shari’ah rule; this ascribes an asset or a benefit to an individual, thus enabling one to benefit from the asset itself. Thus, the right to own a thing does not arise from the thing itself or from the fact that it is beneficial as in the Capitalist model. - Ownership in Islam means the right of disposal. The individual has authority over the thing that he owns. Islam enabled him to freely dispose of it and benefit from what he owns according to the Shari’ah rules. It also obliged the Islamic State to protect private ownership and laid down punishments to deter those who infringe upon the ownership of others. - Thoughts are not subject to ownership. However every idea originates from a mind, hence the mind is the initial ‘home’ for any particular thought from the perspective of reality. Thus one can ignore it or dispense of it seeking a material value. However, once dispensed it cannot be subjected to copyright (as this is an invalid contract) or patent (as this is not subject to ownership according to Islam.) - On the other hand, trademarks are sensed, tangible and have a material value because they are a component of a trade. Therefore, it is allowed for an individual to own it and the Islamic State is obliged to protect this right of the individual who will be able to freely dispose it, and others will be prevented from infringing upon this right. Basically, Islam allows possession of permitted assets including those that are sensed and have value due to their ability to be traded. Good to know if you happen to be trying to navigate the tricky waters of IP in the Muslim world. ArsTechnica.com : Big Content has tried its best for over one hundred years to kill of any kind of innovation that might take away from their bottom dollar by using the patent as a weapon against anything new and scary. Nate Anderson covers the history of this assault on brave new media in his aptly-titled article, 100 years of Big Content fearing technology—in its own words . From player pianos to DVRs, Big Content has screamed bloody murder at each new technology that was predicted to end the entire industry of content creation. But, indeed, the sky never did actually fall and many millions were made by those who capitalized on new and improved ways to produce, distribute and view these forms of media. Here is just one example of the fear-mongering hyperbole used by a Big Content insider to decry a new technology that might suck away precious royalty money, but in fact, became the generator of HUGE revenues for Hollywood and related artists: Chief movie lobbyist Jack Valenti appeared at a Congressional hearing on the VCR and famously went hog-wild. "This is more than a tidal wave. It is more than an avalanche. It is here," he warned after reciting VCR import statistics. "Now, that is where the problem is. You take the high risk, which means we must go by the aftermarkets to recoup our investments. If those aftermarkets are decimated, shrunken, collapsed because of what I am going to be explaining to you in a minute, because of the fact that the VCR is stripping those things clean, those markets clean of our profit potential, you are going to have devastation in this marketplace… We are going to bleed and bleed and hemorrhage, unless this Congress at least protects one industry that is able to retrieve a surplus balance of trade and whose total future depends on its protection from the savagery and the ravages of this machine." You'd think we were talking about an army of Jack the Rippers rather than a video tape recording device with language like that. If you've any interest at all in the on-going issue of Big Content doing all it can to stop anyone else from getting a slice of the royalty money pie, be sure to read the rest of the story at the above-linked piece. Reuters.com : And here's any the latest on the icy battle between two appliance giants: LG Electronics Inc (066570.KS) said on Monday a U.S. International Trade Commission judge has ruled it has not infringed Whirlpool Corp's (WHR.N) patent for ice storage bins placed in refrigerator doors. The ruling prevents the ITC from granting any relief to Whirlpool. In a statement, LG said Judge Theodore Essex ruled late Friday that none of LG's side-by-side or French door refrigerator models infringed the patent. Unless modified by the ITC on an appeal, this will become the final decision of the ITC in about four months, LG said. Be sure to view the rest of UPDATE 3-Judge backs LG in Whirlpool patent case to find out more details on this chilling patent case. | |||
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| USPTO Continues To Update US Patent Policy | |||
| Written by Anthony Dale Kuhn | |||
| Seattle Post-Intelligencer : The US Department of Commerce's Gary Locke is still urging the passage of patent reform legislation despite the vocal efforts of some who oppose such a move. From Nick Eaton's appropriately titled piece, Locke supports patent reform, higher fees : "Three weeks ago, a group of 59 tech companies sent Locke a letter opposing the proposed patent reform. Senate Bill 1145 would require the PTO to review patents shortly after they are granted, would allow third parties to comment on or oppose a patent during review, and would require the PTO to grant or deny patents within 18 months of filing."The are some tech firms, however, that stand firmly in favor of the proposed changes to US patent law: "Microsoft...supports the proposed changes. Post-grant reviews would strengthen patents and make the patenting process more efficient, Horacio Gutierrez, Microsoft's corporate vice president for Intellectual Property and Licensing and a deputy general counsel, told seattlepi.com Sept. 16." Looks like the people in an industry that will most definitely be affected by any patent reform, or lack thereof, can't even form a united front. Reuters.com : If you can't afford your own patent attorney, there's a new solution that will provide you with the experts to help you protect your valuable intellectual property. From Outside GC Launches Patent Firm, Patent GC LLC : "Outside GC, the pioneer and national leader in on-demand in-house counsel services, today announced the launch of its sister firm, Patent GC ( www.patentgc.com ). Co-Founded with Peter Gordon, a veteran patent lawyer who left Fish & Richardson to launch the new firm, Patent GC will provide its clients with partner-only patent counsel at rates that are dramatically lower than traditional patent firms while providing best-in-class service. Leveraging Outside GC's high value model, Patent GC will be comprised exclusively of patent lawyers with significant in-house experience who have practiced law for at least ten years." This is in direct response to Outside GC's customer requests for assistance navigating the tricky maze of patent law and should help more small firms protect their IP without having to hire on additional legal resources. PatentBaristas.com : USPTO chief David Kappos is making making significant headway towards getting antiquated and much-maligned patent policy into healthier shape. Stephen Albainy-Jenei reports on a recent much-lauded announcement: Under Secretary of Commerce for Intellectual Property and Director of the USPTO David Kappos has officially rescinded the highly hated regulations that would have limited patented claims and continuations — with an emphasis on the fact that they were proposed by the previous administration. The regulations were published in the Federal Register in August 2007, but were enjoined and never came into effect. The USPTO also announced that it will file a joint motion with GlaxoSmithKline – one of two plaintiffs in the Tafas v. Kappos lawsuit – to dismiss and vacate the federal district-court decision in a lawsuit filed against the USPTO that sought to prevent the rules from taking effect. Of course, those in the bio-sciences industry who stand firmly in favor of the USPTO's move towards normalizing the fuller protection of industry-related patents are overjoyed. Here's just one sample of the praise for Kappo's move by Biotechnology Industry Organization (BIO) President and CEO Jim Greenwood: "BIO applauds the action by Under Secretary Kappos today to formally withdraw the controversial and harmful proposed rules that would have limited the ability of biotechnology applicants to secure full coverage of their inventions. This action is a positive sign that the new Administration wants to work in a constructive manner with the patent applicant community to address the serious challenges facing the PTO, and BIO stands ready to work with Under Secretary Kappos and others at the PTO to do so." Read The Rules Are Dead. Long Live The Rules! for more analysis and commentary by Albainy-Jenei. Intellectual Property Today : "Just how active are US government agencies in patenting their intellecutal property?" one might wonder. Look no further than The Patent Scorecard™ 2009 – Government Agencies by Tammy D'Amato for the answer to this penetrating question. Here is a bit of a breakdown for the gentle IP reader: "Government Agencies do not patent heavily, as can be seen through the low amount of organizations (40) that meet the qualifications for unification1. In fact, these 40 organizations only account for approximately 1% of all utility patenting per year. This is not alarming as Government Agencies patenting efforts are more for defensive purposes and to meet specific needs than to support product initiatives. However, governments do contribute significantly to patenting innovations through funding and grants to both private and public sectors. The top 10 Government Agencies are shown above, as ranked by their Technology Strength™ with an even mixture of U.S. and foreign organizations." Not surprisingly, the US Military ranks high in the list of heavily patented agencies with the US Navy taking the top spot among the martial branches. Rob Preston, VP and Editor in Chief of InformationWeek CIO, isn't afraid to call it like he sees it, especially when it comes to the US patent system. In his topical piece, Down To Business: Tech Patents Run Amok , he writes, "Opposition to software patents, especially the specious ones, makes for strange bedfellows. Big business aligning with digital freedom fighters. The open source faithful breaking bread with the commercial software elite. All in the name of defeating so-called patent trolls whose lawsuits extract billions of dollars each year from U.S. industry--and thus every one of us. There's a reason so many diverse interests are in agreement. This isn't just a 'software industry' problem. Every company that develops software or uses a Web site that implements software processes is a potential target of the trolls." Oh no he didn't! Using the "troll" word to refer to those who make their living suing people for patent infringement and not creating IP itself is so not PC these days. Preston wraps up his thoughts in this closing paragraph: But what of small inventors whose software patents are the product of considerable sweat and ingenuity? Aren't they entitled to compensation for their work, even by way of a professional patent troll? Let's go back to the main purpose of patents. The system wasn't conceived to enrich inventors. It was set up to encourage innovation, and stimulate the job creation and broader economic and societal value derived from innovation. Letting companies assemble a portfolio of other people's patents for the express purpose of suing alleged violators hardly serves that interest. Anyone have other views on the "P*tent T*oll" question? Bueller? Bonus IP piece o' the day: Whirlpool Sues LG Electronics to Invalidate Patent (Update5) by at Bloomberg.com . | |||
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| IBM Comes Under Scrutiny For Unfair Mainframe Business Practices | |||
| Written by Anthony Dale Kuhn | |||
| CNNMoney.com : Big Blue is coming under close scrutiny for its monopolistic practices in the mainframe business according to a recent piece by Ben Rooney. "IBM has been accused of stifling competitors by withholding patent licenses and certain intellectual property to maintain a monopoly of the mainframe market. The company is also accused of tying the sale of its operating system to its mainframe hardware to block competition." At least one competitor in the mainframe market believes that such practices have allowed IBM to dominate the segment unfairly and has taken t | |||