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.