via Slashdot. The U.S. Supreme Court - about which we have often been critical on this blog - came through in a big way today. The Circuit Court - which is notorious for its lax standards in determining whether a patent is valid - had the test it uses for "obviousness" overruled.

"Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress," Justice Anthony Kennedy wrote for the court.

A brief account can be found here. Note that the companies arguing against the Circuit court are the ones that innovate; those arguing with the Circuit court are those that don't. This alone should say something about the state of patent law. Hopefully the ruling will cut down on the vast number of frivolous and/or blackmail patent lawsuits. The article doesn't mention this, but the ruling was unanimous, which is good news as well.

There was also a useful but unrelated ruling cutting down on the use of lawsuits on exports.

Is the patent system broken? You be the judge. Here is a case of several examples of prior art that were not caught by the Patent and Trademark Office and are now giving rise to a patent suit by Verizon against Vonage, closing it down for a period and threatening it over the long run link here. Even with the evidence, Verizon's patent will need to be declared invalid, a procedure that may take a long time and cost Vonage money it doesn't have and business it is now unlikely to get.

Here is a new one-investing or rather, joint venturing, in patent trolls link here. DeepNines is suing McAfee over a patent covering "combining an IDS and firewall in a single device", whatever that is. DeepNines is capitalized by a zero-coupon note payable to private equity Altitude Capital Partners, promising buyers a share of the payout from the suit.

Can it get any dumber?

IP Innovation LLC apparently owns a patent on tabs, originally issued to Xerox in 1987 link here. It has now sued Apple for infringement, filed in the patent troll's and forum shopper's favorite venue: Marshall, TX. It is requesting damages in excess of $20 million and an injunction against future sales and distribution of Mac OS X 10.4.

All users of tabs should now join to end this nonsense.

Eugene Volokh is spot on in his legal analysis over who owns the 'copyright' in the video made by the Virginia Tech mass murderer. But that doesn't change the fact that the entire debate has a sick property to it - a sickness that is ultimately born out of our flawed copyright laws.

One ultimately has to conclude that copyright has only one of two purposes in this instance: (1) To maintain an overt tool of political/social censorship, or (2) to maintain tool of abstraction for blood money in the wake of a tragedy.

Is there a third possibility here? If there is, I admit that I fail to see it.

Does the copyright in the Nick Berg beheading video now belong to the Al-Zarqawi estate? Should Abraham Zapruder be able to make the film of the Kennedy assassination disappear forever because he (and he alone) feels that society should not view it?

I certainly don't include Volokh in this category, but I suspect that there are many IP attorneys out there who are so caught up in their profession that they end up embracing the kind of insane social distortions discussed here.

The Federal Communications Commission faces a legacy-defining moment when in the next few weeks it decides how to auction the 60 MHz of spectrum freed up by the move of TV to high definition, according to Gigi Sohn at Public Knowledge link. She has some astute comments on the opportunity to add a third broad-band channel capable of competing with the existing duopoly of cable and DSL channels. She suggests a number of auction rules that would improve the likelihood of a competitive outcome and add substantially to the availability of cheap broadband services.

Tim Lee has an article on the latest patent abuse, the Vonage case. Here Verizon has been able to destroy a competitor by having the deep pockets to go to court with specious patent claims.

Theoretically, the patent office is only supposed to award patents for "non-obvious" patents, and the concept of converting between an IP address and a phone number certainly seems obvious.

Unfortunately, our patent system has long since departed from this ideal. In recent decades, the courts have dramatically lowered the bar for obviousness. As a result, some of the patents being granted are so broad that inventing around them is practically impossible. The patents that allowed NTP to win a $612 million settlement from BlackBerry maker Research in Motion, for example, essentially covered the concept of transmitting new email notifications wirelessly. There's no way RIM could have "invented around" that.

If we are going to have patent reform and a patent arms race: how about at least allowing Vonage to countersue for abusing the patent system through overly broad and obvious claims?

Sherwin Siy reports on what's happening with the WIPO Broadcast Treaty link here and provides a series of comments, quoted below.

"The US delegation is holding another roundtable on the WIPO next month to discuss the latest draft of the treaty and the next round of negotiations. As others have noted, it's open to the public, so long as you RSVP to the Copyright office by May 5th."

"This latest draft of the treaty looks a little nicer than earlier versions, since it tries to accommodate countries (like the US) that don't have Rome Convention-style property rights in broadcasts. But it's ... clear that it was still drafted as a property rights treaty (with some exceptions thrown in). That means that it doesn't fit with US law, or even with the requirement handed down by the WIPO General Assembly that the treaty be "signal-based."

"Paragraph 2 also says that countries have to prevent "unauthorized retransmissions." This goes beyond protecting broadcasters against signal theft. After all (to make a comparison to copyright for a second), when I quote a paragraph from an article, I'm making an unauthorized copy."

"Even worse, the latest draft of the treaty could ban "unauthorized transmissions" that copyright law would call fair use. Another major problem for public interest tech advocates is the fact that the treaty requires legal protections for "technological protection measures" (TPMs for short) like DRM or a broadcast flag."

"Another major problem for public interest tech advocates is the fact that the treaty requires legal protections for "technological protection measures" (TPMs for short) like DRM or a broadcast flag."

This is another of the attempts to expand the definition of IP and restrict the application of traditional rights. It has to be watched, though it is a long way to completion.

Note that you can comment if you register in advance--by May 5.

David posted about the draft Patent Reform Act, just introduced in the Congress, as I was about to. Another source is link here with its own comments. I quote: "The provisions of the Patent Reform Act would... restrict damages that patent holders can receive for infringement lawsuits, create a new procedure to challenge the validity of a patent after it has been granted, and boost resources for the US Patent and Trademark Office."

"The corporate roster of backers includes Microsoft, IBM, Amazon, and nearly everyone else. Similar legislation failed to pass during the last session of Congress. Other groups, including the pharmaceutical industry and small inventors, have opposed major changes to the patent system."

The special interests gather at the trough. If we have to have patents, this may be a modest improvement. But don't count on it. More important, watch what gets attached to the bill as it wends it leisurely way through the legislative process and the tasty tidbits are on offer.

The big patent news this week was the patent reform bill introduced in Congress

"balance" awards for damages, limiting them to only economic value of the improvement; establish fair standards for punitive damages; restrict forum shopping, and improve patent quality. In addition, the bill would create a "first-to-file" system

Any bill sponsored by Orrin Hatch can't be all good, and my preliminary reading of this is that it reinforces why I am skeptical about patent reform. Pretty much every item favor the large corporate inventor over the small independent inventor. This has a good side, since a lot of small independent inventors are more like blackmail artists than inventors, but the bill seems one-sided doing nothing to reign in the monopoly power the large corporations get from their patent portfolios. I'd rather both sides agree to an armistice - no more patents.