First it was the deceased Marilyn Monroe, now it is the alive and kicking Andy Griffith.

The so-called 'right of publicity' has the potential to mutate into another form of speech-stifling monopoly. Glad to see that the courts are getting it right in these instances.

Andy Griffith's trademark claims were also appropriately shot down. If reasonable people were actually confused that the television star was running for office, then I'd reconsider.

The Washington Post's Alan Sipress writes about a new development in valuing intellectual property link here. The notion is that the total market value of a company less the value of its tangible assets reflects the value of its patents, copyrights, trademarks, and trade secrets.

This formulation was arrived at from calculations showing that the market value of companies increasingly reflects their intangible assets. Using the market value of the S&P 500 Index and the accounting value of their tangible assets, an investment research firm called Ocean Tomo estimated that intangibles have gone from 17 percent of total market value in 1975 to 80 percent in 2005. Behind this is the notion that the value of tangibles has gone down through offshoring of goods and services. The article also notes that a stock index based on intellectual capital called the Claymore/Ocean Tomo Patent ETF is traded on the American Stock Exchange.

Comment: Nothing is said about the overall level of the stock market in determining intellectual property values. I suppose it would be possible to factor that in. In any case, the new notion is that the heart of our economy is intellectual capital. This economist would like to see some attempt to estimate total factor productivity in the market value of companies to reflect their differential ability to add value.

After reading this article, I have a newfound respect for the art of the guys who hold advertising signs on street corners.

White is part of the competitive world of "human directionals," an industry term for people who twirl signs outside restaurants, barbershops and new real estate subdivisions.

Street corner advertising on human billboards has existed for centuries, but Southern California where the weather allows sign spinners to work year-round has endowed the job with style.

Local spinners have cooked up hundreds of moves. There's the Helicopter, in which a spinner does a backbend on one hand while spinning a sign above his head. In the Blender, a spinner twirls the sign behind his back. Spanking the Horse gets the most attention. The spinner puts the sign between his legs, slaps his own behind and giddy-ups.

Thanks to growing demand, the business has turned cutthroat. There's a frenzy of talent poaching. Spinners battle one another for plum assignments and the promise of wage hikes. Some of the more prominent compete for bragging rights by posting videos on YouTube and Google Video, complete with trash talking. One YouTube comment reads, "i don't know if you stole my tricks or i just do them better."

But the limits of my respect ended when I got to this section in the article -

Aarrow keeps dozens of moves in a "trick-tionary," which only a handful of people have seen, said co-founder Mike Kenny. The company records spinners' movements and sends them in batches to the U.S. Patent and Trademark Office. "We have to take our intellectual property pretty seriously," he said.

Got that folks? Even after the latest Supreme Court patent smackdown, the IP legal culture still fosters the idea that you can monopolize the way you twirl a piece of cardboard around your body. If try to do that yourself, you will be sued by the patent holder of this stunning new invention that pushes the boundaries of human progress.

Ah yes, we certainly need to "take our intellectual property seriously" don't we? Things like this will certainly help the public to do just that.

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.

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.

I missed this when it first came out. The US Patent and Trademark Office reports it has issued its first patent under an accelerated procedure link here. The Office writes that the first patent under its accelerated examination program that began in August 2006, for a printer ink gauge, was filed with the USPTO on September 29, 2006, and was awarded to Brother International, Ltd. on March 13, 2007. Average review time for applications in the ink cartridge technology area is 25.4 months. This patent issued in 6 months, a time savings of 18 months for the patent holder.

To be eligible for accelerated examination, applicants are required to provide specific information, known as an examiner support document, so the USPTO can issue a final decision by the examiner within 12 months on whether their application for a patent will be granted.

Inventions that are new, useful, non-obvious, and accompanied by a written description disclosing how to make and use it, are presumed to be patentable. To reject an application, the USPTO must show that the invention is obvious or not new ("prior art").

Normally, applicants have to disclose to the USPTO relevant prior art of which they are aware but are not required to search for it. For accelerated examination, they must search for prior art, submit all prior art that is closest to their invention, and explain what the prior art teaches and how their invention is different.

They must state how their invention is useful and show how the written description supports the claimed invention. Only a limited number of claims is allowed in each application and the time for responding to most USPTO communications is shortened.

This and the peer review process (recently described here) presumably will improve the quality of patents issued. However, there is a good bit of skepticism among those of us at Against Monopoly who see the USPTO as overwhelmed and under the strong influence of existing patent holders and big business.

Keep an eye peeled.

[Via Lawrence Solum who is often on the lookout for new legal articles dealing with intellectual property law and philosophy.]

Viva Moffat has written an interesting paper on the problems resulting from overlapping intellectual property protections -

"The interactions between the three federal schemes of intellectual property protection – copyright, patent, and trademark – have often been overlooked. This article addresses some of the issues raised by the overlaps between these areas of law and concludes that the availability of more than one form of protection for certain creative or inventive works creates problems in many circumstances; that those problems have not been considered fully by policymakers or courts; and that overlapping protection interferes with the benefits meant to flow to the public."

It has often been said that the porn industry helps drive technological innovation (i.e., Helping to decide competing formats, etc.). Can it also help drive the legal debate over IP?

Behold the latest copyright/trademark dispute involving a gay porn film that references an Italian classic.

The response letter from the defense attorney is well worth reading.

[Hat-tip: Mathhew Heller from Courthouse news]

The 9th Circuit gets it right this time.

Here is the simplistic explanation of the important aspect of this decision:

1. The Digital Millennium Copyright Act (DMCA) protects "Internet Service Providers" (including most blogging websites)from liability for various material posted by third parties. For instance, if a third-party commenter were to post a defamatory comment on this site, neither myself, nor the site's operators would be legally liable for the other person's comment, since we wouldn't be considered the authors of it. It prevents our liability for 'republication' of the third-party comment, even though it appears on this site.

2. However, the DMCA does not extend its liability protections to intellectual property (IP) claims. For instance, if somebody alleges that a thrid-party posted a copyrighted video to this site, we would still be legally obligated to take it down - provided that we were given notice and the video posting doesn't otherwise comport with fair use.

Why did the DMCA carve out an explicit exception for IP in its liability protections? The usual reasons - Big media lobbied Congress to include that provision in order to protect its turf. There is no such thing as an organized political lobby for those who might be libeled in the future. (As a result of the IP exception under the DMCA, the development of the Internet still has been unfortunately slowed...but that is obviously a much bigger debate and discussion for other posts on this site and elsewhere.)

So the vital question then becomes: What is 'intellectual property' for purposes of interpreting the DMCA? Some states have a mutant form of IP protection called the 'right of publicity'. They also have other laws under the rubric of 'unfair competition' or 'trade secret' laws that also serve as a mutant (and broader) form of IP protections. Then there are also state 'common law' forms of copyright and trademark protections that you may read about from time to time.

So in other words, state concepts of IP are often defined far more broadly than federal forms of IP. If you were to accept the broader state notions of IP, and then allow those notions to dictate the meaning of the DMCA, that would mean that the DMCA offers less and less liability protections to Internet Service Providers. States would eventually be able to define "IP" so broadly that the DMCA would effectively become a meaningless hollow shell - offering no real protections for anybody.

Fortunately, the 9th Circuit saw through the nonsense, and said that the DMCA still offers liability protections for all forms of state IP claims. The only exceptions to the protection for websites under the DMCA will be for IP that is recognized under federal law.

Well done 9th Circuit! There is still plenty wrong with federal IP and the DMCA, but at least they have seen fit to minimize the damage in this particular instance.

Debra Opri has apparently joined the growing rank of attorneys who are smoking crack when it comes to trademark law.

Let's get one thing clear: Trademarking a phrase for general use is a flat out unconstitutional violation of free speech. Are Opri and Birkhead honestly arguing that is somebody uses the phrase “Goodnight my sweet baby Anna” in a book, film, or any other creative work, then that person must pay off Birkhead or risk being hauled into court??

Trademark serves a useful and legitimate purpose when it is used to identify a specific good or service. For instance, if Birkhead sold baby cribs with the brand name “Goodnight my sweet baby Anna”, it is perfectly legitimate to prevent other crib competitors from using that name. This has nothing to do with principles of monopoly. It is simply a necessary tool for consumer protection.

With that said however, it is insane to try and claim a general trademark over the phrase itself when it is divorced from a pre-existing good or service. At that point, it is no longer a tool to identify a commercial good, it then becomes a naked and virulent attempt to try and privatize language itself through a government enforced monopoly. Anyone claiming to be an attorney who endorses such nonsense out to be shamed out of the profession.

Coke is a legitimate trademark to identify a cola brand. Are Opri and her ilk seriously arguing that I have to get permission from the Coca-cola company if I write a book where I have a character say, “I'd like a Coke, please.”? Surely you see the ridiculous implications here. The Supreme Court has criticized this attempt to abuse trademark law by claiming it as "mutant" form of copyright protection. However, this hasn't prevented special interests from trying to re-enforce their monopoly over language and communication.

Paris Hilton trademarking “That's hot!”? Pat O'Reilly trademarking “Three-peat”?? Donald Trump trademarking “You're fired!”??? These people have simply wasted their time and money by listening to attorneys who simply don't know what they are talking about.

Meanwhile, if there are any artists out there who can demonstrate that they have published creative works using these “trademarked” phrases, please let me know. I will be happy to publicize your work on this blog and provide free legal defense if you are threatened.

Part 7 of Tyranny of Trademark law here.

[Update as of 4-2-07]: Larry Birkhead has issued a fascinating message on his webpage over at LarryBirkhead.net -

TRADEMARKS: I have never requested a trademark, signed or filled out any paperwork on a trademark relating to Anna Nicole Smith, and the saying "Goodnight My Sweet Anna Baby." The form was filled out by another individual on my behalf. The form was not reviewed or approved by me. The media is reporting that they have seen a copy of the form, please send me one as I have asked for a copy and never have received it. It does not have my signature or authorization, I am far too busy working on my fight for my daughter Dannielynn, to worry about things like trademarking sayings for use in movies, etc.

**In other words, I will seek to have this trademark withdrawn or cancelled on the grounds it was not approved by me.**

So Birkhead is claiming that this was done "by another individual on [his] behalf" - apparently without his consent or approval. Was he referring to attorney Debra Opri? It's impossible to know for sure. However, we do know that Opri was fired by Birkhead recently and that Opri has engaged in Gloria Allred-style media saturation overreach in trying to promote her own name. This would certainly fit the profile of an overzealous entertainment attorney who tries to make outrageous claims on intellectual property to the detriment of the client. But I'll wait for more facts to come in.

Whoever tried to make that trademark registration, it is utterly scandalous even by the standards of the Anna Nicole Smith saga.