defending the right to innovate
The IP Wars
Monopoly corrupts. Absolute monopoly corrupts absolutely.
Copyright Notice: We don't think much of copyright, so you can do what you want with the content on this blog. Of course we are hungry for publicity, so we would be pleased if you avoided plagiarism and gave us credit for what we have written. We encourage you not to impose copyright restrictions on your "derivative" works, but we won't try to stop you. For the legally or statist minded, you can consider yourself subject to a Creative Commons Attribution License.
Via the New York Times, the Supreme Court has refused an appeal by Major League Baseball of an appeals court ruling that the First Amendment rights of people engaged in fantasy baseball (and other sports) trumped any rights of publicity controlled by the league. MLB was attempting to force the various operators of fantasy sports web sites to pay royalties on their use of statistics generated by actual players to update performance of fantasy teams.
Another ridiculous bit of neglect of the prior art by the USPTO via Information Week.
There was good news and bad news on the patent front today.
The bad news was a ruling by District Judge James Cacheris permanently enjoining the USPTO from implementing proposed rules that would have made it significantly more difficult for firms or individuals to obtain apply for large numbers of patents. These rules would also have limited the number of continuations a patent applicant could request to 3. Both of these rules are viewed by IP reformers as important changes that would make it more difficult for patent trolls to operate. The limit on continuations would significantly reduce the incidence of submarine patents.
Of course, the patent bar and their lobbyists are overjoyed with the news.
On the good news front, via Janis Fraser's article in Genetic Engineering and Biotechnology News, the USPTO has issued a ruling on the obviousness of genes that reverts to a previously used criterion, based on the Supreme Court's ruling last year on the general issue of the obviousness defense against infringement. The old criteria for when a gene was obvious was whether there were existing procedures for cloning it. In 1995, the Court of Appeals for the Federal Circuit changed the rules by adding the criterion that the nucleotide sequence of the gene be "predictable" based on current science. Since these sequences are almost always unpredictable, this raised the bar on the obviousness defese significantly.
The Supreme Court's 2007 ruling in the KSR v. Teleflex case (which involved the question of whether reinventing a car gas pedal was obvious or not) raised a number of very broad issues regarding the obviousness defense, and it is these issues that have led the USPTO to reinstate the old rules on when a gene is obvious, despite the CAFC's '95 ruling. Whether the rule change sticks remains to be seen.
In two articles the Economist calls a leader here and a briefing here, it gives a long account of the state of the movie industry and its attempts to prevent the erosion of income from piracy, while preserving its income streams from DVDs and the big retailers like WalMart. It makes a recommendation that the industry should turn to the internet, which it is failing to exploit fully, exploiting grudgingly, or actually resisting.
While the web technology isn't fully developed, it will no doubt come, if not by plan, by the pirates. Though the Economist doesn't recognize it, piracy is powerfully encouraged by the fact that the marginal costs of an additional sale are vanishingly small while the companies insist on keeping their prices high. The difference is just way too high to maintain.
The Troll Tracker has a post up today in which he says he is unsure about the use of the term patent troll because it doesn't distinguish owners of legitimate patents who exercise their rights from those who try to exercise questionable rights and patents. But then he goes on to say, "Anyway, over the last few months I have begun to transition out the term. It doesn't add anything to the dialogue; in fact, it distracts from the message I'm trying to get across. That message being that patents are not being asserted like they were 20 years ago, that today's American small and large businesses have to navigate a minefield like never before. Whether the plaintiffs are well-deserving individual inventors, their shell corporations, or large licensing entities solely seeking to monetize patents, it adds up for the mom-and-pop businesses and the big corporations alike. All I want to do is highlight who is behind these cases, who is backing them financially, and where these cases are being litigated. And if we can have some fun along the way, and not take ourselves so seriously, all the better, right?" link here
He seems also to be suggesting that he wants to cease posting.
I recently mentioned the patent troll site link here. To give you a sample of its work, here is a paragraph posted today on patent suits filed and the number brought by trolls:
"Here are the cumulative statistics for the first 11 months of 2007, comparing the various districts. Note that I got an email from someone who had numbers run independently, and I am told I have undercounted the number of cases by X and the number of defendants in EDTX by Y. As I said above, this is really a judgment call. I may not have counted all of the bifurcated Judge Clark cases while someone else may have. Either way, even if my numbers are low, they are astoundingly high compared to history:
"ED Texas: 343 patent cases, 1,320 defendants sued (140 troll cases)
CD California: 251 patent cases, 647 defendants sued (17 troll cases)
D New Jersey: 176 patent cases, 329 defendants sued (13 troll cases)
D Delaware: 128 patent cases, 310 defendants sued (16 troll cases)
ND California: 127 patent cases, 240 defendants sued (19 troll cases)
ND Illinois: 125 patent cases, 231 defendants sued (23 troll cases)
SD New York: 95 patent cases, 244 defendants sued (13 troll cases)"
Noam Cohen writes in the NYTimes today about the love-hate relationship between publications and the search engines link here. Some of the publications want to be paid for the use of their texts. At the same time, they exploit the search engines, trying the jigger the search results so that they come up high on the list of sites identified and the sites get more traffic and respect and ultimately, more money. Having given up on fee-based web content, they clearly would like a cut of the search engine advertising revenue.
Cohen moves on to the Automated Content Access Protocol (ACAP) which is supposed to replace the currently used robots.txt protocol (RTP). To an outsider, that seems quite flexible and restrictive as matters stand since it is already voluntarily accepted by the search engines. The search engines using RTP agree to be excluded from all or part of a web site. Reading between the lines, the ACAP advocates will want to exclude access for any search engine not paying up.
It is not clear how much clout the ACAP has. Its members, principally European, notably include AFP and AP and several book publishers but none of the large American or European papers as best as can be told from the ACAP website link here. They would like you to believe that their only interest is to benefit the consumer and they are coy about what their protocol would actually do, other than to apply "metadata to data."
Where "fair use" plays in all this is not clear, but be suspicious. Expect an attack in Congress to try to impose the ACAP on search engines, an ACAP with real teeth.
Columbia Law Professor Tim Wu has a fascinating article on areas of American law that are never inforced.
He doesn't tackle the issue of copyright piracy, but his essay gives obvious food for thought on the issue and where the future might be headed.
This series explores the black spots in American law: areas in which our laws are routinely and regularly broken and where the law enforcement response is … nothing. These are the areas where, for one reason or another, we've decided to tolerate lawbreaking and let a law duly enacted and still on the books lay fallow or near dead.
Full article link here.
Last September, David wrote about Rambus and its conviction by the FTC for illegal actions Link here . He went on to describe the behavior of the patent troll focused on computer ram chip makers. "In the ultimate submarine patent manuever, they not only patented an obvious idea and kept it secret, but then joined a standard making body, and without revealing they held a patent on the idea encouraged the body to agree on a standard that infringed their patent." Note that the FTC case first charged Rambus in June 2002.
Rambus has frequently been controversial. Here is a list of stories cited on TechDirt starting in 2001 Link here . Following the FTC determination, it can now look for further trouble, this time from the European authorities. The FTC finding provided the Europeans with the basis for a further complaint, based on the fact that the FTC determination would not cover ram that originated outside of the US and did not pass through the US. The Europeans have come up with a new descriptor for Rambus' illegal behavior as a "patent ambush", a new type of patent abuse Link here and Here .
The long history of this case suggests how difficult it is to get to closure. In Rambus' case, the threat of legal action has never been enough to deter. Even now, Rambus asserts that the FTC case is old news and they are appealing in the courts. Justice delayed.
A great article on why educators are on the wrong side of the copyright wars. It also includes a great analysis on how corporations and private institutions are being deputized to enforce copyright - thus preventing law officials from otherwise having to spend resources that might make them re-think copyright law.
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