Feds Sieze Huge Trove Of Counterfeit Goods In California

The Washington Post: In the most significant seizure of fake copyright-protected goods to hit the West Coast yet, a treasure trove of counterfeit products valued at some $100 million was taken from 8 stores on San Francisco's famous Fisherman's Wharf. Jerry Markon reports on this major coup for intellectual property protection in the topical 11 in San Francisco charged with trafficking in knockoffs worth millions.

"To consumers who think designer knockoffs are a harmless way to beat the system and get a great deal, 'buyer beware,' " said John Morton, director of U.S. Immigration and Customs Enforcement. "Trademark infringement and intellectual property crime not only cost this country much-needed jobs and business revenues, but the illegal importation of substandard products can also pose a serious threat to consumers' health and safety."

In the case of the Fisherman's Wharf seizures, the goods were mostly fashionable products like handbags and other luxury items from famous name designers including Nike, Coach, Kate Spade, Armani and Louis Vuitton, so no threat to safety or health was at issue. However, the loss of $100 million by the companies that own the rights to produce authentic versions of the fake goods is damaging both to their bottom lines and to consumers who are duped into buying inferior quality items at marginally-reduced prices.

All Facebook: Kind of strange that there are still individuals out there who believe they can buy up domains with sound-alike or mistaken spellings of protected names but yes, at least one individual in the United Arab Emirates did not get the memo. Caitlin Fitzsimmons reports on this anachronistic attempt to extort money from the world's leading social website in her recent article, Facebook Wins Rights To Facebook.me Domain. Here's the scoop:

In the latest case in the World Intellectual Property Forum, Domain Name Wire reports that Facebook has won the rights to facebook.me. The domain was registered on GoDaddy by Amjad Abbas of the United Arab Emirates in 2008. He apparently bought the Facebook.me domain name in the landrush period for .me - the country-level domain for Montenegro - for $5,115.

Facebook has wasted no time implementing its new rights - the Facebook.me domain is already diverting to Facebook.com.

Abbas reportedly told the Registrar that he would not sell it or transfer it or forward it to an improper site, or otherwise use it in bad faith. He argued he was not doing anything wrong with the domain name and pointed out that the Facebook name was not a registered trademark, or even particularly popular, in either the U.A.E. or Montenegro in August 2008 when he registered the domain.

Ignorance of the law and of Facebook's certain existence, is no excuse Mr. Abbas, but you know that now. Find out more about the ruling and some of the monetary figures being thrown around by reading the rest of Fitzsimmons' piece via the link above.

Gamasutra: Microsoft wins a coup against a group of inventors hoping to capitalize on their patent related to playing video games that allows "two or more players playing the same video game to compete with each other without using the same physical video game which alleviates the necessity of proximity of the players" by suing a number of prominent software/gadget-making companies. Kris Graft has more information for the gentle reader in the timely and quite readable Microsoft Wins Xbox Patent Battle:

In 2004, Peter A. Hochstein, Jeffrey Tenenbaum and patent rights holder Harold Milton Jr. filed suit against Microsoft and Sony, accusing the companies of infringing on the 1994 patent, "Apparatus and method for electrically connecting remotely located video games," which covers devices that facilitate remote multiplayer gaming.

The plaintiffs said Microsoft and Sony infringed on the patent with Xbox Live and Sony's PlayStation Network, and were seeking royalties and an injunction against the continued use of the technology described in the patent.

U.S. District Court Judge Paul D. Borman ruled that the Michigan plaintiffs in the case would recover nothing, that the action be dismissed and that Microsoft collect legal fees from the plaintiffs.

Also of interest is Sony's long ago payment to Hochstein et. al and Microsoft's moxie to keep fighting until they got what they deserved: a favorable ruling.

TechDirt.com: Mike Masnick reports on what Andy Warhol received from the Campbell's Soup Co. after his iconic series of paintings featuring one of the products made by the food purveyor in his August 2nd piece, If Andy Warhol Painted His Campbell's Soup Paintings Today, How Fast Would The Cease & Desist Arrive?Masnick offers up a scan of the letter sent to Warhol by Campbell's praising the work which also included the delivery of some cases of Tomato Soup to be sent to the pop artist for his eating pleasure, which is a far cry from today's rapid fire "cease and desist" responses to almost any and all use of protected IP, even fair ones. The facsimile could be reproduced here at this location, but better to let you view it at Masnick's where his commentary also resides, don't you think?

The New York Times: From the Prescriptions column comes news of a group trying to convince authorities that there are some patents that should be ignored to allow sufferers of certain ailments access to treatments and medications that would otherwise be out of the reach of the affected patients. Andrew Pollack has additional information on this tricky problem in the descriptively-titled Patients Want Patent Broken on Genzyme Drug. Here's the meat of the matter for the gentle reader's satisfaction:

Three patients with a rare genetic disease are asking the federal government to abrogate the exclusive patent rights held by the biotechnology company Genzyme on the only drug now approved to treat the illness.

Because of manufacturing problems, Genzyme has not been able to produce enough of the drug, called Fabrazyme. The drug is used to treat Fabry disease, an inherited enzyme deficiency that can cause heart and kidney problems, as well as pain and other symptoms.

Fabry patients have been receiving only about one-third of their usual doses, and many say they are experiencing increased pain, gastrointestinal problems, and other symptoms. At least one patient might have died from heart problems exacerbated by the drug shortage.

In their petition, the patients urge the Department of Health and Human Services to exercise the government’s so-called march-in’ rights to force the patents covering Fabrazyme to be licensed to other manufacturers to help alleviate the shortage.

Sounds like a reasonable argument for this particular case, but a positive judgment by the DHHS could lead to troubles in the future if precedence is set. There are alternative drugs available in greater supply over in Europe but they would have to be given to the US patients on a strictly experimental basis until either the substitute gets approval in the States, or the makers of Fabrazyme can gear up and produce enough product to meet demand.

Bonus IP piece o' the day: Major corporation threatens local cookie company with lawsuit by Jennifer Stagg at ksl.com.

Copyright Alliance Kicks Off “Summer Of Intellectual Property Love” Tour

Music Industry News Network:  The Copyright Alliance is going on a grand tour of the US, spreading the good word about intellectual property protection far and wide. From the MIN2 folks come more details of this summer tour in a topical piece entitled 35 States In 35 Days: Copyright Alliance Hits The Road To Talk With Creators Across America.

The Copyright Alliance this summer will embark on an unprecedented 35-state road trip to meet creators at work around the country and talk with them about their endeavors and how copyright keeps them churning out the music, novels, photography and other works their fans love.

Executive Director Patrick Ross will document the road trip at the Alliance's Creators Across America site, www.copyrightalliance.org/creators. Launched in May, the site provides a snapshot of the creative diversity in all 50 states and tells the stories of individuals who depend on copyright protection to earn a living through a collection of statistics, videos and blogs.

"Too much of the conversation about copyright and its role in the digital age occurs in Washington among people who don't have to meet a payroll and who haven't devoted years and equity to honing a skill and building a business," Ross said. "We are going to artists where they live and work. We'll talk with them about their creativity, their jobs, the new opportunities of the digital age, and the increasing burden of protecting their work from theft.

If you want to learn all about how the Copyright Alliance can help you realize your dream of creative work protection, visit the web site mentioned above and check out the next location they'll be visiting so you can "be there, or be square."

Business Daily Africa: Cathy Mputhia provides some much-needed coverage on the state of African intellectual property protection in her recent article, Ignorance to blame for trademark violations. In it, she offers some thoughts on what could bring Africa into a more knowledgeable mien that is befitting one of the more diverse and important countries on the planet. Mputhia writes on a case of infringement by the maker of a petroleum jelly product packaged and named in a too-close-for-comfort manner which eventually brought the law down on them for stealing another company's IP:

The rate of intellectual property rights awareness in Kenya is low compared to the level of ease through which intellectual property rights can be breached.

Something needs to be done and some public awareness carried out to ensure that the public is aware of the dangers of infringing on trademarks and other well known marks.

In a case such as the one above, the right holder can successfully and by court order halt the sale of goods containing infringed marks.

This means that the infringer will sustain high losses and it may be difficult for a struggling business to ever recover from such a blow.

Interestingly, Mputhia notes that many urban Kenyans infringe on others' products because they think they aren't doing anything wrong and are facilitated by increasingly sophisticated computer abilities/access that makes it even easier to steal trademarked and copyrighted materials than ever before. She suggests that if the infringers stood on the other side of the issue, they would surely support on-going efforts to protect innovations and the entrepreneurs behind them from blatant theft of their hard-won ideas.

TechCrunch.com: So-called "patent free zones" are starting to become more and more attractive to entrepreneurs who are savvy enough to recognize a potential hit product among the mass of more mundane and not-so-useful ideas that abound in places that have yet to embrace intellectual property protection. Opportunities In The Patent-Free Zone by Vivek Wadhwa explicates why the BRIC nations are the next frontier for innovation at bargain prices with Apple's iPhone as a star example:

China may overtake Japan to become the world’s second-largest economy this year. On its heels is India, and countries such as Brazil and Russia are not far behind. What does this mean for entrepreneurs? That, increasingly, the big opportunities lie outside the U.S.  Most people aren’t aware of another advantage in emerging markets: you can freely leverage the wealth of proven intellectual property that has already been created in developed economies. Most countries outside the U.S. and Europe lie in a Patent-Free Zone—where companies have not filed patents because they believe there is no market for their goods. So this intellectual property is available to anyone in those nations who can find a use for it.

Take the iPhone as an example: it has over 1000 patents; yet Apple does not apply for patent protection in countries like Peru, Ghana, or Ecuador, or, for that matter, in most of the developing world. So entrepreneurs could use these patent filings to gain information to make an iPhone-like device that solves the unique problems of these countries. Apple has so far received 3287 U.S.-issued patents and has 1767 applications pending: a total of 5054 (for all of its products). Yet it has filed for only about 300 patents in China and has been issued 19. In India, it has filed only 38 patent applications and has received four patents. In Mexico it has filed for 109 and received 59 patents. So even India, China, and Mexico are wide-open fields.

Yes, wide open, but without a marketplace for such expensive and luxury-based devices, it is easy to see why patents have not been sought by hi-tech manufacturers in countries where local consumers can't begin to afford their gadgets, nu? Read the rest of Widhwa's piece for more on BRIC patents, or rather, the lack thereof.

TechEye.net: Authors are hitting back at publishing houses that claim ownership of the electronic rights to books when in reality, if the specific rights are not negotiated for, the author *does* have the right to protect works in any new publication form that comes along. This isn't so much an issue for more modern works, but rather for the classics that were written before any publisher had the inkling to grab up the digital rights, as there was no such thing as an "ebook" reader back in the day. Authors hit back at restrictive publisher's ebook policies helps shed light on the blooming of the digital media frontier for authors of written works:

"If the publisher isn't receiving the rights for all of the channels, that will affect the bottom line," said Lee Ellis, at Gilham Solicitors. "Dealing with intellectual property rights in contracts is relatively straight forward in terms of dealing with specific rights that are being handed to the publishers."

"If it's a matter of witholding rights to print the literary works in electronic media, there is not too much complexity about that. But at the same time publishers are used to the situation where they receive assignment of all the copyright within the literary work. Having received those rights, the author at law now longer owns that. The publisher is then free to do what it likes."

Tech Dirt, which has been following the topic, today reports that agents have been trying to get around legal publishing battles by going ahead and offering their most popular books through the Kindle on their own. The estates of the author or the agents include works from Philip Roth, Martin Amis, Vladimir Nabokov, Hunter S Thompson and William Burroughs as well as plenty of others.

Not reserving rights for unknown methods of publication is only common sense and yes, the writers of beloved texts should be able to sell whatever rights that are now in vogue under new terms and for new amounts, don't you think? Leave a comment if you have an opinion to share on the matter and let's get a conversation started.

Bonus IP piece o' the day: MEMA member testifies on intellectual property at RubberNews.com.

Angola Aims To Join Intellectual Property Protective Nation Club

Angop: Angola is getting more serious about protecting intellectual property as evident from a recent two-day event in Luanda. Intellectual property boosts typical products from the Economic section of the Angola Press website provides more details of this encouraging development:

Kiala Gabriel, who was speaking at the opening ceremony of the National Conference on Intellectual Property, recalled that the economic development of the countries is based on knowledge and innovation which is possible only if we invest in research and promotion of human capital.

The official reported that the re-launching programme of manufacturing industry that is being implemented will contribute to the country's economic growth and lead Angola to less dependent on imports to exporting of goods of advanced technological content.

To this purpose, he called for the need to create instruments that allow the harmonious exercise of economic, scientific, technological and cultural activities through the effective protection of intellectual property.

A number of important organization were in attendance for the opening ceremonies of the Angolan IP meeting, including the World Trade Organization and World Intellectual Property Organization. Best of luck to Angola as it moves to bring its IP policies more in line with other developing/developed nations.

RGJ.com: A favorite car event in Nevada is subject to a change of venue should the owners of the Hot August Nights trademark find a better deal elsewhere. This, despite efforts of local politicians and business owners to keep the event in its hometown, Reno, Nevada. Here are the details from Frank X. Mullen Jr.'s topical piece, Hot August Nights trademark owned by local group:

Candice Pearce Bielser, the former councilwoman, said some Hot August Nights officials were talking about moving the festival to Japan in the early 1990s. She said she checked with the Nevada secretary of state’s office and found that the state trademark rights on the name had lapsed, so she registered the rights to the trademark.

“I turned (the trademark) over to the Reno-Sparks Convention & Visitors Authority with the stipulation that the name stayed with the event in Reno,” she said. “It might have given them some leverage.”

If the organizers moved, she said, the name could still be used locally.

Agency officials said Tuesday they have no record of the transaction. Bielser said she recently moved and can’t immediately find her copy of the documents.

For now, HAN, as the event is known locally, will continue to be held in Reno but the owners of the trademark certainly could move it to a new location should the right circumstance present itself. That is to say, an offer that would make more money for Hot August Nights Inc. to host the world-famous car cruise and show in a different location.

BlockShopper Philadelphia: Not sure why this deserves special notice, but what the heck, let's take a look any who.Intellectual property lawyer scores The Philadelphian condo by Carrie Reed highlights the purchase of a condo by an IP legal eagle.

Alexandra B. Gignoux and David Jon Wolfsohn bought a one-bedroom, one-bath condo at 2401 Pennsylvania Ave. in Philadelphia from Sylvia S. Sanft for $285,000 on June 17.

Unit #4A1 measures 1,262 square feet. It is part of the Philadelphian condo development, which was built in 1960.

Wolfsohn is a partner in the Philadelphia office of Woodcock Washburn LLP. He practices in the area of intellectual property litigation.

Maybe it's a groovy thing for an IP lawyer to secure a condo in the 'City of Brotherly Love' but for whatever reason, a few more people will be aware of Gignoux and Wolfsohn's good fortune due to this additional, and modest, coverage.

BrandChannel: Google is still in the middle of numerous legal battles due to its practice of selling keywords to competing companies other than the trademark holder of a given term or brand name and a recent French decision throws yet another monkey wrench in Google's AdWord works. LVMH Applauds Google Trademark Ruling by Barry Silverstein informs the gentle reader of the action from Europe:

[T]he French Supreme Court has ruled that Google "can be held liable for the sale of trademarks as AdWords on the grounds of civil liability." The court has referred Google's dispute with Louis Vuitton to the Paris Court of Appeals. Zut alors!

Apparently the French would rather support LVMH than Google — and with good reason. LVMH is a French holding company, a global leader in luxury goods, and in the greater scheme of things, rather important to France's economic well-being. LVMH is also on something of a Web warpath, also spearheading a Europe-wide move for luxury brands to block e-tailers peddling counterfeit goods.

LVMH is delighted at the French court's ruling in its Google suit, stating that the decision "helps to clarify the rules applicable to e-commerce, in order to ensure greater legal certainty to the benefit of both businesses and consumers operating online."

Looks like more of the same is in store for Google as it wades through its legal troubles both at home, and abroad.

Bonus IP piece o' the day: From The Gadsden Times comes 27 schools back Bama in trademark suitby Adam Jones relates how all of the members of the Southeastern Conference are standing behind their fellow football conference member, the Crimson Tide, as they try to resolve a trademark lawsuit over paintings that portray the team's protected intellectual property.

Business Software Alliance Chief Weights In On China

The Washington Post: The president and chief executive of the Business Software Alliance offers his opinion on how America can turn a long-time sore point into a winning economic arrangement but it will require an opening of intellectual property rights to include foreign companies by a country known for its closed-door policies. Robert Holleyman's recent op-ed article, How to repair our economic ties with China, explains the problem:

With most of this rampant theft occurring in Chinese businesses, the economic impact reaches far beyond the software industry. Software is a critical tool for production in every sector of the economy. Stealing gives Chinese companies an unfair cost advantage over their paying American counterparts.

Beijing late last year compounded matters for the software industry and several others -- from makers of clean-energy technology to producers of telecommunications equipment -- by instituting a heavy-handed "indigenous innovation" strategy that excludes foreign companies from important segments of the Chinese market, such as government procurement, and tries to compel transfers of intellectual property rights for key technologies as the price of market access. This squeezes us at both ends -- shutting many of our innovative products out of the market and stealing the rest.

Holleyman also proposes a possible solution to China's wanton theft of foreign IP and attempts by the same to keep non-Chinese companies from playing on a level field:

[T]he software industry believes it is time for a new strategy to guide the bilateral economic relationship, a strategy that focuses on achieving results -- measured in increased U.S. exports -- instead of never-ending negotiations about discrete issues.

A good recommendation but for China to want to offer outside companies the chance to play on equal footing with Chinese entrepreneurs, they need to start offering them protection for their innovations. Sch a change would allow non-domestic companies' products and services to create profits along the lines of home-grown ones.

TechDirt.com: Mike Masnick has a thought or two to share with the gentle reader on how restaurants have thrived despite the fact that recipes and food ideas can not be copyrighted. His topical post,Lack Of Food Copyright Helps Restaurant Innovation Thrive, highlights the issue by discussing the huge growth in Korean taco trucks in Los Angeles:

As you may or may not know (and trust me, you're better off if you are familiar with this trend), a few years back, some enterprising folks set up a Korean taco truck in LA called Kogi. It quickly became a huge sensation, in part because the food is awesome and in part through smart marketing, including being one of the first food establishments to actively embrace Twitter.

But what happened next is quite interesting. Throughout LA (and now around the country) there's been an explosion of Korean taco trucks. And, it's not just limited to trucks. As the article notes, the large chain Baja Fresh is now offering Korean tacos as well. Believers in strong copyright have trouble explaining why this happens. According to them, without copyright as an "incentive to create" people won't innovate because they can't be rewarded, but that's not what's happening at all[.]

If that teaser gets your attention, be sure to read the rest of Masnick's work to find out just how un-copyrighted food can make for a lively food marketplace with plenty of room to watch the principles of capitalism play out in the wild.

ArsTechnica.com - Law & Disorder: Brazil is aiming to limit the time DRMed files are protected with a proposed update to its copyright laws. Nate Anderson, always on the spot with what's what in IP law, penned up an explanatory piece to help clarify Brazil's position on "fair use." He writes:

Brazil has proposed a broad update to its copyright law (Portuguese) and it contains a surprising idea: penalize anyone who "hinders or impedes" fair use rights or obstructs the use of work that has already fallen into the public domain.

A huge win for consumers? Sure, but it gets better. A moment's thought reminds us that most DRM schemes will eventually run afoul the above provisions, since they apply in perpetuity. That DRMed music file will still be DRMed even after the song has fallen into the public domain.

So Brazil wants to ensure that DRM "has time-limited effects that correspond to the period of the economic rights over the work, performance, phonogram or broadcast." Once copyright has expired, DRM should, too.

As if that's not enough, Brazil says that DRM can be bypassed in order to make any "fair" use of the work or in cases where the copyright has expired but the DRM has not.

This is *not* what most countries understand to be "fair" and it could come to a head if Brazil implements its brave, new policy. For the rest of the story, check out Anderson's complete review entitled US could learn from Brazilian penalty for hindering fair use.

PatLit: The good folks at the IPKat blog managed to connect with White House IP Czar Victoria Espinel for an email interview on the subject of the recently-released Joint Strategic Plan on Intellectual Property Enforcement. Here's one of the question/answer pairs to get you started:

Q: The Plan provides for support for victims of IP infringement. Will victims of patent infringement receive similar services?
A: YES, THE STRATEGY EXTENDS TO INFRINGEMENT OF PATENTS AS WELL.

Looks like there could be some new assistance for person/corporations trying to get their money's worth when it comes to IP infringement lawsuits, whether they be of the patent variety, or other types of intellectual property. Check out Gena Mason's Interview with White House "IP Czar," Victoria Espinel for the full scoop.

Technology Review by MIT: None other than Brad Feld is weighing in on what the SCOTUS Bilski ruling will mean for the software biz. Feld's Sawyer on Why Bilski Really Means That Software Companies Should Leave the US highlights the thoughts of another subject-area expert, friend "Sawyer," but the main point made is worth a moment or two. Here is the relevant section:

U.S. startups will begin [to] locate some portion of their operations abroad.  Although the law is unsettled, and highly dependent on the patents at issue,  the AT&T v. Microsoft and NTP v. RIM cases indicate that moving operations abroad, like the creation of golden masters and the location of web servers, could insulate some portion of a company’s operations from U.S. patent damages, which cannot be extraterritorial.  For sure, locating everything in the U.S. is an invitation for patent plaintiffs to claim worldwide damages on software patent system claims involving a server.

Surely the Supreme Court didn’t intend to drive our most innovative companies abroad, but it may be time for innovators in the U.S. to fight the system the only way that they can when the whole government is out to get them – get out of dodge.

Sounds a bit like Chicken Little cackling about the sky falling. Nothing so extreme is in store for innovative companies in America, dear Mr. Feld, and neither increased legal fees related to intellectual property nor favorable tax circumstances abroad would cause US entrepreneurs to abandon one of the best places on Earth to pursue a startup business.

Bonus IP piece o' the day: AMP v. USPTO after Bilski v. Kappos by Kevin E. Noonan at PatentDocs.

US Supreme Court Bilski Ruling Gets More Op/Ed Love

PC World: David Worthington offers some thoughts on the US Supreme Court's Bilski ruling in his not-yet-stale piece, Supreme Court Decision Raises Software Patent Questions. He writes on why his source thinks that the highest court's decision is far from clear cut and may create some difficulties for those seeking to patent their software programs in the future:

...the Supreme Court handed down a long awaited decision on a patent case that could have changed how or whether software patents are granted. Ultimately, little changed, except that the Court’s decision was at odds with 150 years of patent law, says a legal expert.

[Richard Field, a past chair of the American Bar Association’s section of science and technology law] found it bizarre that the Supreme Court’s majority was willing to allow a lower court to outline a new test while simultaneously chiding it being too activist. The minority suggested that the Court use the established test and said, “Let Congress cover those new technologies. Don’t ask us how new technologies should apply to old words,” he noted.

The Court was clearly struggling with its opinion on whether business method patents were good or bad, Field acknowledged, but sent mixed messages in its decision. The likely result will be a surge in applications for business process patents. “What a patent examiner is supposed to do…I have no idea.”

Unlike Field, I am not a lawyer, but I cannot help but think that the Court’s decision may make it more difficult for new technology to come to market. In that case, consumers lose.

The real proof of the pudding will only be revealed once lower courts have a chance to try some business method and software patent cases and come out with their new tests for patentability. Once some precedence has been established, there might again be a case brought to the SCOTUS for yet another round of pondering and ruling.

Capital Public Radio: In a brief piece, John Sepulvado highlights how the Bilski ruling could favorably affect California's growing bio-genetic business. From his topical Bio Tech Could Get Boost With Assist From SCOTUS we learn more:

Alex Hadjis is a patent attorney with Morrison and Forrester in Washington D.C. He says under current practice , most types of gene therapies cannot be exclusively owned by a person or company. Or as he puts it, “laws of nature and physical phenomena are not patentable.”

Yet, in Re Bilski, the U.S. Supreme Court has now ruled that the current standard for evaluating patents is outdated. That could be a boon for California’s bio tech industry, which has seen several potentially profitable gene therapies rejected for failing to meet current patent standard. Hadjis, along with other patent experts says lawyers, Congress, inventors and companies---even those inventing new genes--- have a new opportunity.  Adds Hadjis, “The Bilski decision, this opens the door to broader patentability.”

New opportunities and new wealth to be made. But by who? That's the question that has yet to be answered. Read the rest of Sepulvado's work for more details via the linked piece above.

TechCrunch: The recent efforts by Federal authorities to shut down a number of domains that host illegal files, and of great interest in these examples, movie files, have a new threat to contend with: offshore movie file streaming domains. Erick Shonfeld's aptly-titled TV Shack Flouts The Feds By Moving Video Piracy Site To Offshore Domain sets the stage for the gentle reader:

Last week, the Feds shut down nine video sites for piracy and copyright violations. The enforcement was a combined effort by the Department of Justice, U.S. Immigration and Customs Enforcement, and a the National Intellectual Property Rights Coordination Center under the Department of Homeland Security. It is the new Intellectual Property Police, and they are fighting to save Hollywood.

But the battleground for the war on illegal move file sharing has moved to a more defensible position that might cause a bit of heartburn for those trying to squash them. Here's another related passage by Shonfeld:

Of course, it only took a few days for at least one of the sites to reappear at a different domain. TVshack.net, for instance, is now at TVshack.cc. There you can watch full streams of bootleg versions of The Twilight Saga:Eclipse (filmed in a theater with people standing up and casting shadows on the screen, see below), Toy Story 3, True Blood, and other movies and TV shows. The .cc domain is administered by the Cocos Islands, which is a territory of Australia. The company is based in Stockholm, Sweden. Another one of the shuttered sites has reappeared at www.watch-movies-tv.info, but it no longer offers streaming movies.

There is a price to pay for this "free" movie streaming stuff: pop-up ads and terrible quality. But that won't stop some hardcore pirates from pursuing these unlawful movies, where ever they may be found. I wonder if ACTA's passage would help to knock out more of these nests of pirated movie files?

Ghana News Agency.org: Intellectual property protection and enforcement efforts are spreading quickly and like any hot topic, Africa is bound to be an eventual participant. Enter: Ghana, stage right. Our unknown guide to Ghana's new program on helping bring IP law to a more modern level offers additional insights via a recent post, Ghana is set to transform management of intellectual property rights. He or she reports on this Swiss-funded plan:

Ghana on Tuesday set out structural indicators for modernisation of the country's Intellectual Property Rights (IPR) regime in conformity with international best practices.

These include the provision of transfer of technology among key stakeholders on operations of IPR, create avenue for innovation to enhance productivity and facilitate trade and industrial competitiveness.

Along with those tidbits come these additional nibbles:

...the project was to ensure that National Intellectual Property Policy was articulated, explore avenue for enactment of legislation in all areas of TRIPS Agreement and make it fully operational, updated and completed.

It also has a component for increasing public awareness and understanding of intellectual property issues, continuous sensitisation of the Judiciary on IP issues, establishment of efficient automated industrial property management system and institutionalisation of electronic Copyright Register.

Great news from an unexpected corner and with Swiss involvement, the new project is bound to run like, well...a Swiss train.

MetroCorpCounsel: Looking for an IP-related event to attend? Look no further! The good folks at The Metropolitan Corporate Counsel website inform and entertain your wishes with this, their latest IP meeting announcement:

On Wednesday, July 14, the Practising Law Institute and the Pennsylvania Bar Institute will host a seminar for all practitioners who would like gain an understanding of patent law.

The goal of the sessions will be to demystify patent law for the general practitioner or those looking to expand their intellectual property focus. The seminar will take participants through all aspects of patent law, from the filing of a patent application all the way to infringement issues. Attendees will learn the touchstone of patentability, the basics of filing a patent application, how long it may take from filing to issuance, what the details of patent prosecution involves, the costs involved in patent prosecution, and filing and infringement issues.

One need not be a specialist in IP to attend, no sir, just have a hankering for some no-holds barred, "all aspects" IP fun. You can find out how much the event costs and where/when it will be held by clicking through and reading PLI Philadelphia Conference - The Basics Of Patent Law.

Bonus IP piece o' the day: The Bottom Line on Bilski: Good or Bad for FOSS? by Katherine Noyes at Tech News World.

Independence Day

Happy 4th of July, Innovat0rs Network Readers!

Join us tomorrow for another post on intellectual property.

US Supreme Court Finally Releases in Bilski Opinion

ArsTechnica.com - Law & Disorder: Today's release of the US Supreme Court's opinion on the long-languishing in re Bilski case affirms the patentability of business methods and software but leaves some crucial legal questions unanswered. Nate Anderson provides some additional details in his timely piece, Supreme Court: "business method" and software patents OK. Anderson writes:

Many Bilski watchers hoped the court would uphold the "machine or transformation test" exclusively and put the kibosh on business method patents and on software patents. That didn't happen; in fact, the majority opinion says that "the machine-or-transformation test would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals."

"Machine-or-transformation" instead remains a valid patent test, but it's not the only one that can be used. Software patents and business method patents are still valid—but the Supremes did suggest that such intangible patents should be more difficult to get.

While saying that business method patents are allowed under the law, this "does not suggest broad patentability of such claimed inventions," said the opinion. And the court explicitly invited the Federal Circuit Court of Appeals to introduce further patent limitations.

Anderson points out that the Supreme Court's decision could complicate matters for businesses, who might end up spending many anxious hours scouring patent documents to make sure they aren't violating some one else's patented method of refilling the office vending machine, so there remains much to be determined with regards to the eventual fallout from the Bilski ruling.

TechDirt.com: In a recent post, Mike Masnick features a list of questions to be asked of the ACTA negotiators in Switzerland, where the latest round of meetings are taking place, by Sean Flynn from the Program on Information Justice and Intellectual Property at American University. Here just one of the 10 questions Flynn hopes to put to the group:

10.There have been no open hearings or other engagements with civil society since the text was released. Will you commit for the establishment of consistent mechanisms for the ongoing engagement of civil society? More generally, how are you going to fix the process to encourage greater public deliberation on the record, with access to text, and in a meaningful setting? And how are you going to fix all of the specific concerns raised in the previous questions and in all the critics upon ACTA made until now?

Read Masnick's Questions For ACTA Negotiators for more of the proposed questions and be sure to check out Flynn's related presentation entitled "ACTA v. Access to Medicines."

PatLit: A common practice used by big pharma to restrict the production of generic copies of patented drugs after the patent expires is coming under closer scrutiny. Known as "pay-to-delay," the practice costs drug consumers billions of dollars in higher pill costs while ensuring that cheaper, and legal, alternatives don't see the light of day. Gena Mason's topical post, Amici challenge pharma pay-for-delay, takes a closer look at the so-called "reverse payment" issue:

Last month the U.S. government's Federal Trade Commission (FTC) and a group of 86 professors filed separate amicus curiae briefs asking the court to grant en banc review. Long opposed to reverse payment deals, the FTC argues in its brief that the Tamoxifen decision "protect[s] undeserved patent monopolies" and "improperly undermines the balance ... between the public interest in encouraging innovation and the public interest in competition." The FTC also cites studies indicating that getting rid of pay-for-delay could save consumers roughly $3.5 billion annually, and that "a one-year delay in generic entry represents ... a transfer from consumers to producers of about $14 billion."

Such payments are not strictly illegal, but they do go against the spirit of the limitation of intellectual property rights once a patent expires. Also of importance are the millions of patients who suffer (not only financially) when important and potentially life-saving drugs are kept at artificially-high prices by collusion between big pharma companies and generic drug manufacturers.

Reuters.com: President Obama recently gave a verbal boost to Russia's on-going bid to join the World Trade Organization (WTO) but there appear to be many issues yet to be addressed before the last large country without membership in the important organization can join in. Doina Chiacu reports on what remains for Russia to do before admittance to the WTO in U.S. piracy concerns looms large over Russia's WTO bid.

Obama and Russian President Dmitry Medvedev said at a news conference on Thursday they would push their negotiators to finish work on Russia's bid in coming months.

Russia, the largest economy still outside the rules-based world trading system, has been trying to join for 17 years.

Moscow often complains it is being held in the WTO talks to a higher standard on intellectual property rights enforcement than earlier entrants, such as China.

Besides implementing a more rigorous set of IP enforcement laws, Russia also needs to increase the strength of its actual enforcement efforts, according to a US Trade Representative spokesperson. Should Russia come into compliance with all remaining IP-related problems, the US itself still has a bit of legislative work to do before relations are completely normalized with its one-time Cold War enemy.

If Obama is successful in shepherding Russia into the WTO, he will have to ask Congress to approve "permanent normal trade relations," or PNTR, with Moscow by removing a Cold War trade provision known as the Jackson-Vanik provision.

Chiacu points out that the Chinese PNTR agreement remains a sore point for US laborers, some of whom believe that the normalization of trade with China has cost America jobs, income and some of its national pride.

Bonus IP piece o' the day: Leak: EU pushes for criminalizing non-commercial usages in ACTA via La Quadrature Du Net.

“Unicorn – The New White Meat” April Fool’s Day Parody Might End Up In Court

Above The Law: An April Fool's product parody has attracted the wrong kind of legal attention and provides some support to the argument that lawyers sometimes don't have a good sense of humor, nor do they understand exactly what qualifies as protected speech. Elie Mystal provides more details of this humorous example of misguided "cease and desist" behavior in his topical piece entitled Misadventures in Trademark Law: Faegre & Benson Helps Pigs Fight Unicorns. He writes on the Canned Unicorn Meat foofarah:

As a connoisseur of unicorn delicacies, I was annoyed when the ThinkGeek people exposed this product to the general pubic. We’ve already got the Care Bears on our ass; we certainly don’t need PETA getting wind of this tasty treat.

But who knew that this entirely fictional April Fool’s joke would come to the attention of the National Pork Board and their legal representatives at Faegre & Benson…

ThinkGeek reports that they received a cease-and-desist letter from attorneys at Faegre & Benson.

Of course, ThinkGeek's use of the phrase "Unicorn -the new white meat" is certainly allowed when included in a parody, which is clearly the case in this instance. One hopes the National Pork Board will deny payment for any legal fees attached to this misguided attempt by Faegre & Benson to protect the NPB's slogan.

The 271 Patent Blog: Peter Zura highlights the recent comments made by Chief Judge Randall R. Rader and former Chief Judge Paul R. Michel of the U.S. Court of Appeals for the Federal Circuit in an interview with Matthew Dowd, a litigation and appellate attorney in Wiley Rein's Intellectual Property and Food & Drug practices, and one portion of his quoted material stands out. From Zura's Rader, Michel Weigh in on the Patent System and Patent Reform, some thoughts by Michel on patent litigation and PTO salaries:

... I think American civil litigation in general, commercial litigation of which patent enforcement is a part, could be improved by reforms in discovery and in motions practice. My impression is there’s a lot of excess discovery—very costly, very time consuming, and very disruptive to the companies involved. Millions and millions of dollars in a patent case can be spent on just complying with discovery demands. I’m very impressed by the comments of magistrate judges, for example, who talk about how, after all the discovery and disputes are complete, 99.99% of the discovered material turns out not to be relevant to trial, and not used at trial. In a way, it was all a waste, looking at it in hindsight. So, if I could redesign the American litigation system to be more like the British high court in London, where most of the patent cases are tried much faster and cheaper than here, I’d favor that.

A good suggestion but one that might reduce legal billing amounts to pauperous levels, methinks. Check out the rest of Zura's piece for additional comments on research and development and USPTO Chief, David Kappos.

ArsTechnica.com - Infinte Loop: Apple is kicking things up a notch in its HTC lawsuit battle royale. Chris Foresman offers more information on a recent move to hit HTC where it hurts in his topical piece, Apple piles more patent infringement claims on HTC. Foresman writes:

Apple on Monday filed an additional lawsuit in Delaware federal court, alleging that HTC and its subsidiaries are infringing on four recent Apple patents. The patents in question include one awarded in February of this year for using a touchscreen gesture combined with a specific "unlock image" to unlock a mobile device. The other three are related to saving power by reducing voltage to specific parts of a processor and to adjusting a display to account for "real-time changes" in configuration, including adding an external display.

Apple is asking for 3x damages, an injunction against HTC, and full payment of legal fees by the defendant. Wow. Things are starting to get nasty in the smartphone IP infringement world, aren't they?

National Journal - Tech Daily Dose: Juliana Gruenwald's topical post, Groups Outline 'Flaws' With ACTA, features the opinions of a select assembly of "public interest groups, foreign lawmakers, academics and others" on the proposed legislation's faults. Here's a representative take-away portion of the piece:

They outlined several problematic provisions pointing in particular to the language related to the Internet. The statement claims the agreement would encourage Internet service provides to "police the activities of Internet users by holding internet providers responsible for the actions of subscribers, conditioning safe harbors on adopting policing policies, and by requiring parties to encourage cooperation between service providers and rights holders." It also claims that it would encourage other countries to adopt "anti-circumvention" provisions similar to those included in the United States' Digital Millennium Copyright Act targeting technology that can override intellectual property protections.

Gruenwalk also points out that the United States' IP Czar, Victoria Espinel, does not see ACTA as a means to change US law, but rather as a tool "critical to increasing [cooperation] among international law enforcement officials and U.S. trading partners in combating counterfeiting and piracy."

TechDirt.com: Mike Masnick is never slow on the draw, and with this week's release of the White House 2010 Joint Strategic Plan On Intellectual Property Enforcement, he's got plenty of fodder for his copyright campaign. In his White House's IP Strategic Plan Not Nearly As Bad As Expected; But Not Great Either, Masnick reveals an unusually balanced response to IP Czar Espinel's suggested IP enforcement regimen:

The report definitely still leans towards stronger and stronger enforcement and protectionism -- despite all of the evidence suggesting this doesn't actually help to "promote the progress." But there are some hopeful signs that they at least realize that there's more to copyright than simply protecting the entertainment industry's business model. Thankfully, it talks about "effective enforcement" rather than just "more" enforcement. It discusses "promoting innovation" rather than just "strengthening protections." There is plenty in the report that is problematic as well, but there is, at least, some recognition that only strengthening copyright has costs as well.

Well said, Mr. Masnick. Be to read Masnick's complete comments and view a copy of the IP enforcement plan at the link above.

Bonus IP piece o' the day: Crack Down On Intellectual Property Theft by Jennifer Martinez at the LA Times.

A New Defensive Strategy To Fight NPEs

PatLit: Non-practicing entities (NPEs), sometimes known derisively as "patent trolls," are facing a new challenge when trying to round up technology patents for use in intellectual property (IP) lawsuits. Gena Mason's topical blog post, Fighting trolls with fire, details this a new, defensive move by companies to strike back. She writes:

Faced with mounting costs and headaches stemming from litigation by NPEs (non-practicing entities, or "patent trolls"), more and more operating companies are resorting to a novel means of addressing the problem. As part of their defensive patent strategy, tech giants (and top troll targets) Microsoft, Sony, and Nokia recently joined with startup company RPX.

In business for a little over a year, RPXranks among the pioneers in the Defensive Patent Aggregation movement. It was created to offer operating companies a solution to the growing problem of lawsuits from NPEs. Until now, most companies have had to go it alone in mounting costly, risky, and unpredictable legal defenses. RPX criticizes the NPEbusiness model for creatinginefficiency via high transactions costs. But unlike Microsoft and others who have lobbied the U.S. Congress in the hopes of securing anti-NPE legislation, RPX insists that "[t]the optimal remedy" for NPE patent assertions is a market solution, or "fight[ing] fire with fire."

The success of such defensive patent purchases has spawned a number of similar efforts to carefully buy up patents as a form of group insurance against possible NPE lawsuits and will probably throw a monkey wrench into the strategeries of those hoping to cash in on lucrative infringement settlements.

Mondaq.com: A recent IP-related article by Robert E. Rudnick and Andrew M. Grodin takes an in-depth look at how to best craft an intellectual property defense plan and explains why not carefully considering the ramifications of a poorly-prepared strategy could end up costing dearly. From Rudnick and Grodin's United States: Drafting And Negotiating Intellectual Property Defense And Indemnification Provisions - What You Don't Know Could Cost Your Clients Millions the gentle reader learns the secret to IP success:

Sales agreements and licenses may by the driving force for a significant number of companies generating revenue today, but it is a properly drafted intellectual property ("IP") defense and indemnification provision that will enable management of certain liability risk and protection for a client down the road. Whether acting as outside counsel drafting a license agreement for a client or as in-house attorney looking to update an employer's standard sales and services agreements, IP defense and indemnification clauses are an area that is often overlooked until it is too late. Particular industry customs and the concerns of important customers play a large role in shaping IP defense and indemnification provisions in purchase and/or license agreements. However, proactive private practitioners and in-house counsels should use these provisions to manage a clients' risk of liability by narrowing and carefully drafting and negotiating these often glanced-over provisions.

To find out more about the outlines and provisions for protecting your valuable IP as mentioned above, read the rest of this jointly-authored guide and put your new knowledge to work for your entrepreneurial venture.

The Chamber Post: Dr. Mark P. Esper offers his thoughts on what lies in store for people who illegally share or download digital files of movies, music and other protected content in his timely article, IP Plan May Have Pirates Walking the Plank. Dr. Esper highlights the lost value of stolen US IP:

Not surprisingly, because of the great value that America’s IP-intensive industry bring to our economy—well over $5 trillion at last count—criminal organizations around the globe, and a number of countries as well, are trying to steal our “creations of the mind” for their own gain.  The United States’ creative community, whether known through Hollywood movies, New York publishing houses, or Nashville studios for example, is undoubtedly the world leader in entertainment and a tragic case in point.  The recently released 2010 Watch List by the International Congressional Anti-Piracy Caucus shows that the ideas and products of America’s artists and creators are increasingly at risk from online piracy.   

Online piracy, or the digital theft of movies, music, books and other content, is a job-killing crime. Studies by the Institute for Policy Innovation estimate that every year global music piracy leads to a loss of over 71,000 jobs, $12.5 billion in economic growth, and $2.7 billion in workers' earnings. The U.S. entertainment software industry estimated losses of over $3 billion in 2007 due to piracy. And piracy contributed to a loss of $18.2 billion in the global film industry in 2005.  These numbers will only get exponentially worse as Internet access expands and broadband speeds increase.

Interestingly, Dr. Esper doesn't reference the US Government Accounting Office's (GAO) numbers of the amount of financial damage done to American businesses but rather sticks to the  $5 trillion number as the value of lost sales due to piracy. To find out how Dr. Esper proposes to attack this financially-crippling problem, be sure to read the rest of his piece at the link above.

Information Week: A maker of chips for mobile wireless products is under scrutiny again after a competing company lodged a complaint with the European Commission claiming anti-competitive business practices. W. David Gardner reports on the situation in Qualcomm Faces EU Antitrust Probe Again:

UK semiconductor startup Icera has lodged a complaint with the European Commission, charging Qualcomm with anticompetitive behavior, according to reports from European media sources Thursday.

Qualcomm has been embroiled in a series of patent disputes over the years and recently settled long running litigation with Nokia and Broadcom. The Icera complaint could open up a new investigation. Qualcomm said the Icera charges are “meritless.” Earlier complaints in the EU against Qualcomm were withdrawn a few months ago.

At this point, Qualcomm should have the legal wherewithal to successfully defend itself against claims by Icera that its practices are worthy of an EC probe and with Icera's recent delay of its IPO, the case might not make it very far without the injection of a large amount of ready cash to spend on legal fees.

MercuryNews.com: A patent lawyer finds himself on the wrong side of the bar after trying to bribe his way out of the latest in a string of DUI arrests. Palo Alto patent attorney pleads not guilty to bribery and DUI charges explains:

Richard Chae, 37, entered his plea in San Mateo County Superior Court to one count each of felony bribery and misdemeanor driving under the influence, Chief Deputy District Attorney Steve Wagstaffe said. Chae is out of custody on his own recognizance and due back in court Oct. 18.

Colma police officers pulled over Chae, who has two previous drunken driving convictions from 2002 and 2003, in February and determined that he had been drinking, Wagstaffe said. But when they went to arrest him on suspicion of driving under the influence, he allegedly offered the cops $900 to let him go.

Chae's defense lawyer has an interesting explanation for his behavior, so be sure to check out the whole expose for yourself.

Bonus IP piece o' the day: Solo, Hillenbrand, Wal-Mart: Intellectual Property (Update1) at Bloomberg Businessweek by Victoria Slind-Flor.

Tips On Negotiating China’s Intellectual Property Laws

China Law Blog: For a short primer on how foreign businesses can better navigate intellectual property laws in the world's most populous nation, check out Top Seven Intellectual Property Mistakes By Foreign Companies Doing Business In Or With China. Here's the first of Dan's tips:

1.  Failing to use employee invention agreements.  True of China as well. These agreements essentially require new hires agree to report anything to the company that they invent that result from any work performed on behalf of the company or relate in any manner to the existing or contemplated business of the company, or result from the use of the company's time, material, employees, or facilities. They also mandate that any such inventions are assigned by the employee to the company. These agreements make sense in China as well.

Dan also recommends a number of other things a business can do to better protect valuable intellectual property assets when operating in China, so be sure to read his entire piece at the link above.

Reuters.com: The maker of a popular series of software programs aimed at helping people learn foreign languages has come to agreements with a number of individuals accused of pirating its products. Sayantani Ghosh in Bangalore has more details in UPDATE 2-Rosetta Stone settles trademark infringement cases.

 Language training software maker Rosetta Stone Inc (RST.N) said it settled trademark and copyright infringement cases with 10 individuals.

"They agreed to stop selling pirated software and we have reached civil settlements with each of them," the company's general counsel, Michael Wu, said by phone.

In a statement, Rosetta Stone claimed these individuals pirated software, including the unauthorized copying, downloading, sharing and selling of counterfeit Rosetta language learning software.

The company's stock price saw a bump up after news of its agreement with the accused. Rosetta is also considering appealing a previous ruling by a federal judge that dismissed its case against Google for selling keywords related to its software to pirates, according to the piece.

TechCrunch.com: Two tech titans are burying the hatchet after doing battle for years over disputed patented innovations and infringement thereof. Robin Wauters reports on the terms of the agreement that includes a cross-licensing arrangement among other accommodations in her topical piece entitled Motorola And RIM Make Peace, End All Outstanding Litigation Worldwide. She writes:

Motorola and RIM will “benefit from a long-term, intellectual property cross-licensing arrangement” going forward. The agreement involves all parties receiving cross-licenses of various patent rights, including patent rights relating to certain industry standards and certain technologies, such as 2G, 3G, 4G, 802.11 and wireless email.

In addition, the parties will transfer certain patents to each other.

For more information on this long-awaited detente, be sure to read all of Wauters' thoughts via the piece linked to above.

Forensic Focus: A computer forensics company has been granted a US patent for its proprietary software products used in a variety of computer-related investigations. USPTO Awards Key Patent to ADF Solutions for Digital Forensics covers the story nicely:

ADF Solutions, Inc., a provider of forensic triage tools for computers and peripherals, has announced that it has been granted a patent by the U.S. Patent and Trademark Office pertaining to methods of searching forensic data. The patent has critical applications for forensic triage, cyber-security, cyber-intelligence, digital forensics, and e-discovery. The patent covers the company's innovative SearchPak® technology, which enables an organization to capture its digital forensic investigative strategy and share it across organizations and with other individuals while not revealing the actual content...

A good software application can be critical when security and privacy are key concerns in any on-going forensic efforts and should help ADF Solutions gain a firm foothold in the forensic triage tool market place.

Mondaq: The European Court of Justice (EJC) has made a ruling in the case of Google's adword system as it applies to patented, or otherwise protected, material. Here's the summary of the case courtesy of Susan Barty, Tom Scourfield, Susie Carr and Isabel Davies in their jointly-authored article, United Kingdom: ECJ Rules on Austrian Google AdWords Dispute:

The European Court of Justice ("ECJ") has ruled on an Austrian dispute concerning the legality of Google's AdWords system in relation to an alleged trade mark infringement. The decision follows the recent and much-publicised Google France case, in which it was found that it is possible for the display of a sponsored advertising link to mislead an 'average internet user' as to the origins of the goods/services, and therefore could constitute trade mark infringement by the advertiser.

The ECJ strictly followed the guidance that it laid down in response to the Google France case (see our recent Law-Now ) and ruled that, generally, the owner of a trade mark cannot oppose the use of a sign identical or similar to its own mark unless that use is liable to cause detriment to any of the functions of that mark. However, it is always for the national court to decide on a case-by-case basis whether or not the use by a third party of a proprietor's trade mark as a keyword on Google constitutes such detriment, and as such is use that the proprietor should be entitled to prevent.

There are still some questions on Google's sale of keywords to other than the holder of the trademark or copyright on a certain term, or collection of terms, but these will be addressed by the EJC in the coming months, according to the authors.

Bonus IP piece o' the day: Patent Nonsense - some problems with the current Patent Copyright and IP system at Next Big Future.