South Korea Starts Sweeping Investigation Into Patent Abuse

The 271 Patent Blog: Peter Zura features South Korea's move to curtail patent abuses by companies foreign and domestic in his recent post entitled South Korea Launches "Largest-Ever" Antitrust Probe on Patent Abuse. Zura calls out a quote from Mobile Business Briefing to help explain the situation:

Companies with market dominance and widespread technologies that have become industry standards will be targeted,” said Kim Jun-beom, director of the FTC’s market supervision team. “Foreign companies that have a large influence on the domestic market also will be targeted.” Although the government's specific targets are unknown, experts say the probe will likely cover large domestic firms such as Samsung, LG and Hynix Semiconductor. The investigation is thought to be part of a crackdown by the government on alleged abuses by large corporations, including alleged unfair practices toward smaller companies. “Local small and midsize enterprises have suffered considerable damage from patent-related abuses by large domestic and foreign companies,” Kim said.

Whoa, nelly! Talk about a bucking bronco of an announcement and one that should help home-grown Korean medium and small (SMEs) businesses compete on a more even playing field than is currently the situation. The probe is not limited to outside businesses, mind you, and Zura notes that the investigation will target Korean businesses for wrong-doing starting in the middle of September with other potential unfairly competing companies coming next.

IPWatchdog.com: A major non-practicing entity (NPE) has garnered some careful attention from IP pundit Gene Quinn, the President and Founder of IPWatchdog.com, who pulls no punches in voicing his thoughts on the company's tactics in his topical piece, Mother of all Patent Trolls, Acacia Research, Gets More Funding. Quinn quips:

Technology companies have for far too long engaged patent trolls in a game of hunter and huntee, where the part of the prey is played by the technology giant who seeks to make and sell inventive products and offer innovative services. Much like the deer in the woods, who are not armed, they are shot by the hunters (i.e., the patent trolls) who are armed. Since patent trolls have nothing to fear in terms of a counterclaim (because they are not making or selling anything) they can fire at will without concern of being fired upon. In short, the strategy that technology companies employ is one that is likely to being shot at ever increasing rates. Add onto that the fact that in many situations the technology companies actually lose and lose big in patent infringement litigation, and add in the factor that they frequently settle, and it is hard to criticize any business person for making the choice to be a patent troll. In fact, being a patent troll seems like an almost guaranteed way to make money these days.

And, it could certainly be argued that business are in the business of making money, so NPEs that show strong tendencies towards profitability might attract a certain kind of investment-minded person that is looking only at the bottom line and not taking into account the ethical/moral concerns that Quinn seems to be focusing in his piece. Be sure to read all of the above linked work for more thoughts on why NPEs/patent trolls who "greatly overstate their case and send cookie cutter, non-specific and intellectually dishonest demands to technology giants" should be reigned in.

The CIPA Congress, IP in the New Decade, which takes place in the Lancaster Hotel, London on 30 September and 1 October, is extra sweet this year due to an offer by the crew at IPKat to pay for the admission of one lucky soul who wins their competition. The value of the prize is a non-measly 1075 pounds Sterling and should be a great way for the less-monetarily endowed to attend this excellent IP event sans cash outlay. You can find more on the contest rules here and read all the pertinent details courtesy of Jeremy Phillips in his related article, Now you can win without even going to court.

Patent Baristas.com: Stephen Albainy-Jenei comments on a CBS piece featured in this very blog the other day in his August 10th entry, CBS News Highlights Growing Backlog at the U.S. Patent & Trademark Office. Here's what Albainy-Jenei shares with the gentle reader regarding the well-known admission of the USPTO's terrible pendency troubles:

...[W]ith an average wait time of 36 months and a backlog of 700,000 applications, Patent Office Director David Kappos says speeding up the process will help the economy. “The backlog is indeed our biggest problem. It represents innovations trapped in this agency that otherwise could be creating jobs.”

Kappos wants to cut the waiting time from 36 to 20 months and the backlog in half but he needs more money to hire an additional 1200 patent examiners and update computers. “It’s no taxpayer dollars at all– all the fees we collect come from patent applicants.”

Congress sets the fees charged by the patent office. The legislative branch also does not permit the patent office keep all $2 billion in its annual revenue, by diverting $200 million dollars a year for other federal budget items.  Legislation that would end fee diversion and empower USPTO to adjust its own fees is pending.

There is also a note to the effect that patent applicants would be willing to pay additional costs to process their submissions if it would mean a quicker turn-around, which would be a boon to time-sensitive innovations that are only valuable if capitalized on post haste.

Fashionista.com: Only a few days ago, New York Senator Charles E. Schumer penned a bill in the US Senate called the Innovative Design Protection and Piracy Prevention Act that would re-write the rules of fashion intellectual property with more protection for innovative fashions that qualify as "the most original design." Lauren Sherman has more on the subject in Why the New Intellectual Property Bill Might Tranform the Fashion Industry. She writes on the bill's long genesis:

The bill was passed by the House of Representatives in April 2009. It was then amended with input from different groups within the fashion industry, and is now being presented to the Senate. If it passes in the Senate, it will become a law. (As long as the President signs off on it, that is.)

We know that the law will help to protect original designs from piracy, but how? Susan Scafidi, an intellectual property attorney and author of the popular fashion law blog Counterfeit Chic, broke it down for us. PS: If you’re interested in fashion and intellectual property law, you should be following Scafidi. She teaches a fashion law course at Fordham Law School and has been instrumental in launching Fordham’s Fashion Law Institute, where she serves as Director.

This would be quite the sea change in a marketplace where designs are *expected* to be pirated and copied and could create additional innovations in the lower segments of the fashion world which have only been duplicating leading ideas at knock-off prices and qualities in the past.

Bonus IP piece o' the day: How Fifty Percent Of China's 'High Tech' Companies Are Actually Fake by Vincent Fernando at Business insider - Money Game.

Stan Lee Battles For “Super Seven” Rights

KSN.com: Graphic novel maven Stan Lee has been on the other end of legal battles over intellectual property but this time he's the target of a lawsuit claiming his use of the term "Super Seven" infringes on a toy company's trademark. Stan Lee sued over trademark has the story for the gentle reader:

Lee, the man behind Spider-Man and the X-Men, is facing legal action from bosses at toy company Super 7, who claim they own the trademark to their name.

Lee announced plans for his latest multimedia series at Comic-Con, but Super 7 executives allege they tried to stop him going forward with his plans in February.

They claim they wrote a letter outlining their trademark rights and were told that Lee would "move in a different direction" and "develop another mark", according to the complaint, filed in the U.S. District Court in California.

Mr. Lee's pockets must be pretty deep these days, so the battle ahead might be of epic proportions. Maybe someone will break out their cape and special powers to help win the fight for Super 7/Seven world domination!

PC World: Chris Brandrick reports on Apple's patent filing for a bicycle accessory in his topical article entitled Here Comes the iBike? Apple Files Patent for a Bicycle Accessory [Updated].The update to the original article is due to a mistaken assumption that Apple was attempting to patent a bicycle, which as we know, would not be a patentable idea unless it included something novel and/or non-obvious, like say, a connection to an Apple gadget? Brandrick writes:

The patent application, which was published by the US Patent & Trademark Office on August 5, highlights Apple's concept for what they are calling a 'Smart Bike'. The bike patent application, which Patently Apple likens to a Nike + for cyclists, details a system which would allow bike riders to log and wirelessly share information about cycling routes.

Apple's Smart Bike patent, which was originally filed for during the first quarter of 2009, would log a whole host of cycling information, with a heavy emphasis on sharing data. This information would include cycling speed, distance traveled, time, altitude, incline, decline and more. A users heart rate would also be collected.

According to the patent, this range of information would be collected via a connected iPod or iPhone and built in sensors. What the integrated technology to measure these cycling metrics would be is any ones guess. But accurate heart rate sensors in the handlebars, accelerometers and on-board GPS would all seem to be fairly safe bets.

Nothing new here, as Brandrick notes, since small bike computers have been rolling around for decades, but the implementation of such a system with an iPhone or other smart gadget, takes exercise data gathering to the next level and might qualify for protection under USPTO rules.

ArsTechnica.com: Jacqui Cheng covers Apple's most excellent purchase of intellectual property related to Liquidmetal's special blend of alloy metal in her topical piece,"Amorphous" metal alloys to slip into Apple products soon. She writes:

Liquidmetal's technology is used in the fields of sports, medicine, space, jewelry, and of course, electronics. Whereas a typical metal has a crystalline atomic structure (a repeating pattern of crystals), an "amorphous" metal alloy basically has no crystals. This allows manufacturers to tweak the precise configuration of the alloy without worrying about the usual structural or strength limitations.

As such, Liquidmetal brags that its products are not only strong and resistant to impact/fatigue, they are also lighter than comparable products made out of normal metals.

The agreement between the two companies was signed last Thursday, but was not revealed until the publication of the 8K this morning. Liquidmetal's technology has previously been used in Nokia and Sandisk products, but no more—Apple now has "perpetual, worldwide, fully-paid, exclusive license to commercialize such intellectual property in the field of consumer electronic products."

This news definitely falls in the category of "cool beans" so be sure to look for some new and exciting Apple-designed devices in the near future featuring "Terminator-esque" metals.

Excess Copyright, the topical blog authored by Ottowa, Canada-based Howard Knopf, tackles the tricky subject of Access Copyright's proposed fee to students in his recent post, Access Copyright’s excessive $45 per university student proposed tariff - August 11, 2010 deadline. Here's some of what's got Knopf excited:

$45 is not a misprint. Moreover, it’s more than 13 times the current base amount per student. The good news, as if anyone would possibly see it that way, is that it’s all inclusive and doesn’t require the intensely disliked $0.10 per page course pack fee. That’s not really much of a concession since the use of photocopied course packs is rapidly becoming obsolete, rather like blank CDs. The future lies in e-reserves and other legitimate uses of the new technology that could soon make Access Copyright itself obsolete if universities decide to exercise their technological and legal options.

The bad news is that this figure is exorbitant and AC is arguably not entitled to much if not most of this money. It is seeking to charge for all sorts of uses that are simply not covered by copyright law or which are or should be regarded as fair dealing according to the Supreme Court of Canada’s landmark decision in the 2004 CCH v LSUC decision. AC also has serious “repertoire” and rights problems, discussed below. AC wants educators and students (i.e. taxpayers) to pay for much stuff and uses that are or should be free, if the law is properly understood and applied. And, as indicated above, AC may have a big gap in terms of digital rights in the very limited actual repertoire that it has in its system. I will, at a later date, blog about its other “repertoire” problems for those who have not read my analysis published about a decade ago.

Interesting analysis by one of our neighbors to the North. As works progress into the digital realm, it becomes clearer that gathering royalties and payments is getting much more difficult for rights owners but at the same time, as those works become more widely available, the potential to make more money using a lower cost amount to the end consumer also increases. Balance is needed and charging students (read: taxpayers in the case of Canada) a significant fee won't encourage compliance with any IP rules since students might interpret such a payment as free license to steal whatever IP they want.

The News Star.com: Dr. Mark DeCoster, associate professor of biomedical engineering at Louisiana Tech University, has been issued a patent by the US Patent and Trademark Office (USPTO) for his novel bio-medical device. More information can be found here: Tech professor, researcher receives patent for electromagnetic technology. A sample of the coverage of Dr. DeCoster's electromagnetic device for the constant reader:

According to DeCoster, the invention allows users to see the electromagnetic probe within the microscopic field, enabling them to more easily observe and position the probe in relation to the magnetic materials. Prior to this invention, researchers had to use fixed magnets, which were hard to position, and often bulky.

The probe, as an electromagnet, can produce variable magnetic fields, as well as pulsed fields, and can be used in combination with a microscope for visualization, a micromanipulator for spatial control and a catheter or endoscope for medical purposes.

DeCoster says the device is relatively inexpensive to build, and can be used both in air and in liquid, which is of great benefit for medical applications. The device can also be used to effectively control magnetic materials at both the nano- and micro-scale.

A great reward for what must be many thousands of hours of work by the good doctor and his team of research assistants.

Bonus IP piece o' the day: CAFC: Inconsistent Characterization (and Partial Disclosure) of Disputed Prior Art May Lead to Inequitable Conduct by Peter Zura at The 271 Patent Blog.

Berne Convention Paved The Way To Modern IP Protection

Helium: D. Vogt tackles the contents of The Berne Convention, which is one of the seminal pieces of legislation that laid out intellectual property protections and rights. In his aptly titled piece, Intellectual Property law: Rules governing the Berne Convention, Vogt writes on many aspects of this 19th Century legal work that still rings true down through the years, including this historical passage:

The Berne Convention was the product of a public campaign by the French International Literary and Artistic Association (ALAI), an organization founded several years before by Romantic writer Victor Hugo to call for stronger legal protections for writers. Copyright laws were not a new invention during the 1880s: indeed, in America, the foundations of both copyright and patent law is enshrined in Article I of the Constitution. However, at the time copyright laws were simply a lengthy series of national legislative initiatives. Not only did the specifics of these laws differ in varying countries, but it was understandably difficult to enforce one's copyright privileges in foreign countries. A French work, for instance, would be protected by French copyright law only in France, but not in neighbouring Germany or Britain.

From Vogt's writing, it's easy to see how having a unified approach to copyright law in Europe would help spawn additional creative works by the likes of Victor Hugo because the publication of protected books would then be directly coupled with the collection of royalties. The protected works would also be subject to the rule of law which  previously lacked the authority to pursue the theft of IP in a unified, meaningful way. Be sure to read the rest of the piece at the above link for more details on the origin of modern European (and, arguably, American) copyright law.

TechCrunch.com: An ex-software programmer has turned against the hand that once fed him: his patents, that is, and has decided that patents for software applications need to be banished immediately, if not sooner. Vivek Wadhwa is the coder-turned professor in question and in his topical Why We Need To Abolish Software Patents he explains the thinking behind his radical proposal. He writes:

Patents make a lot of sense in many industries; they are needed to protect the designs of industrial equipment, pharmaceutical formulations, biotechnology products and methods, biomedical devices, consumer products (toothpaste, shampoo, contact lenses, etc.), advanced materials & composites, and of course, widgets (lighting fixtures & elements, batteries, toys, tools, etc.). But in software these are just nuclear weapons in an arms race. They don’t foster innovation, they inhibit it. That’s because things change rapidly in this industry. Speed and technological obsolescence are the only protections that matter. Fledgling startups have to worry more about some big player or patent troll pulling out a big gun and bankrupting them with a frivolous lawsuit than they do about someone stealing their ideas.

Wadhwa backs up his claims with a variety of facts and figures, including a report by Pam Samuelson that suggests the biggest winners in the software patent game are the lawyers and non-practicing entities (NPEs). Ideas like Wadwha's aren't all that uncommon but there is always more than one side to any story, or opinion, and there are certainly reasons why protecting software innovations is important to the health of American tech industry and smaller, entrepreneurial ventures that use patents to increase the likelihood that they will attract investment monies.

PC World: Spansion, a company that specializes in flash memory, is launching a campaign to convince the U.S. International Trade Commission (US ITC) that Samsung is infringing on some of its protected technology. Agam Shah offers up some details of this latest foofarah in the world of memory manufacturing by way of his timely piece, Spansion Complaint Seeks to Bar Samsung Memory Imports. Here are the relevant passages:

Spansion filed a complaint with the U.S. International Trade Commission against Samsung for infringing on four patents. The company is seeking a block on the importation to the U.S. of devices such as MP3s, smartphones and tablets that use Samsung's allegedly infringing flash memory.

A Spansion spokesman declined to comment on which products those may be. However, Apple's iPad and iPhone 4 use Samsung flash memory.

Spansion also filed other complaints in the U.S. District Courts in the Eastern District of Virginia and the Northern District of California. In the court cases, Spansion is seeking damages to the extent of profits made by Samsung from the allegedly infringing products.

Samsung has been in other legal hot water of late for similar complaints but doesn't appear to have learned a lesson from the previous claims of patent infringement. Interestingly, Shah notes that Spansion is only recently out of bankruptcy, which could explain why they are feeling a bit frisky these days: frisky enough to take on one of the heavies in the industry in a continuation of their 2008 filing.

CBS Evening News: Inventors are fed up enough with the huge patent application backlog at the US Patent and Trademark Office (USPTO) and some are even taking their products directly to market without any legal protection at all. Joint authors Phil Hirschkorn and Rebecca Jarvis provide the gentle reader with more information on this dangerous, but necessary, practice by inventors who can no longer afford to wait for the government to play catch up. Patent Backlog Frustrates Inventors features one inventor who has already gone through the process of trying to gain protection via official channels but is less enthusiastic about the process after losing the exclusive rights to one of this unique safety devices:

Entrepreneur Aldo DiBelardino started developing lightweight "Spekx" eyewear four years ago in an office above his garage in Virginia Beach, Va. He gave CBS News an exclusive sneak peek at his invention before they went on sale.

"They provide you goggle-like protection, but they provide you the style and convenience of sunglasses," DeBelardino says.

DiBelardino is preparing to start selling them this summer. But the trouble is, he does not have a patent to protect his invention. He applied for one in April.

"Until I get a patent, I have a very limited ability to defend myself in the marketplace against copy activity," he explained.

DiBelardino knows that from personal experience. His first commercial venture -- the X-It Ladder -- a compact fire escape ladder for the home was copied by Kidde, the biggest fire extinguisher maker in the United States. After DeBelardino refused to sell the company his idea, it produced a knockoff that ate into his market share. In 2002, DiBelardino sued Kidde for patent infringement and won a $17 million settlement, the bulk of which went to attorneys fees, and had to give up the exclusive rights to his invention.

DiBelardino has decided to directly sell his product to the public, which is much more risky than gaining IP protection via a patent, but he explains why he is taking this extreme step: "'I'm taking a big risk, but the reality is I have no other choice,' DeBelardino says. 'The way the marketplace works, I can't be sitting on the sidelines as well, because by the time the patent would possibly issue, my opportunity window could close.'"

Bonus IP piece o' the day: Intellectual Property Protection In China at Chinese Language Software.

Facebook Scores Patent Coup In Social Networking Portfolio Purchase

Gigaom: Liz Gannes highlights Facebook's recent acquisition of a portfolio of patents from the seemingly defunct social website, Friendster, in her recent piece Facebook Buys Friendster Patents for $40M. She writes:

The Friendster patents, which date back to the early days of social networking, are incredibly broad. They cover things like making connections on a social network, friend-of-a-friend connections through a social graph, and social media sharing. Friendster had received its first patent back in 2006, when it was already on the decline. At the time, Friendster President Kent Lindstrom told me the company had nearly forgotten it had ever applied for the patents, but added that “We’ll do what we can to protect our intellectual property.” From then on, Friendster frequently mentioned its patents as an asset, but to the best of our knowledge it never actually tried to enforce them.

Facebook could get their 40 million dollars' worth from this significant acquisition of intellectual property (IP) related to their core business. Whether as a defensive or offensive purchase, Facebook's timely move could help them to squeeze other small players out of the growing network of social sites while helping to bolster their increasingly dominant position in the friend-network world.

Business Daily Africa: How exactly does philosopher John Locke related to intellectual property law? A good question, gentle reader. Richard Gitonga helps explain Locke's supportive position on the rule of law when it comes to protecting the creative fruits of one's labor in his topical piece, Protect intellectual property to gain from creativity. Here's what Gitonga offers on Locke along with a little Karl Marx thrown in, just for good measure:

He said people have a natural right to the fruits of their labour.

According to him, labour is an unpleasant activity people engage into not for its own sake but for benefits.

But Karl Marx said property rights exist to protect the interests of the ruling class against their less endowed brethren.

According to people who embrace this school of thought, they do not believe in the capitalistic theory of intellectual rights and believe that once goods are sold, a complete transfer of the property is done to the new owner who has every right to use and distribute the goods how he or she wishes.

This is the argument that is used by proponents of the free software foundation who believe that software should be created and distributed to as many people as possible to benefit a greater collective.

Well, whether we take the John Locke or Karl Marx pathway, our local entrepreneurs involved in software engineering and production should start hunting around for the best IP lawyers in town if they do not have any.

Protection is one of the keys, yes. But in order to have adequate protection, the public needs to understand and be educated about the rights of those people who spend their valuable time, energy and money on the legwork to get a new idea to market. Only then will the consuming public be concerned with whether or not their product is "the real McCoy" or a cheap, counterfeit copy that benefits only the faker with a small payment for an idea they didn't come up with and provides the purchaser with a shoddy and imitative good that might not be worth the reduced price paid.

ArsTechnica.com: In a detente of sorts, the United States, the European Union, and Google have all come to a mutual agreement concerning the selling of specific words that are protected under trademark law to persons other than the holder of the reserved term. And, as one might imagine, there are some concerned that are less than happy about the deal. Jacqui Cheng informs the gentle reader in her August 5th piece, US, EU agree: OK to buy trademarked terms on AdWords.

Advertisers in Europe will soon be able to buy other companies' trademarked terms using Google AdWords. Google announced Wednesday that it was changing its AdWords policy in Europe to align more closely with its policies elsewhere, meaning that a trademark owner won't be able to lay claim over all ads that use the same words.

Additionally, a judge in the US said that selling trademarked words to other companies wasn't likely to create confusion about where to find the real product.

Interesting, yes, and a blow to advocates hoping to protect trademarked words from being bought up by competing sellers who might not be providing the true item to the end user. Check out the remainder of Cheng's piece to find out the contents of US Judge Lee's ruling on the matter.

PatentBaristas: The ever-constant scribe, Stephen Albainy-Jenei, covers the ruling against drug manufacturer Eli Lilly in an ultimate decision by the US District Court in eastern Michigan. From his comprehensive Eli Lilly Loses Method Patent After the Use Was Disclosed in an Earlier Patent, Albainy-Jenei provides some of the pertinent facts and figures from the case for the gentle reader:

Eli Lilly lost an appeal from a final judgment of the U.S. District Court for the Eastern District of Michigan, finding claims 2, 6, and 7 of U.S. Patent No. 5,464,826 invalid for obviousness-type double patenting over its earlier U.S. Patent No. 4,808,614.  See, Sun Pharmaceutical Industries v. Eli Lilly and Co., United States Court of Appeals for the Federal Circuit (2010-1105).

Lilly markets the drug Gemzar® (gemcitabine) for the treatment of various forms of cancer. Both the ’614 patent and the ’826 patent cover gemcitabine and are therefore listed in the Food and Drug Administration’s (FDA’s) Approved Drug Products with Therapeutic Equivalence Evaluations (the Orange Book) with respect to Gemzar®. The ’614 patent claims gemcitabine, as well as a method of using gemcitabine for treating viral infections.

Sun Pharma is going to be popping open the bubbly with their generic success against Eli Lilly's patented formulation for a cancer-fighting treatment. More on the hazards of "double patenting" and why the court ruled that "[i]t would shock one’s sense of justice if an inventor could receive a patent upon a composition of matter, setting out at length in the specification the useful purposes of such composition, . . . and then prevent the public from making any beneficial use of such product by securing patents upon each of the uses to which it may be adapted" in the linked piece above.

Bonus IP piece o' the day: Bloomberg Businessweek's Protect Your Intellectual Property at the Today's Tip column, courtesy of T. Craig Bott, President and CEO of Grow Utah Ventures in Salt Lake City.

And, because it's Friday, how about one more to start the weekend off on the proper footing? Should we consider EPO and foreign rulings? The German position by Jeremy at PatLit.

Microsoft & Salesforce.com Combine IP Portfolios, Let Bygones Be Bygones

PCMag.com:  Chloe Albanesius reports on the recent detente between Microsoft and Salesforce.com in her topically-titled piece, Microsoft, Salesforce Settle Patent Infringement Suit. She writes on the deal worked out between the two software companies over a disputed patent infringement:

Microsoft announced Wednesday that it has settled its patent infringement suit against Salesforce.

Under the terms of the deal, Salesforce.com and Microsoft will have access to each other's patent portfolio. Salesforce will have broad coverage for Microsoft patents covering products and services as well as back-end server infrastructure.

Terms of the deal were not disclosed, but Microsoft said Salesforce was compensating the software giant "based on the strength of Microsoft's … operating systems, cloud services, and customer relationship management software."

So, a royalty payment for past use and an on-going cross-licensing agreement for the patented software in question. Good on ya' Microsoft and nice to see an out-of-court settlement that makes both sides happy.

The Washington Post: FTC Chairman Jon Leibowitz gives remarks concerning the on-going Intel case that bans the computer chip company from a number of practices which got it in trouble with Federal authorities in the first place. Staff writer Jia Lynn Yang informs the gentle reader of Chairman Leibowitz' comments in her related piece, Intel's business practices restricted under antitrust settlement with FTC. She writes:

Capping a decade-long push by the federal government to check the power of this country's biggest tech companies, the Federal Trade Commission is banning Intel from a slew of practices deemed unfair and deceptive as part of an antitrust settlement over charges that the firm exploited its dominance in the chip market to elbow out competitors.

The FTC doesn't have the authority to fine the company -- unless it violates the terms of the settlement -- but the agency outlined a deal Wednesday restricting Intel's business practices in ways that go further than past cases in which the firm has been accused of not playing fair with rivals. Officials said the deal would benefit consumers buying computers by increasing competition in the chipmaking business.

"This is an exceptionally important case," FTC Chairman Jon Leibowitz said. "And the commission was deeply troubled by Intel's actions."

The public still has 30 days to comment on the proposed settlement before the FTC enacts it. Check out the rest of the story via the link above, including the terms of the agreement.

Wired.com: A former Defense Intelligence Agency analyst and software developer is releasing "a simple, useful software tool" for CIA analysts in an open source format after fighting for a number of years over the intellectual property rights. Noah Shachtman reports on Matthew Burton's brave move in his recent article, CIA Software Developer Goes Open Source, Instead:

Burton, a former Defense Intelligence Agency analyst and software developer, speaks today at the Military Open Source Software Working Group in Virginia. It’s a gathering of 80 or so national security tech-types who’ve heard a thousand stories about good ideas and good code getting sunk, because of squabbles over who owns the software.

Burton, for example, spent years on what should’ve been a straightforward project. Some CIA analysts work with a tool, “Analysis of Competing Hypotheses,” to tease out what evidence supports (or, mostly, disproves) their theories. But the Java-based software is single-user — so there’s no ability to share theories, or add in dissenting views. Burton, working on behalf of a Washington-area consulting firm with deep ties to the CIA, helped build on spec a collaborative version of ACH. He tried it out, using the JonBenet Ramsey murder case as a test. Burton tested 51 clues — the lack of a scream, evidence of bed-wetting — against five possible culprits. “I went in, totally convinced it all pointed to the mom,” Burton says. “Turns out, that wasn’t right at all.”

Burton tried to navigate the complex rights attached to the ACH software, but in the end decided to just open source his code to get it into the hands of the people who need it most. Good or bad, Burton is a software rainmaker and might be setting a precedent for future programs that need to interoperate with top secret software: the type that is nigh impenetrable from a licensing agreement point-of-view.

Asia Times: Keya Acharya's timely post covers concerns by one of the world's most lucrative drug markets in light of a number of recent agreements that could negatively impact the citizens most in need of medical assistance. Trade pact worrying India's drugmakers exposes the trouble in all its disturbing glory:

Their ongoing negotiations remain shrouded in secrecy, but there are already reports that India and the European Union (EU) will have a free-trade agreement ready by the end of August, and that they will be putting signatures to it before the end of 2010.

Yet it is a potential development that is causing more nervous chatter than joyous jitters in India, where drug manufacturers in particular have raised concerns over India's trade interests and intellectual property rights (IPR) issues.

India's US$7.5 billion drug industry is among the world's top five bulk medicine producers. It is also among the world's 20 top pharmaceutical exporters, with its export business growing at 17.8% per year.

There have been previous discussions of trying to reach some kind of mutually-agreeable arrangement that would allow Third-world and developing nations to have special access to production of generic medicines that would encourage them to play fairly with protected formulations while at the same time providing life-saving medications to millions of needy patients. If you have any thoughts or comments to add, please do so, as we're always open to interesting conversations that spring up around controversial topics.

Bonus IP piece o' the day: Amazon, the Latter-Day Robber Baron by Diane Francis, Editor at Large of the National Post via The Huffington Post.

Atari Returns To Life Thanks To Valuable Intellectual Property

LA Times: One of the original video game companies is back in business after traveling a somewhat sad and tortuous path through almost 3 decades of acquisitions and sell-offs. Ben Fritz covers Atari's return to life in his topical piece, Atari reboot is underway, and notes that intellectual property had a lot to do with the company's revitalization. He writes:

"It was like an old onion that smells really bad and every time you peel away one problem, you find another," said Chief Executive Jeff Lappin, a game industry veteran known for turning around troubled companies.

Together with President Jim Wilson, Lappin is looking to largely bypass the shrinking multibillion-dollar business of selling video games at retail stores and instead to leap into the fast-growing but still small digital side of the business. In the next few months, Atari will roll out a major online initiative with updated versions of old favorites such as Missile Command and Centipede that can be downloaded or played on social networks like Facebook.

It's also building out a licensing program that includes not just consumer products, but also movies based on its classic games. Two are already in development at different studios.

"I look at us as basically a start-up, but one with a brand everybody in the world knows and a great library of intellectual property," Lappin said.

There you have it: IP to the rescue, yet again! And you'll be able to enjoy a variety of old faves from Atari on a number of new platforms, including Facebook and other social websites.

The Metropolitan Corporate Counsel: The good folks at TMCC interview Jeanne Hamburg , a Member of the firm and Chair of the IP Internet Law Group at Norris, McLaughlin & Marcus, P.A. about her practice in the field of intellectual property law. Here's a select question and answer set from the piece that should get the gentle reader started:

Editor: Please tell us more about cybersquatting.

Hamburg: Cybersquatting is the bad faith use of a trademark in a domain name. A cybersquatter uses someone else's trademark to attract attention to the infringing domain name, to the detriment of the trademark owner. For example, the cybersquatter may be trying to direct traffic away from the trademark owner's website to its own. For instance, let's say I'm a manufacturer of blue jeans, and I purchase the domain name www.levisbluejeans.com. Clearly, I am seeking to capitalize on the goodwill of the Levi's brand in order to encourage sales of my own blue jeans (which are not Levi's brand jeans).

Cybersquatting can usually be dealt with most effectively in a uniform domain name recovery proceeding, or UDRP. A UDRP is an arbitration that generally takes no more than two or three months from commencement to decision, and it is instituted in any one of the number of arbitral forums that were approved for the resolution of such disputes by the Internet Corporation for Assigned Names and Numbers, or ICANN. Such forums include the National Arbitration Forum, or NAF, in the United States and the World Intellectual Property Organization, or WIPO, in Switzerland. A UDRP is cheaper and faster than a federal court case, which can be brought under a law called the Anticybersquatting Consumer Protection Act, or the ACPA.

However, if there are other acts of trademark infringement, sometimes the client will opt for a federal court case, which gives the client the opportunity to both collect damages for trademark infringement and to receive immediate injunctive relief. One of the limitations of a UDRP is that there is nothing preventing a persistent cybersquatter from registering another variation on the trademark owner's mark and doing the same things all over again. Under the ACPA, a federal court can issue an injunction stating that the cybersquatter may not use any variations of the trademark owner's mark on the web in domain names.

By contrast, the arbitral panel in a UDRP case is limited to ordering transfer of the particular domain name in issue to the trademark owner. As a practical matter, however, a UDRP can be an effective deterrent. And, importantly, a federal court case is obviously going to be a lot more expensive and time consuming than a UDRP.

Hamburg's answer might seem a big long-winded to some, but a complete and informative answer is just what this blog aims to serve up. Read the remaining questions and answers in Your Domain: Trademark And Copyright Issues In The Online Marketplace, which can also be downloaded for reading off-line or on other devices in *.pdf format.

TopSpeed: If you haven't heard the latest news on the Ford/Volvo/Geely deal, here it is courtesy of Alexander in his recent article, The deal is complete: Geely gets Volvo, Ford gets $1.8B:

After what seemed like an eternity of paperwork and projections, the deal between Ford and Geely for Volvo is finally complete. Originally, the purchase price for Volvo was $2B, but it seems that the sale was completed at $1.8B. Back in March, Geely paid Ford with a note of $200M and some cash. Today, Geely paid off the remaining $1.3B to gain ownership of the Swedish builder, but the final purchase price including closing adjustments will not be revealed until later this year.

As part of the agreement, Ford will continue to supply Volvo with powertrains, stampings, and other vehicle components for differing periods. They have also reached an agreement in terms of intellectual property; both brands will deliver their business plans and establish the proper use of each other’s intellectual property.

Not only does Ford get some much-needed dollar capital, they also get residuals in the form of an on-going deal to produce some of the parts for Geely's versions of the Volvo marque line-up. And some said a Chinese company would never own a prime, world-wide car brand!

Deccan Chronicle: And for a somewhat touching story about the difficulties faced by women hoping to invent and protect their resulting IP, check out Boys pip girls in patent projects.

One such inventor and BE graduate, Ms G. Muthulakshmi, said she and her friends had sincerely worked on a project and invented a currency identifier for visually challenged persons but failed to get the patent.

“Though we completed our project successfully, we did not get the patent. Soon after we finished college, one friend got married. Two of us got held up with our jobs. We were unable to catch up and were forced to abandon the project,” said Ms Muthulakshmi. Apart from engineering college students, anyone can approach the four-year-old CIPR department at the Anna Varsity for help in registering their innovations and getting patents.

Sad to say, indeed. Women need more opportunities, in the form of focused programs, if possible, to help them capitalize on their special skill sets that allow them to perform admirably as entrepreneurs and innovators. The Centre for Intellectual Property Rights (CIPR) in Chennai, India, is doing its part to help: are we doing the same here in the United States?

Bonus piece o' the day: More Students Misunderstand The Fundamentals Of Plagiarism by at The Huffington Post.

Jailbreaking & How the DMCA Works

There's been a lot of buzz about the triennial review of DMCA provisions, specifically the one that said owners of smartphones (basically iPhones) may now circumvent or “jailbreak” the access controls to the firmware in order to add and run interoperable third-party applications.

While this looks to be a huge shift in policy, it's really not. Rather, it is a determination of the application of the Copyright Act to an issue presented by new technology. Here's what it comes down to--In their review, the Copyright Office found the following:

1. iPhone firmware is copyrighted work protected by access controls, and
2. Getting around those access controls--or “jailbreaking”--in order to add interoperable applications that aren’t authorized by the iTunes app store is a fair use.

Copying the firmware would still be against the law, and even the jailbreaking will likely void your iPhone warranty. But it's good news for innovators because jailbreaking is easy enough that even non-techies can do it, and it should spur innovation in the apps marketplace.

Why did this happen? Because it's how the DMCA is set up. This rule-making procedure is required by the DMCA to happen every three years. Every three years users of copyrights can submit their request for an exemption to the DMCA prohibition on hacking access controls so that they can make non-infringing uses of copyrighted works. They have to prove that the access controls are substantially harming their ability to make those non-infringing uses. he exemptions granted expire each cycle and users must continue to ask for exemptions each year- that is why almost all of the exemptions granted this cycle are simply repeats from previous rule-makings. This exemption will be in effect for three years.

US Copyright Group Appear To Have Copied Website Verbatim

ArsTechnica.com: The people behind a large number of "John Doe" lawsuits have apparently "borrowed" heavily from a similar group's website and are being called out on it by none other than Nate Anderson, who reports on the matter in his topical post, Anti-P2P lawyers accused of copyright hypocrisy. He writes:

Have the copyright enforcers been caught with their hands in the cookie jar? The blog TorrentFreak today published its claim that the US Copyright Group, which has filed more than 14,000 lawsuits against anonymous P2P movie sharers, ripped off another copyright settlement group in crafting its own settlement website.

The site was tipped off by a reader, who claimed that US Copyright Group had jacked code and visual elements from Copyright Settlements, which is in a similar business: sue P2P users, then send them letters demanding a settlement to avoid trial.

The sweet smell of hypocrisy!

Anderson and like-minded intellectual property enthusiasts must be reveling in the irony of a group of lawyers whose most dearest wish is to sue others for copyright infringement have been caught copying directly from a competing lawsuit mill. Read more of Anderson's piece for additional details of this potentially serious legal faux pas.

Telegraph.co.uk: Famous British vacuum cleaner manufacturer, Dyson, deserves the kind of intellectual property protection that accompanies a valid, innovative effort to produce new and original products. According to Damian Reece, Dyson sued the maker of a copycat vacuum cleaner, but lost the case, which isn't the kind of IP enforcement in question, but rather, the opposite of honest dealings that are the hallmark of British justice. From Reece's Britain must get serious about protecting its intellectual property:

You might think it's a trick question and that both are. In fact the one on the left is a Dyson, the one on the right a Chinese product called the Mach Zen. Dyson has sued the maker, Vax, for design infringement (and you can see why) but yesterday lost its case. It's expected to appeal this most ridiculous of High Court decisions and good luck to it.

Design is crucial to our future as a high-end manufacturing exporter but if companies can't protect their designs (which are just as important as patents) we're done for. A design doesn't just mean a pretty technical drawing. It represents huge amounts of time and investment, research and development, to get something to the manufacturing stage.

Helping recoup the costs associated with inventing a novel product are part of what IP protection is all about, and if the legal system can't help make it evidently clear to entrepreneurs that they will be able to get back some of the energy/money they put into researching and developing such items, they might decide to find a more favorable venue in which to pursue their business. Like say, America!

Securing Innovation: The informatively-titled Google Patents Indexing, Retrieval of Blogs highlights the world's leading search/online advertising company's bid to search blogs by using a patent to defend its proprietary methods. Here's the scoop on what the company presents as a background for their new patent application:

The World Wide Web (“web”) contains a vast amount of information. Locating a desired portion of the information, however, can be challenging. This problem is compounded because the amount of information on the web and the number of new users inexperienced at web searching are growing rapidly.

Search engines attempt to return hyperlinks to web pages in which a user is interested. Generally, search engines base their determination of the user's interest on search terms (called a search query) entered by the user. The goal of the search engine is to provide links to high quality, relevant results (e.g., web pages) to the user based on the search query. Typically, the search engine accomplishes this by matching the terms in the search query to a corpus of pre-stored web pages. Web pages that contain the user's search terms are identified as search results and are returned to the user as links.

Over the past few years, a new medium, called a blog, has appeared on the web. Blogs (short for web logs) are publications of personal thoughts that are typically updated frequently with new journal entries, called posts. The content and quality of blogs and their posts can vary greatly depending on the purpose of the authors of the blogs. As blogging becomes more popular, the ability to provide quality blog search results becomes more important.

Indeed Google wants to lock up the ability of others to search blogs, and with the recent Bilski ruling coming down apparently in favor of software and business method patents, they just might be setting themselves up for a very lucrative IP licensing side business.

NAMAC: A group of university students have taken on the task of defending a film company against claims that their work violates the spirit of "fair use" clauses meant to allow snippets of media to be used in new, transformative works. Gilien Silsby at the University of Southern California Law News Service reveals to the faithful reader the story behind a real-life victory for students learning how to apply their classroom knowledge to the world outside academia in her related piece, the lengthily-titled USC Intellectual Property & Technology Law Clinic Wins Copyright Law Exemption on Behalf of Filmmaker. She reports:

Alongside a team of USC Law students from the USC Intellectual Property and Technology Clinic, NAMAC has helped secure an exemption that will allow documentary filmmakers to use material contained on DVDs and other sources that were previously off limits.

The exemption to the Digital Millennium Copyright Act (DMCA) was announced today by the United States Copyright Office. The Digital Millennium Copyright Act of 1998 makes it a crime to break the digital locks on DVDs and other media. The restriction prevented filmmakers from making fair use of material, or using public domain material.

Together with Beverly Hills entertainment attorney Michael C. Donaldson, the students represented Kartemquin Films of Chicago, IL, the International Documentary Association, and a national coalition of documentary filmmakers and filmmaker organizations.

“This is a huge win for documentarians,” said Prof. Jack Lerner, director of the Clinic. “Instead of using DVDs, filmmakers were forced to use costly, time-consuming, and technically inadequate workarounds, like taking the footage they sought for their films from VHS tapes. It became increasingly clear that these were not viable alternatives, as such material is either unavailable, too degraded, or technically unsuitable for documentary filmmaking.”

Fair use is absolutely necessary to the creation of new works, as each additional instance of a movie, or song, builds on the roots established by those creators before them and without adequate protections for those who use small pieces of others' works in their own original creation, creativity and artistic growth would grind to a halt. Be sure to read Silsby's entire piece to hear feedback from the students involved in this winning effort.

The Blog of Legal Times: The US Patent and Trademark Office (USPTO) got its 2010 funding from Congress, but as the process for determining the amount to be budgeted for the important intellectual property organization is flawed, the award might fall far short of what is needed to reduce patent application pendency and help hire additional examiners to backfill a serious hole left by disgruntled ex-USPTOers. Maria Coyle has more:

The legislation, which now goes to the president, stems from the rather unusual budget system for the PTO and the annual problems that system creates. The office is fully financed by user fees. Every year it estimates the amount of fees it will collect, and the House Appropriations Committee subsequently appropriates an amount equal to the estimate.

“It's imperfect because their predictions are obviously imperfect,” Rep. Alan Mollohan (D-W.Va.) told his colleagues on the House floor on Wednesday. “They are talking about revenues that they may or may not receive into the future.”

But it now appears that the agency will collect more fees this year than it had estimated—roughly $129 million more. Under the current budget authority, the PTO would be unable to touch that extra money. And so Congress had to step in.

3 cheers for a bit of fiscal sanity! With the windfall amount to be used by the USPTO to do just what is stated in the opening paragraph of this BLT entry. About time Congress modified the USPTO's budget methodology to make sure monies collected from patent-related fees aren't siphoned off for other uses but are applied where they are needed most.

Bonus IP piece o' the day: Rambus investors gleeful over big legal victory by Therese Poletti at MarketWatch.com.

Michigan Denies Tax Break To Video Gamer Producer Over Question Of IP Control

Freep.com: Intellectual property ownership is at the center of a tax credit dispute by a video game developer who moved to Michigan to take advantage of its favorable climate for game makers. Katherine Yung reports on the CEO of Scientifically Proven, Nathaniel McClure, and his battle to get what he's got coming in her topical piece, Game maker Scientifically Proven sues Michigan. She writes:

McClure, CEO of the video game developer Epicenter Studios in Sherman Oaks, Calif., moved his family to Farmington Hills last year because of Michigan's generous tax incentives for video game development. He now employs 15 people at a new company, Scientifically Proven Entertainment, which is creating a "Man vs. Wild" video game based on the Discovery Channel show. The Farmington Hills-based company has also been providing internships for would-be game designers at Michigan State University.

The state's tax credits for video games debuted in April 2008 but no one has yet received approval to claim them, according to Ken Droz, a spokesman for the Film Office. McClure is among the first to apply.

McClure said state officials have refused to meet with him, leaving him with few options but to file a lawsuit July 15 in Oakland County Circuit Court. Both the Film Office and the Treasury Department declined to comment.

A representative for the State of Michigan says that McClure simply doesn't qualify for the tax because he doesn't own the intellectual property related to the Discovery Channel show.

In a June 8 letter to McClure, Janet Lockwood, who was Michigan's film commissioner at the time, said state officials denied a tax credit to McClure's company because it does not own or control all of the intellectual-property rights involved in producing the "Man vs. Wild" video game. "An applicant with less than overall control over the project is not an 'eligible production company' eligible for the credit," Lockwood wrote.

She said that the video game's publisher, Crave Entertainment, may apply for the tax credit because it appears that the company does own or control the intellectual property rights.

Find out why McClure thinks he's got a good case due to the wording of the related clause in Michigan's ta law by reading the rest of Yung's piece via the link above.

AFP: US Trade Representative (USTR) Ron Kirk recently reiterated the Obama Administration's push to bring Chinese IP protection and enforcement into alignment with US policies and desires. From US to press China on controversial technology policy come more details of this on-going effort to squeeze China into taking US interests to heart, especially those of protecting American innovations and products/services based on a protected status. Also of interest is a China-biased government procurement policy that is seriously crimping foreign (read: US) business interests in the world's most populous nation:

The United States said Wednesday it would continue to press China on its drive to develop homegrown technology that threatened global intellectual property protection and market competition.

Despite assurances from Beijing, President Barack Obama's top trade official said Washington would raise the issue at upcoming bilateral trade meetings.

"We did address it and we were pleased that we got them to at least agree to be more transparent but we do not have final resolution of that," US Trade Representative Ron Kirk told reporters.

"That is going to be one of the top items that we continue to engage China on," he said, commenting on criticism by the top US business lobby on Chinese industrial policies promoting indigenous innovation.

Look for the USTR and the US Chamber of Commerce to increase the pressure on China as the number of pirated American products continues to increase, despite promises by Beijing to the contrary.

PatLit: Jeremy Phillips' timely piece, Interest on damages for infringement not a correctable error, explains how a small "slip" created a serious headache for the litigants in a UK patent trial. Here's the introductory paragraph to get started on:

Yesterday's decision of Mr Justice Floyd (Patents Court, England and Wales) in the latest round of Leo Pharma A/S and another v Sandoz Ltd [2010] EWHC 1911 (Pat) (see earlier post here) picks up following the trial of an action in which Leo Pharma's patent infringement claim against Sandoz was upheld. A draft order before the court included a provision that 'The Defendant shall pay to the Claimants any sums found due on the taking of said inquiry into damages or account of profits together with interest at the judgment rate (being 8%) from the date of this Order".

Read on to find out the rest of the story, and also check out Jeremy's previous post on the court case in question: Unfortunate, but curable.

Harvard Business Review: Why China Might Never Protect IP by Chris Meyer & Julia Kirby highlights the difficulties facing those optimists who see China as just a hop, skip and a jump away from a realistic and robust IP enforcement regime. Mid-way through the piece, the authors present a case study on what things portend for IP rights in China:

The world's drug companies have a trove of accumulated research. The successful research is disclosed as part of the licensing process. The research leading to dead ends, however, sits alongside the Ark of the Covenant in the warehouse from Indiana Jones and The Raiders of the Lost Ark. In your Godlike view, which would be better for the economy, keeping it there or disclosing it to the world of researchers? Certainly there would be cases in which one scientist's ceiling would become another's floor, and a recombination of knowledge would accelerate progress — once again at no marginal cost. And if you add non-economic considerations like, say, the benefits of accelerated drug discovery, there's a huge welfare gain to the world's population. In a society truly based on information economics, the non-disclosure of drug research might properly be prosecuted as stealing.

Well, then. Should hard-won knowledge be "free" for the taking by under-developed, or developing nations? And if that's the supposition of nations like China, will they be willing to crack down on IP theft in the future once they get rolling on ascendancy to 1st World nation status?

CongressDaily - Tech Daily Dose: Microsoft Vice President and Deputy General Counsel Dave Heiner speaks out on the Google-Yahoo! search deal in Japan with some very real sentiments against the antitrust-worthy arrangement. Juliana Gruenwald features Heiner's remarks in her July 27th piece, Microsoft Blasts Yahoo Japan-Google Deal. To whit:

In a blog post, Microsoft Vice President and Deputy General Counsel Dave Heiner argued that the deal will "eliminate search competition in Japan--in paid advertising and natural search results." He noted that Google accounts for about 51 percent of paid search advertising in Japan, while Yahoo Japan accounts for 47 percent, with their natural search results "almost as high. ... If Google is permitted to proceed with its plan, it would gain nearly complete control over search and search advertising in Japan through contract, not organic growth."

Heiner said this deal is bigger than the 2008 deal Google and Yahoo, which owns part of Yahoo Japan, abandoned after the Justice Department said it would file an antitrust lawsuit to block it. While he notes that Google has said the latest deal already has been approved by Japanese authorities, Heiner said, "It will be interesting to see over the next few weeks if that is really accurate."

Here's to hoping some common sense comes to the rescue, Japanese-style!

Bonus IP piece o' the day: Study About IP On The Human Genome Shows That Patents Hindered Innovation by Mike Masnick at TechDirt.com.

i4i Gains Additional Legal Support For XML Patent In Microsoft Ruling

PC Magazine: Microsoft's on-going patent battle with Canadian firm i4i over the inclusion of an XML editor in Microsoft's Word application has reached yet another dead end. Chloe Albanesius reports on the matter in her topical piece entitled In Blow to Microsoft, Validity of i4i Patent Upheld. She writes on Microsoft's bid to defend itself against what it views as improperly interpreted patent law:

"We continue to believe there are important matters of patent law that still need to be properly addressed, and we are considering our options for going forward," Kevin Kutz, director of public affairs for Microsoft, said in a statement.

The case dates back to 2007, when i4i sued Microsoft for infringing on its XML editor patent. In August 2009, a District Court in Texas handed down a $290 million judgment against the software giant and ordered Microsoft to remove Word from the market within 60 days.

Microsoft appealed, but lost in December. At that point, Microsoft said it would remove the infringing XML editor from all copies of Word by January 11, but still filed a second appeal on Jan. 8. In March, the court issued a preliminary ruling that said the original judgment should stand, and in April, it rejected Microsoft's request for an en banc review.

Microsoft could still appeal to the Supreme Court, a viable but slim possibility.

To the Supreme Court, then! Check out the rest of Albanesius' piece for the details of i4i's side of the story and look for a motion from Microsoft to continue to fight the good fight in the weeks or months to come.

Intellectual Property Watch: The mandated 3 year review of the Digital Millennium Copyright Act (DMCA) by the US Patent and Trademark Office (USPTO) has been performed and the results of the deliberation confirm the rights of consumers to use gadgets and snippets of video footage in certain situations. Leslee Friedman informs the gentle reader what these confirmations mean for the general public in her related piece, Review Of US Digital Millennium Copyright Act Brings New Exemptions. Here's a choice passage, or two:

The United States Copyright Office this week completed its statutorily required review of the landmark Digital Millennium Copyright Act (DMCA). Included in the ruling were three major exemptions: a renewal on the exemption for cell-phone unlocking, a new exemption for the jailbreaking of smart phones technology, and the use of visual media clips for transformative, non-commercial works [vidding]. The ruling has resulted in a flood of optimism from a range of open-access advocates.

These exemptions will have to undergo new scrutiny in order to be renewed through the same process in three years, but for the moment, the vidding exemption opens up new ground for professionals working on presentations, artists, and educators to grapple with visual media while being certain they are covered by Fair Use Doctrine, according to sources.

The ruling has excited groups and individuals in favor of a more "open access" environment, including the Electronic Freedom Foundation (EFF) and the Organization for Transformative Works (OTW). The implications of "jailbreaking" apply somewhat heavily to products made by Apple so time will tell if the USPTO decision on the DMCA will negatively impact Apple's bottom line or not.

The Huffington Post: Author, professional speaker, and founder of InnovationCoach.com Robert F. Brands' timely article, Redefining Innovation's True Reward: Amassing Intellectual Property and Value Creation takes a supportive stance on the ability of intellectual property protections to invigorate and increase entrepreneurial efforts. He writes:

...Intellectual Property will drive the future. As we move past the Industrial Age and the Age of Technology, the future era will focus on process that drives IP -- and the real value it delivers. It is imperative to build and protect IP through the use of patents. Patents protect and define the innovation so they are the key step to commercialization and enhancing value.

It is essential for every company to keep a patented Intellectual Property portfolio. The IP portfolio of Airspray doubled in value because of the patented technology that turned liquid hand soap into foam. Airspray realized -- and its fiscal results proved -- that the regular and persistent renewing, refreshing and updating of patents was well worth the cost.

Hear, hear! If IP can help the biggies like Coca-Cola, which Brands holds up as a shining beacon of the profitability that a strong and innovative company can achieve when they put IP ahead of all else, then it certainly can boost small businesses' bottom lines, too. Find out about Coke's successful renewal under a strong, IP-centric leader in the early 80s by reading Brands' entire piece at the link above.

IPWatchdog.com: Ever since the US Supreme Court ruled on Bilski, the IP community has been agog and many sectors that will be directly impacted by the decision have been scrambling to make policy decisions to comply with the long-awaited instruction. Gene Quinn's Patent Office Releases Interim Bilski Guidelines provides insightful guidance from the USPTO on what the examiners will be using to stay within the new interpretation of business method and software patents. To whit:

The Patent Office explains that it is their understanding of the Supreme Court decision in Bilski that the Court intended to “underscored that the text of Sec. 101 is expansive… [and] business methods are not “categorically outside of Sec. 101’s scope…”

The Notice also reminds examiners are reminded that Sec. 101 is not the sole tool for determining patentability where a claim encompasses an abstract idea, and specifically states that “Section 101 is merely a coarse filter and thus a determination of eligibility under Sec. 101 is only a threshold question for patentability.” This should hardly be considered new, or refreshing, but the way that the Patent Office and many patent examiners have interpreted business methods and computer implemented methods over the last few years suggests that this change in examiner guidance could be monumental. It really ought to not be monumental because this guidance merely directs the patent examiners accurately on the law, and patent eligibility under Section 101 has always been merely a threshold question. Patent examiners and the Patent Office for years have not treated it that way, largely ignoring basic principles of patent law. This guidance should put an end to that and there is real reason for optimism.

At least UPSTO Chief Kappos and crew are getting their ducks in a row, but are all the other affected parties so ready to address the new rules of the software/business method patent game?

The Hill: In a separate, and somewhat related piece, USPTO Chief Kappos comments on the collection of fiscal year 2010 fees and highlights the need for the Congress to help his organization get adequate funds to address on-going pendency problems and high examiner turnover. Here's a snippet from the press release, Ensure USPTO has access to all of its fee collections:

Without urgent congressional action to amend its current year appropriations, USPTO cannot invest its fee collections this year to make a dent in the backlog, hire new examiners, pay for overtime and make critical investments in IT infrastructure. Without help from the Congress, American companies, universities, and independent inventors hoping for patent approval to commercialize their new technologies and create new private sector jobs will have to wait unnecessarily for their patents to be granted.

Thankfully, a simple, and completely budget-neutral solution has been proposed by the administration that would allow USPTO access to all of its collections this year. But it requires fast Congressional action to maximize its effectiveness. I urge Congress to act swiftly on the administration’s request and help accelerate the pace of our economic recovery, for the sake of local businesses and entrepreneurs in each and every district of our country.

True, 'dat! Without funding, the USPTO can not hope to keep up with current incoming patent applications, yet alone eliminate the millions of already-filed applications stacked to what must be sky-high levels awaiting the overworked examiner corps to take action.

Bonus IP piece o' the day: Nvidia Loses to Rambus in Latest Patent Suit by Michelle Maisto at eWeek.com.