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.

House Small Business Committee Touts Trade Agreements’ Favorable Affects For American Small Businesses

TradingMarkets.com: The House Small Business Committee today announced a the findings of a report on how trade agreements affect American small businesses and the general tenor of the news is upbeat. Here's a snippet from the related press release, Small Business Owners Report U.S. Trade Agreements Help Protect Intellectual Property:

Ranking Member Sam Graves (R-MO) said, "Protecting intellectual property is critical to our economy, jobs, and consumers. A violation of intellectual property laws directly affects a company's brand, market share, bottom line, ability to export, and creates a number of safety concerns for consumers. It's very easy to see the trickle-down effect this has on an economy. It is important that the United States maintains an aggressive strategy to protecting these highly valued assets."

Witnesses from industries such as music, technology and manufacturing discussed the important role that intellectual property has played in growing their business. Witnesses also explained how their businesses have been adversely affected by counterfeiting and piracy.

The Honorable Mr. Graves wouldn't lead the gentle reader astray, no sir. Check out what industry witnesses had to say about Mr. Graves' supportive words on the US' continued enforcement of intellectual property laws at home, and abroad, via the linked piece above.

CNN Politics: The White House's new IP enforcement plan is starting off in an old, familiar direction: eastwards. Towards China, that is. Mackenzie Green is on the spot with a topical piece entitled China will be focus of new U.S. anti-piracy initiative that clarifies IP Czar Espinel's careful targeting of a long-time IP infringement offender. From Green's piece:

Washington plans a "comprehensive review" of its support of U.S. business efforts to prevent intellectual property theft overseas, Intellectual Property Enforcement Coordinator Victoria Espinel told the House Committee on Foreign Affairs at a hearing.

Espinel singled out China, saying that "due to the scale and scope of manufacturing, its industrial policies and its potential as an export market, it's fair to say that China raises a particularly troubling set of issues."

"Therefore, China will be a significant focus of our enforcement efforts as we address intellectual property infringement abroad," she said in her opening statements to the committee.

"Whether it's coordinating our law enforcement personnel overseas, developing a strategy to go after foreign-based websites, or using trade policy tools to address the competitive disadvantages that we face, China will be a priority," Espinel elaborated.

As our largest import provider, China stands squarely in the gunsights of US IP enforcement troubles and with piracy levels approaching 100 percent for certain electronic and software products, the nation needs to get some serious help reforming its weak IP protection laws.

AFP: And the US is not the only major power concerned with China's laissez faire attitude towards protecting the innovation of entrepreneurs: the European Union (EU) has had about all it can stomach and notes apprehension by EU businesses who are "increasingly worried about doing business in China, citing intellectual property protection as a major concern." From Shanghai we learn what European Union Trade Commissioner Karel De Gucht recently said regarding China/EU trade relations:

"European companies are increasingly worried," De Gucht told reporters at a trade event at the European Union pavilion at Shanghai's World Expo.

"Most of it has to do with the protection of intellectual property because the core of our economy is of course intellectual property," he said.

The indigenous innovation policy forces European companies to register as Chinese companies to participate in the public procurement market and to bring their intellectual property "into the open", De Gucht said.

The EU is in talks with Beijing to improve conditions for European businesses, but De Gucht also said the bloc was working on measures to demand reciprocity in procurement markets

Chinese companies currently enjoy a very comfortable path towards winning government procurement contracts, as the law singles out domestic solutions as more desirable than those coming from overseas, regardless of which solution best fits the situation. Read the remaining portions of EU trade chief says China business concern rising and learn more about why De Gucht & Co. are bucking for a level playing field in China.

PopEater: Robert Burck, better known as the Naked Cowboy of Times Square, New York, is suing the woman billing herself as the "Naked Cowgirl" for infringing on his trademark image and goodwill. Zach Dionne reports on what the hullabaloo is all about in the insightful Naked Cowboy's Manager: 'Naked Cowgirl Is Basically a Criminal'. He writes:

The Naked Cowboy of Times Square (alias Robert Burck) recently filed a lawsuit against lewd imitator Naked Cowgirl in Manhattan federal court. The Cowboy's case rests on the fact that Sandra Brodsky has infringed his copyright and damaged his brand since 2008, Burck's manager, Todd Rubenstein, tells PopEater.

Rubenstein says Brodsky, who also goes by the name Sandy Kane, assumes Naked Cowgirl doesn't fall under the registered trademark of the Naked Cowboy, and "she is sadly mistaken."

"It's infringement; she's basically stealing intellectual property. She's gonna lose," Rubenstein tells us of the lawsuit. "And then she'll probably continue doing what she's doing, she'll be found in contempt of federal court, and she'll be incarcerated. That's the sad part about it."

Rubenstein says Burck's image as the Naked Cowboy is one of international renown and deserves the respect given to other Times Square attractions like "the Empire State Building" or "the Statue of Liberty." Get the details on a Naked Cowboy/Cowgirl duet record deal gone bad and other related gossip on the Naked Cowgirl's "lewd" behavior by clicking through to the real deal.

Bonus IP piece o' the day: BioPatent Design Conference 2010: Munich, Germany by Stephen Albainy-Jenei at PatentBaristas.com.

Interview with Entrepreneur in Residence Ray Millien re: the Bilski Decision

Here's a quick interview that we did with our Entrepreneur in Residence Raymond Millien--one of the world's top IP strategists--about how the Supreme Court's recent decision on software patents will effect innovators.

It's less than ten minutes, so give it a whirl and post any questions in the comments.

Developing Nations Fight For Access To Patent-protected Medicines

AllAfrica.com: Isolda Agazzi reports on the difficulties poor countries face when trying to source drugs at reasonable prices due to the constraints of intellectual property protections in her topical piece, Intellectual Property Rights Remain A Barrier to Drugs. She writes on the current status of reduced-cost medicines for a variety of developing nations:

Middle and low-income countries were given a 10-year extension to adopt IP laws on pharmaceuticals. India, for example, the largest producer of generics for developing countries, adopted such a law in 2005.

LDCs were given a 20-year deadline that will expire in 2016 -- even though the WTO is currently undergoing an LDCs needs assessment process, focused on the priorities of individual countries.

"Some African countries are developing their production capacity but we are concerned about the 2016 TRIPS deadline -- not only for production but also for import -- because of the threat of prices rising," added Childs.

The WHO essential medicines list now contains 423 drugs, among which only 20 are still patented, most being second line ARVs. "This is the biggest public health challenge. And the third line ARV will be even more costly," stated Dr Hans Hogerzeil, WHO Director of essential medicines and pharmaceutical policies.

For nations seeking additional access to IP-protected medicines there *are* a number of possible routes, but looming overhead is the 2016 deadline that might put the hurt on newer efforts to provide these much-needed drugs to millions of people who would otherwise not be able to afford them.

Boston.com: Jonathan Saltzman's US says scientist gave data to China reveals a possible case of mistaken intention, or maybe a real live instance of industrial espionage, depending on who's doing the investigating. Here's some of the pertinent bits that tell the tale of one Kexue Huang, of late an employee of the Dow Chemical Co. and currently a scientific researcher for biofuel company Qteros.

Huang, 45, who worked for Dow in Indiana for five years until he was fired in early 2008, was arrested on July 13 in Massachusetts, where he now lives, on 12 counts of economic espionage to benefit a foreign government or instrumentality, Assistant US Attorney Scott L. Garland said at Huang’s bail hearing yesterday in US District Court in Worcester. Huang was also charged with five counts of interstate or foreign transportation of stolen property.

And this particular case is only one of a handful of like examples of "individuals ever charged with economic espionage to benefit a foreign government or instrumentality" and indicates that the government, and Dow, are taking the matter very seriously. Find out more on Huang's precarious position and why the defense believes he should be able to be set free on bail by reading Saltzman's complete piece at the link above.

The Vancouver Sun: Facebook is defending itself against claims of patent infringement brought by Leader Technologies of Columbus, Ohio. Tom Hals, of the Reuters news service, has more information on Leader's disputed patent covering the "dynamic association of electronically stored information with iterative work flow changes." From Facebook, small firm square off over patent claims:

Facebook Inc. on Monday began its defense against claims that the most basic functions of its hugely popular website infringe a patent held by a little-known company.

An attorney for the patent's holder, Leader Technologies of Columbus, Ohio, said in opening arguments in federal court in Delaware that internal Facebook documents and testimony by executives of the social networking website would show "overwhelming evidence of Facebook infringement."

The lawyer representing Facebook in the matter had this to say about Leader Technologies founder Michael McKibben claims: "'He didn't invent the Internet. He didn't invent web browsing,' said Michael Rhodes, an attorney with Cooley LP, which represents Facebook. 'He didn't invent a lot of things.'" True, true. But just in case, shouldn't you be coming up with some legal quips that don't sound like playground banter? I mean, really.

AppleInsider: A group called Americans For Patent Fairness recently sued a number of tech companies, including Apple, Sprint and Verizon, with a suit "assert[ing] that the companies have falsely marked products with expired patents, or patents that do not cover the marked products, 'with the intent to deceive the public about the patent coverage for their products.'" Neil Hughes has the rest of the story in his topical and related post, Apple accused of false patent marking in new lawsuit. Here's what Hughes writes:

Apple products targeted in the suit are the iPhone, iPod touch, fifth- and sixth-generation iPod classic, the third- and fourth-generation iPod nano. It noted that the fifth-generation iPod was marked with manuals, user guides or product information guides with references to U.S. Patent Nos. 4,577,216, 4,631,603, 4,819,098, and 4,907,093. The remaining products included references to U.S. Patent Nos. 4,577,216, 4,631,603, 4,819,098, and 4,907,093.

The suit notes that the '216, '603, '098 and '093 patents each expired prior to Apple making the respective products available for sale. Starting on March 6, 2007, the company began referencing those patents in documentation with its products, after the patents had expired.

"Despite the fact that all of the '216, '603, '098 and '093 patents expired prior to the first sale in the United States of any Apple Product, Apple knowingly and intentionally marked the user manuals, user guides, or product information guides (or the equivalent) for these products at various times with the patent numbers of these patents," the suit reads. "Apple knows that the '216, '603, '098 and '093 patents do not and never covered any of the Apple Products."

It might comes as a surprise to the AFPF that a recent finding in a circuit court decided that qui tam lawsuits are no longer going to be the cash cows that some had hoped they would be, and that even if the case makes to to court, the effort (and cash) spent might not be worth the bounty recovered.

GreenTech: Toyota has settled one of its many on-going patent-related lawsuits for an undisclosed amount. Lora Kolodny reports on this legal defeat by one of the world's leading hybrid car manufacturers:

The technology disputed had to do with supplying torque from both an electric motor and an internal combustion engine to a car’s wheels, according to earlier reports by Bloomberg BusinessWeek and confirmed by a Paice spokesperson today.

Paice had gone as far as asking the U.S. International Trade Comission to force Toyota to halt export of its hybrid vehicles to the U.S., where its Prius is the top-selling hybrid.

Now, Toyota will pay Paice under a licensing agreement (for which terms have not been disclosed) for patented technology which is included in the following current models and others: Prius 3, the hybrid Camry, RX-450 and the HS-250h.

Kolodny notes that Paice is a company that doesn't actually make any products, but rather uses patents and related intellectual property (IP) to sue its way to profitability. But as non-practicing entities (NPE) go, Paice is just doing what all companies do: try to make moola. Read Toyota Settles Longstanding Patent Dispute Over Hybrid Vehicle Tech for the win.

Bonus IP piece o' the day: Man says Bill Gates' company stabbed him in the back by Alex Silverman at MYNorthwest.com.

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.

US Copyright Group Scores Small Victory In Court Hearing

ArsTechnica.com: The P2P file-sharing lawsuit filed by Dunlap, Grubb, & Weaver, aka the "US Copyright Group," was awarded a small victory in court but had to also make a concession with the judge ordering the creation of a new notification letter to be sent to the growing pool of "John Doe" defendants. Nate Anderson reports on this give-and-take proceeding in his related post, Judge "rejected all of the EFF's arguments" on P2P cases. He writes:

Judge Collyer was "very thoughtful about the issue" said EFF attorney Corynne McSherry when I spoke to her yesterday after the hearing. Collyer considered the concerns of everyone involved and eventually decided on a "creative solution," in McSherry's words: ISP subscribers will soon receive an additional notification letter agreed to by all parties. The letter will better explain their rights and the grounds on which they or their lawyers can object to the subpoena.

While Collyer's order won't put an end to the subpoenas in process, it will call a halt to subscriber notifications in two of the main cases until all parties can agree on the notice text. Tom Dunlap tells Ars, "Until the court has approved the notice, in the two cases before Judge Collyer, the ISPs will not send notices to their subscribers." (The other cases are being heard before different judges in the same court.)

A Pyrrhic win, in some ways, but one that shows a willingness of the court to mix things up a bit in light of the wide-ranging geographic locations of the John Doe defendants and the difficulties involved with proving whether or not a given individual has indeed downloaded one of the movie files in question from a P2P filesharing network.

The 271 Patent Blog: Senator Patrick Leahy is pulling out some of the stops in his efforts to get patent reform passed before the Congressional summer recess starts. Peter Zura provides some coverage of Leahy's particular efforts in his topical article, Leahy Post-Bilski Comments and Patent Reform. Here's a relevant passage that quotes Leahy on the subject of how the patent reform bill can undo what the SCOTUS Bilski decision didn't do:

In Bilski v. Kappos, the Court unanimously affirmed the judgment of the Federal Circuit that the application for a patent on a business method should be rejected.  The Court’s opinion, joined by only five of the Justices, however, needlessly left the door open for business method patents to issue in the future, and I am concerned that it will lead to more unnecessary litigation.

Since the debate over comprehensive patent reform began many years ago, the Supreme Court has demonstrated an increased interest in patent law cases.  The Court’s decisions have moved in the direction of improving patent quality.  While today’s decision will take time to analyze and may not have advanced the law and created the stability and certainty that it could have, it appears to continue this trend, which is consistent with the goal of patent reform legislation pending in Congress.  The courts, however, are constrained by the text of our outdated statutes, and it is time for Congress to act.”

Zura also provides a bit of coverage on the "manager's amendment" that Leahy says will be passed quickly. The Senator goes on to assure the reader that the patent bill would be passed "in just three days" if it could only get floor time and a vote.

National Journal - Tech Daily Dose: The US Trade Representative (USTR) has weighed in on the on-going ACTA negotiations. Juliana Gruenwald's related piece, USTR Provides Update On ACTA Talks, has more details for the gentle reader. She quotes from a statement released by the USTR onThursday:

"While ACTA aims at establishing effective enforcement standards for existing intellectual property rights, it is not intended to include new intellectual property rights or to enlarge or diminish existing intellectual property rights," the statement said.

USTR also said ACTA would be consistent with the World Trade Organization's Trade Related Aspects of Intellectual Property Rights agreement and also would not allow border officials to search traveler's baggage or personal electronic devices for infringing materials.

Scott Flynn, who asked a number of questions of the ACTA negotiators in their most recent meeting while they debated the act's contents, offered some of his thoughts on the matter. Again, Gruenwald provides clarification:

"There seemed to be little desire to remove or narrow considerably the Internet chapter. There was a desire by some delegates to ensure that DMCA-like protections are in the ACTA Internet chapter," [Flynn said.]

According to the USTR, the next round of talks will be held in the United States at a time not yet announced to the general public.

Bonus ACTA piece o' the day: ACTA slouches on, will be final within 6 months by Nate Anderson at ArsTechnica.com.

PatentBaristas.com: The USPTO has published a document in reaction to the recent US Supreme Court ruling on the Bilski patent case that provides guidance to patent examiners until a formal set of rules can be incorporated into the application process. Stephen Albainy-Jenei covers the news release in his related piece entitled USPTO Sends Interim Guidance Memo To Examiners Regarding Bilski Decision. He reports:

Examiners should continue to examine patent applications for compliance with section 101 using the existing guidance concerning the machine-or-transformation test as a tool for determining whether the claimed invention is a process under section 101. If a claimed method meets the machine-or-transformation test, the method is likely patent-eligible under section 101 unless there is a clear indication that the method is directed to an abstract idea. If a claimed method does not meet the machine-or-transformation test, the examiner should reject the claim under section 101 unless there is a clear indication that the method is not directed to an abstract idea. If a claim is rejected under section 101 on the basis that it is drawn to an abstract idea, the applicant then has the opportunity to explain why the claimed method is not drawn to an abstract idea.

The directive also notes that the patent must "be novel, non-obvious, and fully and particularly described" along with meeting the new guidelines under the current post-Bilski interpretations. The USPTO will continue to examine the SCOTUS' Bilski ruling and modify future guidance accordingly.

Policy Innovations: From Australia comes a lengthy interview featuring the opinions of Prof. Matthew Rimmer, a Senior Lecturer at the Australian National University's College of Law, an Associate Director of the Australian Center for Intellectual Property in Agriculture, and a member of the Climate Change Institute at the ANU, on intellectual property and clean tech. From the aptly-titled Clean Tech Intellectual Property we gather some answers from Professor Rimmer:

We hear all the time that technological development is our best hope for transforming the oil economy and mitigating climate change. President Obama just did this in his Oval Office speech about the oil spill. He said that, "scientists and researchers are discovering clean energy technologies that will someday lead to entire new industries." The problem is that "the energy industry only spends a fraction of what the high-tech industry does on research and development."

Intellectual property issues lurk in the background of these public policy questions about energy research and development. If someone develops a fantastic new solar panel, the best choice for the environment would be to give it away as cheaply as possible so that the maximum number of people could get it. But giving a technology away undermines the incentives that private companies have to develop new technologies. If I can't profit, why would I invest in expensive research and development? Here, standard intellectual property rights are in tension with some public goods.

The discussion that follows this introductory segment of the interview roams far and wide across the subject of what exactly constitutes IP and how it plays out in policies and meetings related to the issue of climate change. Also of concern is how best to address global warming while keeping some semblance of IP enforcement for content owners without squashing the hopes of those third-world countries who need inexpensive solutions to their pollution problems. Read all of the interview for Rimmer's ideas on how he thinks a mutually-beneficial arrangement can be agreed upon by all parties.

ArsTechnica - Open Ended: Google's efforts to release the VP8 video codec into the wilds of the Internet unfettered by IP protections or related royalties seems to be gathering steam. Ryan Paul investigates the current status of the VP8 codec as implemented by ffmpeg in his topical piece, FFmpeg gets its own implementation of Google's VP8 codec. Here's more on open source video codecing as envisioned by Developers Ronald Bultje & Co.:

Building on top of FFmpeg will allow them to take advantage of a substantial body of existing code. FFmpeg already supports previous iterations of the codec, such as VP5 and VP6, which share some common characteristics with VP8. According to Bultje, some of the optimizations developed for FFmpeg's H.264 and VP5/6 code can be shared seamlessly with the new VP8 implementation. This approach will lead to a smaller footprint than if the developers were to simply graft Google's code into FFmpeg.

Bultje also believes that he and other developers can produce an FFmpeg-based VP8 decoder that will substantially outperform Google's code. In his blog entry, he points out that this wouldn't be unprecedented because FFmpeg's Theora and Vorbis decoders are widely regarded as superior to the standard reference implementation that is produced by Ogg-backer Xiph.

"It is highly likely that our native VP8 decoder will (once properly optimized) also perform better than Google's libvpx," he wrote. "The pattern here is that since each libXYZ has to reinvent its own wheel, they'll always fall short of reaching the top. FFmpeg comes closer simply because our existing wheels are like what you'd want on your next sports car."

But the developers admit that the strong similarities between Google's VP8 implementation and that of H.264, currently the reigning video codec, might lead to patent disputes in the not-so-distant future. Stay tuned for more developments as they happen...

TechDirt.com: So, you ask, how exactly did the makers of the now mostly irrelevant Encyclopaedia Britannica become the holders of a GPS-related patent? A good question and here's an answer provided by none other than Mike Masnick in his timely post, It Appears That The Encyclopaedia Britannica Entry On Shaking Down GPS Providers With A Bogus Patent Needs Updating. He writes:

Through a series of events, Britannica ended up in possession of a rather infamous patent (5,241,671), originally granted to Compton's back in 1993. That patent was initially used to claim control over... well... pretty much all multimedia, including CD-ROMs and certain aspects of computers and software. The story got so much attention that the USPTO's boss stepped up and directly ordered a re-exam of the patent. All of the claims were struck down, but Compton's (and soon Britannica who took over ownership of the patent, being an investor in Comptons) kept trying. After eight long years of fighting back and forth, the patent with narrower claims was granted, which Britannica decided covered GPS technology.

And with their GPS patent firmly in hand, EB decided to sue a number of other businesses for infringing on their IP crown jewel but, as luck would have it, the patent and related appeals have been "dumped," leaving the company to further molder as its contemplates how it went from one of the premier providers of information in the modern world to a small-print footnote.

National Journal - Tech Daily Dose: Juliana Gruenwald covers the efforts by an organization in charge of the fight against illegal online pharmacies to clamp down on their proliferation by limiting their use domain registrations. From Gruenwald's ICANN Urged To Crack Down On Registrars we gather more bits on LegitScript's John Horton's attack on fake online pharmacy domains:

Horton...called on the Internet Corporation for Assigned Names and Numbers, which manages the Internet's domain name system, to crack down on registrars that violate their accreditation agreements with ICANN, which bars domain names from being used for illegal activities. Citing a recent report from an Internet security research company called KnujOn.com, Horton, who contributed to the report, noted that some registrars have become safe havens for rogue online pharmacies. "Without their [registrars] sponsorship of the illicit transaction structure, the problem would not exist," the report said.

ICANN has not yet responded to Horton's accusations of complicity but you can be sure they will come out with a statement clarifying their position in the fight against illegal, unsanctioned online pharmacies in the coming weeks.

Bonus IP piece o' the day: Bilski Ruling: The Patent Wars Untouched by Steve Lohr at The New York Times BITS column.

Salesforce.com Countersuit Targets Microsoft

PCWorld: Microsoft's recent lawsuit against Salesforce.com for patent infringement has been met with a similar motion in reponse. Chris Kanaracus of IDG News, provides more details on Salesforce.com's recent riposte in his topical article, Salesforce.com Sues Microsoft for Patent Infringement. Kanaracus writes:

Salesforce.com has sued Microsoft for patent infringement, making a move in response to an intellectual property suit Redmond filed against the on-demand CRM (customer relationship management) vendor last month.

A number of Microsoft products, including its .NET platform and SharePoint collaboration software, are in violation of Salesforce.com patents, according to the complaint filed Thursday in U.S. District Court for the District of Delaware.

Microsoft has willfully infringed on Salesforce.com's intellectual property, the complaint adds.

In addition to the lawsuit, Salesforce.com CEO Marc Benioff called the company an "alley thug" and "patent troll" during the course of a routine business call, which is a bit harsh. Your move, Microsoft!

Telegraph.co.uk: China has long been seen as the primary flouter of international intellectual property laws, but recent changes to the country's IP enforcement regimen have made it more attactive to outside concerns, who are filing protective paperwork in large numbers. Andrew Cave reports on the sea change for China's IP prospects in his related piece, Intellectual property in China. Here's a takeaway passage:

...[A]s China continues to develop its economy rapidly, intellectual property experts say the nation is also starting to clean up its act on this issue.

“We think that China is becoming the new Japan in relation to intellectual property issues,” says Morag Macdonald, partner at leading intellectual property law firm Bird & Bird.

“These are still early days in terms of China turning around its position, but it is now possible to enforce intellectual property rights in China.

Among those Western companies that have successfully prosecuted IP cases in China, Cave points out that "3M, Kenwood, BASF Agriculture and electronics group Philips, have all pursued and won patent infringement cases in China, while Starbucks and Yamaha have won trademark cases." Encouraging news for businesses hoping to enter China's burgeoning consumer marketplace without fear of losing their profits to IP theft and piracy.

The Washington Times: The release of the White House's first-ever intellectual property enforcement plan has garnered plenty of media attention and a wide range of opinions from people who stand to lose or gain should the suggested changes in the document be implemented. One subject area expert, Marshall Phelps, a former corporate vice president for intellectual-property policy and licensing at IBM and Microsoft, offers his opinion on the importance of a stricter, and more robust, national IP enforcement strategy:

As the pace of innovation accelerates and the world economy becomes more competitive than ever before, the value of intellectual property becomes an even more critical part of a nation's economy. If America is to continue leading the world in innovation, it's imperative that the federal government make intellectual property protection and enforcement a top priority. The first-ever national intellectual-property enforcement strategy, to be presented soon to Congress, is a significant first step, and Congress should give it thoughtful consideration. Anyone who's concerned about maintaining an environment of innovation and creating high-paying jobs for the future should pay close heed.

Congress has lots of business on the table at the moment, but IP Czar Espinel's comprehensive IP plan should definitely get its day in the spotlight if America hopes to continue being the recognized champion of innovation and ideas. Be sure to read the rest of Phelps' thoughts on the value of IP rights to the United States' economy in PHELPS: Slamming the door on idea thieves.

Patent Baristas.com: Ever vigilant of their intellectual property rights, the lawyers at FIFA brought additional attention to a small problem by having a group of orange dress-wearing soccer fans arrested at a World Cup soccer match for violating South African intellectual property laws. Stephen Albainy-Jenei reports on this "tempest in a tea kettle" event that would better have been left unprosecuted in his timely post, Orange Miniskirt Debacle Less Filling.

FIFA officials took issue with a (very) small “Bavaria” tag on the side of the dresses, which they said infringed the rights of official partners and sponsors who paid millions of dollars to advertise exclusively at World Cup venues.  The dresses had been available free with a pack of beer at gas stations in Holland.  This raises the question:  How visible must the mark be in order to violate the Act?

Obviously the mark can be very small, in the case of the Orange Miniskirt kerfluffle, but, interestingly enough, a group of other Dutch fans, dressed in orange airline pilot and stewardess uniform, went unmolested, so FIFA must not have been entirely against fan solidarity, just the idea that some might try to interrupt their contractual agreement with the chosen beer provider for the World Cup, Budweiser. The rest of Albainy-Jenei's post contain read-worthy passages on South Africa's anti-"ambush marketing" laws and other similarly tasty tidbits.

Guardian.co.uk: Nobel prizewinning scientist John Sulston spoke at an event in London, England celebrating the 10th anniversary of the human genome's decoding and came out strongly against any efforts to lock up human genetic code under IP protection. Alok Jha reports:

...[B]iologist John Sulston said scientists and lawmakers must resist attempts by corporations and individuals to patent human genes.

In the US, for example, it costs a woman between $3,000 and $4,000 to be tested for familial breast cancer because a corporation owns the patent for the two genes involved. "The fact of the matter is that many human genes have patent rights on them and this is going to get in the way of treatment unless you have a lot of money," said Sulston. "And it's going to get in the way of research."

Sulston said he was particularly concerned about the intentions of scientists such as Craig Venter, who made headlines earlier this month when he unveiled work described in the media as "the world's first artificial life form".

Sulston is concerned that any intellectual property rights given to companies who sort out various portions of the human genetic code will end up hurting research and medical breakthroughs. These discoveries should be used to benefit greater humanity and would otherwise increase human suffering due to restricted access to genetic therapies and medicines that would not be affordable with IP protections. Read Jha's Human Genome Project leader warns against attempts to patent genes for more on open source genetics and related IP policies.

Bonus IP piece o' the day: Google triumphant, beats back billion dollar Viacom lawsuit by Matthew Lasar at ArsTechnica.com.

White House Releases IP Czar’s Enforcement Strategy

The White House: Victoria Espinel, the U.S. Intellectual Property Enforcement Coordinator, released her recommendations today for a comprehensive plan to protect American intellectual property. The 61 page document (*.pdf link) entitled The 2010 Joint Strategic Plan on Intellectual Property Enforcement outlines a multi-faceted blueprint that focuses on ways to address the growing problem of IP theft both at home and abroad. Here is the takeaway paragraph that nicely sums up Espinel's vision:

The American economy is driven by the innovation and creativity of its people.  We need to protect the ideas and artistry that has made us so successful.  We need to make sure we protect our citizens from the risks to public health and safety posed by criminal activity and by dangerous counterfeits.  This strategy is the coordinated effort of your government to protect consumers and our economy from these real threats.  I am confident that this strategy will be a significant step in that direction.  I encourage you to read the strategy we submitted to Congress today.  If you do, I hope that you will agree that we are headed along the right path.

Espinel's plan highlights what each IP-related government agency will have as its responsibilities and also points out steps taken so far to move towards a more rigorous, and capable set of laws. Espinel's proposal will allow the United States to leverage its innovative spirit which will in turn help bring increased prosperity and employment to a country struggling to recover from the recent financial downturn.

PatentBaristas.com: Ever increasing prices for drugs are forcing health insurance companies to continually raise their rates regardless of the health or payment histories of their policy holders. And one of the primary sources of rising pharmaceutical costs is the ability of drug manufacturers to set prices for their products at very high levels due to the strength of copyright protections. Guest Barista Kathy Wilson explains the situation in more detail via her topical post, Medical Patents – Are They Necessary Evils? She writes:

It’s a conundrum that the experts seem unwilling to answer; and even as blame is laid at the feet of the patents that protect the drugs and how drug companies exploit every loophole in the book to prolong their patent period, nothing concrete is being done by the government to fund new research and development initiatives in the field of medicine. Until such a day comes, patents are going to be valid, drug costs are going to soar until they run out, and the cost of healthcare is going to keep climbing with no respite in sight.

A rather bleak outlook, yes, but one based firmly on the reality of the situation. Why not try some kind of public/private joint venture that would create a more reasonably-priced alternative to the already tax payer-funded drugs that consumers have no choice but to buy?

ArsTechnica.com - Law & Disorder: A pro-IP legal team working with Big Media defended their recent filing of a huge "John Doe" lawsuit against peer-to-peer (P2P) filesharers in the District of Columbia by claiming their mass filing gives "all Doe Defendants the ability to defend the case in one jurisdiction, e.g. the ability to combine or join other Doe Defendants’ filings and the ability to receive uniform decisions by the Court." Nate Anderson's P2P lawyers tell judge: suing 5,000 "Does" at once is fine provides more information on the Virginia lawyers' rejoinder:

The US Copyright Group, a business name for the group of Virginia lawyers filing suits against tens of thousands of alleged US peer-to-peer movie downloaders, has been sharply criticized by the EFF and ACLU for suing up to 5,000 anonymous defendants at once. The suits were "improperly joined," said the groups. At least one of the federal judges overseeing these cases wanted to hear more, telling lawyers from Dunlap, Grubb, & Weaver to convince her that all of the anonymous defendants had participated in the same transaction.

Lawyer Tom Dunlap took up the cause and did his best to make a cogent argument in favor of filing 1 suit against the 5000 or so co-defendants, a number of whom have never even heard of the movie they are claimed to have stolen, which in this instance is Uwe Boll's, Far Cry. What remains to be seen is if the judge will agree with Dunlap and his group, which seems unlikely given her previously-voiced skepticism.

Microsoft News Center: In the half decade that it has existed, Microsoft's venture capital program, IP Ventures, has shown great prospects as a means to encourage technology companies in areas of interest to the Redmond, Washington software giant. Here's a takeaway passage from Five Years In, IP Ventures Program Continues to Fuel the Imagination of Entrepreneurs highlighting the program's upcoming role in a Harvard Business School case study:

On June 22, following months of research and numerous interviews with experts at Microsoft and several other companies, Harvard Business School professor Josh Lerner and writer Ann Leamon published a case study on Microsoft’s IP Ventures program. The case study focuses on the factors that led to the program’s inception, and includes perspectives from CEOs of successful companies who have launched their businesses through IP Ventures. Lerner and his team also provide their analysis and open the door to discussion on whether the program could be replicated in other venues. 
“We think it’s an interesting model and believe that students, as well corporations that invest heavily in research, could benefit from looking into what Microsoft has done,” he says.

You can read the study here. Also be sure to read the rest of Microsoft's press release on the 5th anniversary of IP Ventures for more complete details of the program's numerous accomplishments via the link above.

Bonus IP piece o' the day: Experts Draft Document Critical Of ACTA: Signatures Wanted by Mike Masnick at TechDirt.com.

A Panoply Of Intellectual Property Picks

PatentBaristas.com: Stephen Albainy-Jenei continues with his tradition of reviewing an intellectual property-related book each week with his latest effort, Book Review Monday: Patents for Chemicals, Pharmaceuticals, and Biotechnology as written by Guest Barista Scott Conley. Here's his takeaway summary of authors Philip Grubb and Peter R. Thomsen's comprehensive work:

Overall Grubb and Thomsen cover a huge number of topics, some in more detail than other. At times the book seemed to assume too much knowledge of patent law. Despite this, there are two extremely valuable and unique parts of the book. First is the explanation of patent laws in several countries and how they differ. The second is patent law as it relates to chemical, pharmaceutical, and biotechnological inventions. The authors have provided not just theoretical information but practical information that can be used by practitioners and inventors alike.

The book mostly focuses on Europe and America, which reflects the locations of the authors and should be a ready addition to your growing IP library. You can buy the book here.

eHow.com: If you're looking for a step-by-step guide to copyrighting a name, look no further than Pam Gaulin's topical post, How to Legally Copyright a Name. Once you follow the first few steps you'll come to the most important information:

File an online application with the Trademark Electronic Application System. The system will check your application. Use a valid email address, as that is where the serial number will be sent. Keep your serial number in a safe place, both on your computer and on paper. Pay $325 for the application with a credit card or debit card, at the end of the online application. This amount rises to $375 when filed by paper.

Gaulin's solid advice to file for your copyright electronically can free up some much-needed cash to put towards another business use such as ordering business stationary or building a flashy sign outside your place of business to attract customers. Be sure to read Gaulin's whole piece for some other tips on securing a copyright.

Out-Law.com: Europeans are debating the legality of charging a levy on such items as blank CDs as a method of compensating content creators for the use of such media for less than savory purposes. From the law firm Pinsent Masons comes the timely Private copying levy must be linked to copyright use, says top court advisor.

Many European countries allow citizens to make private copies of copyrighted works but charge a levy on blank CDs, digital media players and DVDs and use the money generated to compensate copyright holders for the unlicensed use of their work.

An Advocate General of the Court of Justice of the European Union (CJEU) has said, though, that this levy should not be charged unless it can reasonably be presumed that that material will be used for private copying.

Interestingly, Advocate General Verica Trstenjak's statement on the meaning of reasonable presumption leaves a bit to be desired:

Trstenjak said...that the burden of proof that a link existed should not be too severe. "The requirements in relation to that link should not be raised so high that ultimately the actual use of the relevant devices for the purposes of private copying would have to be required. Rather, even potential use would have to be regarded as sufficient," she said.

AG Trsetjak is for the fair application of levies in general, which has not always been the case. Find out more on European levies on blank media via the link above.

Milord & Associates LP: A popular clothing company is taking the competition to the cleaners over their use of a too-close-for-comfort name. Milord A. Keshishian reports on this intellectual wrinkle in Forever 21 Sues Forever 26 For Trademark Infringement and 15 USC § 1125 Unfair Competition. Here is the scoop on Forever 21's actions to protect its name:

In December of 2009, Plaintiff asserts that it demanded that Defendant immediately stop using Plaintiffs’ trademarks on clothing and to remove the Forever 26 sign from its retail outlet. Defendant allegedly agreed to do so, but Plaintiff claims that it recently obtained evidence of Defendant’s continued use of Plaintiff’s marks. Thus, the instant lawsuit was filed for trademark infringement, unfair competition under the Lanham Act § 43(a) (15 U.S.C. §1125(a)), and dilution.

The move by Forever 21 to fight for its IP rights comes as quite a surprise, seeing as the company "has been sued for copyright infringement so many times, we've lost count," according to fashion industry guru, Stylist.com.

Ravens Hollow Business Community: Sometimes a company needs to take a closer look at where its future profits lie and on some occasions, those sources might not be a clear cut as one might imagine. Jackie Hutter, a "leading IP strategist" and Principal of the eponymous Hutter Group, offers some thoughts on building an IP plan in her recent article, Entrepreneurs – 2 Simple Questions Will Determine Whether IP Strategy is Critical to Your Business. She writes:

Put simply, an entrepreneur needs more than a yes or no decision centering on whether she should obtain one or more patents to protect her idea. Rather, prior to launching her new business venture, an entrepreneur must develop and execute on a business strategy focused on determining whether she needs to pursue IP protection in order to meet her goals.

Hutter points out the example of identity theft protection company LifeLock's use of brand identity to put just one facet of their profit plan to work around various intellectual property assets. Maybe Hutter wrote this piece before the president of the company had his identity stolen multiple times after publicly offering up his Social Security number as proof of the company's guarantee?

Bonus IP piece o' the day: File-sharing has weakened copyright—and helped society by Nate Anderson at ArsTechnica.com.