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.

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.

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.

Chinese Counterfeiters Get Justice, New York-Style

Business Review USA: Two New Yorkers have been found guilty of running a seriously huge luxury goods counterfeiting operation and will likely be spending some time in the big house after paying some large fines for their crime. Laura Clapper reports on this blow for intellectual property justice in Two locked up in counterfeit handbag scheme. She writes:

Two members of one of the largest counterfeit luxury goods groups were convicted this week for their involvement in an international manufacturing import and wholesale counterfeit business. New Yorkers Chong Lam and Siu Yung Chan were found guilty of conspiracy to traffic counterfeit goods, trafficking counterfeit designer handbags, wallets, and other bag and illegally smuggling counterfeit goods.

The goods were imported from China between 2002 and 2005. According to evidence, the guilty parties controlled operations in 13 companies in the U.S. and abroad and 8 factories that produced the counterfeit goods. U.S. Customs and Border Protection confiscated container upon container of counterfeit goods imported from China. The duo had imports 300,000 knock-off goods from China, including Burberry, Louis Vuitton, Coach, Fendi and Coach, under the guise of their 13 companies.

China's assertion that it is doing mighty work to combat the production of counterfeit goods on home soil rings a little hollow now after Lam and Chan's lengthy and lucrative fake goods racket. Read all of Clapper's piece for the rest of the story of how the Department of Justice and their minions scored a major coup against Chinese fraudsters.

Bloomberg BusinessWeek.com: The most famous bastion of the Arts & Crafts movement is suing the owners of a new tea company for infringement of its name and goodwill. Victoria Slind-Flor provides more information of this incidence of trademark infringement in her recent post entitled, TiVo, Canwest, Under Armour: Intellectual Property (Update1).

The foundation objects to Michael and Marilyn Caputo’s attempt to open a business in East Aurora to be named “Roycroft Tea Co.,” and to register “Roycroft Tea Co. From Farm to Family” with the U.S. Patent and Trademark office.

The Caputos were sent a cease-and-desist letter April 15, demanding they halt any use of the Roycroft mark.

Their counsel, Anne F. Downey of Downey & Downey of Boston, New York, responded April 16, writing that “there are serious questions” about the scope of the foundation’s exclusive rights to the mark. “I think that if you some day push the issue all the way to a judicial decision, you may be very disappointed with the results,” she wrote.

The defendants say they expected a lawsuit but are going to open their Arts & Crafts-themed tea rooms despitepending legal action by The Margaret L. Wendt Foundation. Ms. Downey suggests the two companies come to some kind of mutually-beneficial arrangement that would allow the Caputos to use of the Roycroft name while possibly bringing in some extra funds for the foundation. Barring such a detente, the Caputos will have their work cut out for themselves defending the use of a trademarked name for their nascent tea business.

The Salt Lake Tribune: Senator Orrin Hatch, R-Utah, voices his thoughts on the value of US intellectual property and its protections with a little help from Microsoft CEO Steve Ballmer in their jointly-authored piece, Extended R&D tax credit means new jobs. Here's the takeaway for the gentle reader in a hurry:

When foreign businesses use U.S. innovations without paying for them, they cheat U.S. workers and businesses twice -- once when they steal the innovation itself, and a second time when they export to the United States and unfairly compete against law-abiding U.S. businesses. The failure to protect intellectual property gives foreign goods an unfair price advantage and effectively acts as an illegal subsidy that deprives U.S. workers of job opportunities.

We need to place opening global markets and respect for intellectual property at the top of our economic agenda. The Obama administration recently announced that it wants to double U.S. exports and open foreign markets to U.S. goods and services over the next five years. That's the right goal; the administration now needs a plan for getting us there. Congress can also play a role by passing the pending trade agreements with Korea, Colombia and Panama.

Fair play for American businesses abroad means everyone wins, including nations with developing economies. Enforcing laws already on the books will go a long way towards making American goods and services profitable for their makers and attractive for their consumers. Here's one of the closing quotes that nicely sums up Hatch's and Ballmer's sentiments: "...protecting intellectual property is like erecting a huge "Welcome" sign to innovators and creators -- the best possible approach for any country seeking to participate fully in the global knowledge economy."

ArsTechnica - Law & Disorder: ACTA is drawing the wrong kind of attention from nations most needing increased intellectual property enforcement regimens and a recent article by none other than Nate Anderson reveals India as one of the growing number of countries speaking out against the stringent contents of a devisive international law in the making. Among the complaints is the proposed right to seize suspect products in transit without the destination country being able to make its own judgment of the legality of the goods in question.

One key area of concern is ACTA's permission for customs agents to seize goods "in transit" between countries, even if those goods are legal in both the sending and receiving countries. "Let me give an example," said the Indian rep. "India's right to exercise flexibilities, such as granting compulsory licenses, would be interfered with by the mandatory application of border measures to goods in transit. Indian exporters could be constrained from shipping goods produced under its own exception to countries where there is no applicable IPRs protection because transit may be blocked by an intervening transit country’s application of domestic IPRs."

Because India's home-grown IPR laws allow for a greater interpretation of what is, and isn't, legal with regards to the importation of generic medicines, the provisions of ACTA would have real effects for millions of poor Indian citizens who would otherwise enjoy longer and healthier lives if medicines that don't meet the ACTA standards are allowed to be delivered to their intended recipients. Check out Anderson's India launches offensive against ACTA, cites "due process" for more complete details of India's anti-ACTA stance.

Milwaukee Wisconsin Journal-Sentinal Online: In his topical piece, Patent office stalls state growth, Carlos de la Huerga outlines the ways in which the huge patent backlog is not only costing America dearly as a country but is also affecting people on a more local level, too. de la Huerga uses the massive success of a British vacuum manufacturer by way of comparison to the lackluster innovations happening in America's heartland communities.

...Dyson Ltd is more than just interesting ideas, great patents or colorful products. It is well-run, and its growth is due to everyone being committed to supporting its innovations, managing their development and being ever impatient with its own progress.

If you need a further measure of their success, consider that six weeks ago, Dyson announced it was hiring 350 engineers, to double its engineering staff to 700. I'm certain with the new products and designs of these engineers, the company also intends to double its total employment to 5,000.

Unfortunately those 350 engineering jobs aren't in Milwaukee or Wisconsin. I'm not aware of any companies hiring so many talented people in Milwaukee at the moment. Many companies are still letting great talent go or are in a state of suspended animation. With the right support, innovation and business management, we (or even Ripon) could have our own Dysons.

de la Huerga rightly points to patent pendency as one of the factors leading to the loss of many jobs in the Milwaukee area and other similarly-situated cities across the United States with some $15 billion a year lost to unpatented innovations. Something to think about when considering the greater costs of the US Patent and Trademark Office's languishing pile of patent applications awaiting examination...

Bonus IP piece o' the day: SCO/Novell suit is over, SCO loses at CrunchGear.comby John Biggs.

Digital Freeloaders Threaten Music/Movie Industry

The Atlantic.com: A recent article entitled The Freeloaders by Megan McArdle looks at the troubling decline of the music industry in the face of digital music files and the free/illegal downloads that are driving profits down and piracy up. McArdle writes:

We have yet to figure out how to make IP work in the new era. Even if we don’t, people will still make pictures, sing songs, and write stories—just not as frequently, or as lavishly. But even if we do, file-sharing will probably alter the form of the works we do create. The popular arts may come to look more like the rest of the Internet: many labors of love produced quickly and cheaply in spare moments, and a few high-end productions that can be monetized.

Forms are already changing. The movie industry is moving into 3-D, which is harder to reproduce at home. Studios are also relying more on blockbuster movies that maximize the theater experience—and the revenues they earn from toys and comic books.

When the printing press was invented, many monks mourned the decline of vellum and the loss of the illuminator’s art. They were right, of course—but they were even more wrong. Maybe something better is coming, even as the transition racks the nerves of writers and artists. As the old joke goes, we may be losing something on every unit—but perhaps we’ll make it up in volume.

And is it considered innovative if an industry lobbies for laws that protect the status quo instead of spending those same dollars on something new and desirable, as was the case of the record, the CD, and satellite radio, all of which were predicted to bring the end of the music industry? The music and movie industries need to keep re-inventing themselves and create new and innovative products/services that keep their content-hungry audiences coming back for more, with money in hand. Resting on one's laurels might work in the short-term, but over time even the brightest of crowns begins to tarnish, slowly at first, and eventually a new king is crowned with a fresh shiny wreath, leaving the complacent has-beens to wonder what happened.

The Record.com: A Canadian researcher has come to the conclusion that intellectual property does not help creatives nor those who hope to market the work produced by artists. Research file: Intellectual property laws don’t serve creators, WLU researcher says provides more details of Professor Darren Wershler's study, by way of an amusing comparison:

Wershler explains the concept using an analogy from the television show South Park. “It’s like the episode with the underpants gnomes,” he said.

In the episode, a group of gnomes went around the town of South Park stealing people’s underwear. When someone asked the gnomes what their business plans were, they said, “Step one: collect underpants. Step two: (long pause). Step three: profit!”

Wershler says digital publishing has an underpants-gnome business model — no one knows how to go from creating digital literature to delivering it to the reading public in a sustainable manner.

Instead, he argues, it is time to move away from the government’s “polite fiction” of literature as an industry to conceiving it as a public good that requires government funding.

“If we make policy and copyright regimes airtight, creativity and cultural production stagnates and dies. We have to allow for mistakes and oversights,” Wershler says.

The suggestion that the government needs to pay artists to produce their work is not a singularly Canadian idea, but it boggles the mind to think that if an artist's work can't stand on its own financial merits he/she should be bailed out by taxpayers. If such a system were created, I'd like to join the ranks of the artistic creatives and line up for my monthly employment stipend as I create my own special kind of unpopular and poorly conceived art.

ArsTechnica.com - Telecom: The Motion Picture Association of America (MPAA) has scored a major victory with a recent ruling by the Federal Communications Commission (FCC) that would allow them to block certain movies in consumers' home via remote  "selectable output control" (SOC) activation. Matthew Lasar has more information on this breakthrough development in his topical piece, FCC gives Hollywood control over your home theater. He reports:

After almost two years of deliberation, the Federal Communications Commission has granted Hollywood and cable companies permission to shut down analog streams to HDTV equipped home theaters. The geek term for this is "selectable output control" (SOC)—until now forbidden by the FCC. The Motion Picture Association of America requested a waiver on the SOC ban in May of 2008, arguing that without it, Hollywood studios could not securely offer consumers pre-DVD released movies on television.

"We conclude that the service that MPAA proposes would serve the public interest and that providers of first-run theatrical content are unlikely to offer the service absent the ability to activate SOC," the agency's Order, released on Friday, explains. "While a waiver of the SOC prohibition will prevent consumers who rely on unprotected audiovisual outputs from accessing this service, we are convinced that in the absence of a waiver the service will not be offered at all."

Holy Big Brother, 1984 doublespeak goodness, Batman! Remote activation of a feature on your television meant to keep you from watching certain broadcasts! Lions, and tiger, and bears! Or not. This is only a small change, actually, but one that if used for evil and not good, could bring plenty of angry consumers to the gates of the MPAA secret base with torches and pitchforks in hand. Consumers are already limited in which region they may play DVDs in their home theaters, and this new SOC control is quite similar but might cause some to be concerned because of the remote-control aspect of the program. Comments, any one?

The Bugle: An Arizona man has received a hard-won patent for his pecan picker-upper device. Staff Reports Steve Ayers has more on Dick Tinlin's invention:

After contemplating the problem for a year or two, the 76-year-old mad scientist-turned-pecan farmer, embarked on a journey of discovery, reinventing himself as a nutty professor, seeking to invent the perfect pecan picker-upper.

The result of that journey is Dr. T's Easy Pickin's Nut Harvester, a device so unique and original the U.S. Patent Office issued it Patent No. 7,698,882 last month.

The device overcame all the objections the patent office could throw its way because of its many advantages, not the least of which is an adjustable spring mechanism that can be set to retrieve pecans from the smallest, size 6, to the largest, number 18, and a variety of other similarly shaped objects.

Tinlin prevailed with the US Patent and Trademark Office and is now working with an investor to produce his pecan harvester. Next up for Mr. Tinlin is a modified pecan picker-upper: "'I call it Dr T's Sharpshooter Ammo Casing Retriever,' Tinlin says. 'As soon as I figure out how to make a square spring, I will be back at the patent office.'"

TechDirt.com: An album cover by a band named Elsinore has a dead artist's lawyers up in arms but the art that was copied might itself be worthy of a claim of copyright infringement. Mike Masnick tries to explain this seemingly recursive situation in his recent post, Can Appropriation Artist Claim Copyright Over Artwork Appropriated From The Same Original?

...[J]ust before the album was to be released, the estate of Roy Lichtenstein sent Elsinore a note, claiming that their cover infringed on Lichtenstein's copyright, and suggesting the estate was not at all happy about this. Somewhere along the line, the band went back and spoke to Pyle, the artist who did the painting they were using, and she explained that she had not actually copied the Lichtenstein painting at all, but as part of her art course about appropriation art, she was told to do a piece of appropriation artwork, and rather than appropriate Lichtenstein directly, she chose to appropriate from the same source material Lichtenstein had used. Lichtenstein was not particularly forthcoming about his own original sources, but a guy named David Barsalau has apparently spent years scouring old comic books to find the original images which Lichtenstein originally used, and has put them together in a project he's called "Deconstructing Roy Lichtenstein."

A-ha! So who is copying whom, Mr. Lawyer guy? And if cover artist Brittany Pyle did indeed copy her piece from the original source of Lichtenstein's copy, who's in trouble now? Be sure to read the rest of Masnick's somehow humorous look at the appropriation of art and the legal finger-pointing that follows.

Bonus IP piece o' the day: Patent Minefield Now a Risk for Trademark Owners by Matt Massari at The IP Law Blog.

Fair Use Takes Center Stage In Intellectual Property Debate

ReadWriteWeb: Audrey Watters' recent piece, Intellectual Property and Innovation: Who's Got It Right?, takes a look at the value "fair use" brings to the US economy and compares and contrasts various stakeholders' opinions on copying copyrighted material. She writes:

Companies that rely on fair use generated $4.7 trillion in revenues and $2.2 billion in value added - roughly 16.2 percent of U.S. GDP in 2007. This is among the findings of a report released yesterday by the Computer and Communications Industry Association. The report based its findings on what it dubs "fair use industries," which includes educational institutions, software developers, Internet search and Web hosting providers, and manufacturers of consumer devices that allow for the copying of copyrighted programming.

Noting the importance of the fair use industries for both innovation and economic growth, the CCIA research argues that "enlightened limitations and exceptions to U.S. copyright law have nurtured Internet industries by providing space for them to develop and expand their service offerings to meet the needs of consumers and businesses."

Other concerned organizations, such as the Government Accounting Office, the U.S. Chamber of Commerce, and the Department of Justice are all given a chance to air their side of the story in Watters' complete article which can be accessed above. A lively comment sections follows and shows that the matter of protecting intellectual property can bring out passionate stances and strong sentiment.

eWeek.com: The timely IP agreement between Microsoft and smartphone maker HTC might just be the tip of the licensing iceberg, according to a topical post by Nicholas Kolakowski. In his April 29th piece, Microsoft's HTC Android Agreement May Be First of Many, Kolakowsi reports on this expected avalanche of future deals:

Microsoft’s current approach to Android—as heralded by the HTC agreement—could indicate a willingness on Microsoft’s part to pursue that philosophical stance into the smartphone arena. HTC’s need for leverage in its coming battle against Apple could have made such a deal by Microsoft appealing, although the exact financial terms of the licensing have not yet been disclosed.

“Microsoft’s policy is one of mutual respect for IP and we are committed to licensing our IP on reasonable terms,” a Microsoft spokesperson wrote in an April 28 e-mail to eWEEK. “Phone manufacturers, in general, and HTC in particular, are sophisticated businesses that have a track record of licensing patents to secure the necessary IP rights for their products.”

Microsoft is doing a good job heaping the kudos on HTC and it's certainly possible that the positive outcome between the two tech companies could trigger a slew of similar agreements with other infringing smartphone manufacturers. Be sure to read the rest of the story and check out what Microsoft's corporate vice president and deputy general counsel of Intellectual Property and Licensing has to say about the company's stance on sharing its hard-won intellectual property.

The Blog of Legal Times (The BLT): The US Department of Justice joined in the IP-related event party to celebrate World Intellectual Property Day and Acting Deputy Attorney General Gary Grindler tells the story that the gentle reader is dying to hear. From DOJ's Grindler Promises Aggressive Intellectual Property Enforcement:

Grindler said intellectual property rights enforcement is "crucial to our continued success and safety,” and said it is “imperative that the government act, and act aggressively." Click here for Grindler's op-ed.

“When we fail to enforce intellectual property rights aggressively, we fail to protect some of our nation's most important and valuable resources,” Grindler said. “The theft of even a single trade secret can completely destroy a burgeoning small business.”

And what with the appointment of 15 new Federal prosecutors to round up those suspected of illegally using protected innovations, he's putting the DOJ's money where his mouth is. Be scared, IP thieves, be very scared.

Guardian.co.uk: Absolute Radio settles trademark fight with Absolut vodka by John Plunkett covers the resolution of a long legal battle over the rights to the name "Absolut/Absolute" with both sides claiming satisfaction with the secret ruling's outcome. Here's the takeaway portion featuring both sides' comments:

Absolute Radio is pleased with this settlement which will see us continue to build our music radio brand and advance our position as one of the leading commercial radio networks in a digital age," said Absolute Radio chief operating officer Clive Dickens.

Paula Eriksson, spokesperson for V&S, said: "I am pleased with the outcome of this matter which will enable us to continue to develop the iconic Absolut brand without risk of confusion to the public."

Well done, mates. Just goes to show that sometimes, in the rarest of instances, an IP lawsuit can end in a win-win for both parties. Especially in a case where the disputed use of a trademarked term would easily pass the so-called "dummy in a hurry" test.

Students For Liberty: The CATO institute is hosting a lecture where the Director of Information Policy Studies, Mr. Jim Harper, will "address the great copyright debate of intellectual property." Here's the explanatory passage from the news release:

Modern computing and communications make each person a bigger consumer—and producer—of copyrighted material than ever before. But how well is copyright law working? The constitution authorizes Congress to secure authors’ rights to their writings, but even the term “intellectual property” lacks consensus. Some say people are entitled to own the products of their minds as much as the products of their hands, and copyright law undercuts these natural rights. Others say that copyright law is too restrictive, giving authors power to control information far beyond what is justified. Jim Harper will survey some of the key arguments in debates about copyright and intellectual property, examining information policies that will only grow in importance.

Be sure to visit DC Forum Lecture Series: Intellectual Property as Information Policy to get complete scheduling details and learn about the webcast that will offer the lecture to students all over the world. The event is scheduled for today, the 30th, so don't miss out!

Bonus IP piece o' the day: Brazil court rules Viagra patent ends in June at Bloomberg Businessweek.

China Relaxes Government Procurement Policy

AFP: A recent change in China's government procurement policy is being lauded by international trade partners as a move in the right direction. From Western firms welcome China's revised purchase policy we gather more details of this welcome news:

The original rules, issued late last year, were drawn up as part of an "indigenous innovation" campaign that would favour accredited products, which foreign firms said effectively excluded them from the process.

The policy had caused concerns among foreign businesses, who criticised the move as a push by Beijing to squeeze them out of the market for selling computers and office equipment to government departments.

The latest draft issued at the weekend dropped clauses stating applicants must own the intellectual property rights and trademark, and that the use of the intellectual property must be "independent of controls by overseas organisations or individuals".

Many nations complained that the previous restrictions were unfair and did not allow for outside parties to compete with homegrown innovations but now that China has amended their government procurement policy by eliminating the requirement for all IP be China-based, a new wave of foreign business should be flowing into the most populous nation on Earth.

The Invent Blog: The US Patent and Trademark Office (USPTO) effort to help inventors independently patent their innovations looks to inform and assist such an effort using a series of streaming, on-line videos. "Nipper's" The USPTO’s New LegalZoom Killer? has additional information on the USPTO's new Trademark Information Network, including this description of one of the featured videos:

Before You File — This video provides an overview of the most important issues you should be aware of when filing a trademark application.  It covers such topics as trademark availability searching, ownership information, differences between drawings and specimens, identifications of goods and services, and filing bases.  Failure to understand these topics can create major deficiencies in your application or result in an application that is void from the start.

And where better to start than at the beginning? There are more descriptions and commentary on this laudable effort to help individuals navigate the tricky process of successfully applying for and receiving their patent in the remainder of Nipper's complete piece via the link above.

ArsTechnica.com - Law & Disorder: A recent in-depth investigation by the Government Accountability Office (GAO) reveals the reality behind a number of claims relating to the damage done by IP piracy in the United States. Nate Anderson reports on the matter in his topical article, US government finally admits most piracy estimates are bogus. He writes:

Can we trust any of these claims about piracy?

The US doesn't think so. In a new report out yesterday, the government's own internal watchdog took a close look at "efforts to quantify the economic effects of counterfeit and pirated goods." After examining all the data and consulting with numerous experts inside and outside of government, the Government Accountability Office concluded (PDF) that it is "difficult, if not impossible, to quantify the economy-wide impacts."

Well, we all know that old chestnut about lies, damned lies and statistics, right? It seems there is some additional fact finding in order for those who quote un-sourced figures about monetary damages from piracy. Certainly there is *some* damage done to US businesses from the wholesale theft of intellectual property but if there is going to be any credence lent to cries for additional protections and enforcement, the facts used to make such arguments need to be carefully vetted and checked before being highlighted in talking papers and industry PR news pieces. Be sure to read more on the funny business of facts and figures in the rest of Anderson's informative piece.

KansasCity.com: A Kansas-based T-shirt maker has been ordered to quit production of a large number of infringing products that they have folded up shop. J. Brady McCollough's related KU, Joe-College.com settle T-shirt trademark lawsuit takes a closer look at university trademark enforcement:

The legal battle between the Kansas athletic department and Victory Sportwear, Larry Sinks and Clark Orth — collectively known as Joe-College.com — officially came to an end Monday afternoon when KU announced a resolution to its trademark-infringement lawsuit.

A federal jury in 2008 found Joe-College.com, a Lawrence T-shirt company specializing in apparel focused on KU sports, guilty of willfully infringing several of KU’s trademarks and awarded Kansas Athletics $127,000 in damages. Last year a federal judge ruled Joe-College.com must pay KU more than $650,000 for attorney’s fees.

The fees and fine combined were enough to put Joe-College.com into the red and as of March 31st, they are no longer in business. Kansas University officials are very satisfied with the outcome:

“We are extremely pleased that we can now put this case behind us,” KU athletic director Lew Perkins said. “We did not want to initiate this lawsuit, but it was important to protect KU’s trademarks from infringement and dilution. The jury correctly ruled that the defendants willfully infringed on our marks, and we hope the action we took serves notice that we will take all due action to protect those marks.”

Don't mess with the KU Jayhawks, or else!

NetworkWorld.com: An inside look at intellectual property theftby Michael Cooney details the findings of the recent GAO report on the previously mentioned topic of the cost of IP piracy in the United States. Here's just one tidbit from the study:

According to Customs and Border Protection data from 2004 through 2009, China accounted for about 77% of the aggregate value of goods seized in the United States. Hong Kong, India, and Taiwan followed China, accounting for 7, 2, and 1% of the seized value, respectively. CBP data indicate certain concentrations of counterfeit production among these countries: in 2009, about 58 % of the seized goods from China were footwear and handbags; 69% of the seized goods from Hong Kong were consumer electronics and watch parts; 91% of the seized goods from India were pharmaceuticals and perfume; and 85% of seized goods from Taiwan were computers and consumer electronics.

Whoa! China is overwhelmingly the lead source of piracy for goods entering the US from abroad and interestingly, they are mostly soft goods as opposed to tech products, software or pharmaceuticals. Looks like there's additional help needed on the main land before products ship to the States, nu?

Bonus IP piece o' the day: UNITAID Patent Pool Budget Approved; Implementation To Begin by Kaitlin Mara at Intellectual Property Watch.

Apple Continues To Assert Right To Control Their Products And Services

TechCrunch.com: In Adobe Vs. Apple War Generates Rage, Facebook Group Evelyn Rusli covers Adobe's increasing anger at Steve Jobs' recent announcement that third-party apps such as Abode's Flash will not be allowed to play in the iPad ecosphere. Fans of Abode's popular Flash multimedia application have gone so far as to create a Facebook page supporting the company and bashing Apple. Here are some details of the brewing storm:

The recent war between Adobe and Apple reached a breaking point on April 8, 2010, when Steve Jobs not only recommitted to never allowing Flash to run on the iPhone or iPad, but even banning Adobe’s new Flash-to-iPhone C compiler which was to go on sale Saturday, April 10.

There is no longer any debate as to who the “bad guy” is in this story — Apple has proven themselves to be anti-competition, anti-developer, and anti-consumer.

I stand with Adobe.

That's a very strongly-worded stance over a decision by Apple to more tightly control the products that will or will not work on their proprietary platforms. Sometimes when a company ties their wagon to another company's product, things get messy, as is the case with Adobe and Apple. Calls for Apple-free cubicles are echoing around the Interweb tubes and some of the more fervent Abode supporters are already posting pictures of their Microsoft-centric workstation as an act of solidarity.

In a separate, related piece at TechCrunch.com, Jason Kincaid offers a different point-of-view on the Apple SDK kerfluffle in his topical piece, Steve Jobs Responds To iPhone SDK Complaints: ‘Intermediate Layers Produce Sub-Standard Apps’. He writes:

Greg Slepak, CEO of TaoEffect, emailed Jobs to voice his concerns and got a pair of brief responses, which he has posted to his site. In his first message to Jobs, Slepak included a link to a highly negative thread on Hacker News where many developers criticized the move. Jobs responded:

We think John Gruber’s post is very insightful and not negative:

http://daringfireball.net/2010/04/why_apple_changed_section_331

Steve

In the post that Jobs refers to, Daring Fireball’s John Gruber explains the logic that was behind Apple’s move (and given Jobs’ endorsement of the article, it looks like he was spot on). The gist of the article is that Apple doesn’t want a ‘meta-platform’ to exist between the iPhone and developers, as this would facilitate simultaneous development for competitors’ platforms and give Apple less control over the iPhone ecosystem. But while Gruber’s article is well thought out and very logical, I don’t think it does much to address why developers are furious. The issue isn’t that developers don’t understand why Apple is doing this — it’s that the actions Apple is taking to protect its own interests are violating something fundamental: they’re keeping developers from using the tools they want to work with.

Bygones, people. His Jobness has spoken and I doubt there will be a retraction of the new SDK any time soon. Jobs has done quite a fine job of turning Apple into a goldmine for shareholders and probably has full backing of board and employees. Time to jump on the Apple-mandated bandwagon and cast off the chains of Adobe Flash, et al., developers. Oh, and check out the comment sections of both TechCrunch.com pieces for some heated debate.

InnerDaemon: And not to beat a dying horse, but the author of another post on the Apple/Adobe issue, Sorry, Adobe, you screwed yourself, offers another reason why Adobe finds itself in the unenviable position of being locked out of the iPad App party. From the piece:

Sorry, Adobe, you screwed yourself. You made a business decision in 1996 to screw Apple when it needed you most to gain credibility for its fledgling OS with the creative crowd. Somehow, Apple making a business decision to protect its customers from your shitty product is the most egregious ethical concern of our time.

How about Adobe start fixing their relationship with the Apple community one step at a time: fix Flash for the desktop and then we can chat about the iPhone, iPad and i….

Adobe made a wrong bet in 1996 and is suffering the consequences in 2010 and has no one to blame except themselves. It’s Adobe’s turn to show that it matters to Apple and the tech industry. I don’t remember Apple or Steve Jobs whining in 1996-2006 about Adobe not contributing to the Apple ecosystem.

Innovate or die, bitches.

Things are *really* heating up and there are even rumours of an Adobe lawsuit against Apple for their new SDK agreement. Stronger and stronger sentiments and accusations are being flung around with an increasingly negative tone: it's decisions based on sound business principles and not friendship that drive profits so Adobe is going to have to re-double its efforts to make good with Apple if it hopes to share in the mountain of money that is the iPad marketplace.

The Huffington Post: There's a special kind of math that goes into deciding whether or not to steal another company's intellectual property. A group of banks seem to have tricked themselves into thinking they had the perfect equation for patent theft but are now learning that just because you think you can get away with it doesn't mean that a judge in a court of law is going to agree. Pat Choate's Patent Theft as a Business Strategy clarifies:

America's largest big tech corporations are now using a business technique called "efficient infringement," which means that they calculate the benefits of stealing someone else's patented technology against the possibility of getting caught, tried in court and being forced to pay damages and penalties. If the benefits exceed the costs, they steal.

What makes patent theft so attractive is that infringement is not a criminal act and those found guilty face no jail time. Paying up is the worst that can happen to the infringer.

And who is the target of these carefully-vetted attacks, you ask?

The principal victims of these big corporations' "efficient infringement" approach are America's independent inventors, small businesses and universities - the source of most breakthrough innovations and the creators of two-thirds of all new jobs in America.

This "steal-what-you-want" approach to business is spreading throughout our economy. Now, corporate behemoths in the financial services industry are using the technique and ganging up on small patent holders. Nowhere is this more evident than the case of DataTreasury Corporation, a tiny Texas company locked in battle with some of the biggest banks in the world.

Data Treasury Corporation tried to sell its patented method of check processing to banks back in the 1990s only to have their idea stolen by the very same corporations, seemingly without any fears whatsoever of the potential legal ramifications their actions might bring about, but that seems to have been a bad decision with Data Treasury gaining legal momentum for a doozy of a settlement:

Last week, the federal judge overseeing the case dropped a bombshell. He ruled that DataTreasury had succeeded in arguing that U.S. Bank may have conspired with the nation's other top banks to infringe the small company's patents. That's a very serious charge. It helps open the door to more than $600 million in damages against U.S. Bank, and it raises questions about whether Bank of America, Wells Fargo, and the other banks going to trial with DataTreasury later this year, may have also taken part in the same conspiracy.

Score one for the little guy. Small businesses that go through the trouble to patent their innovations need the protection of the law and this case shows the value of protecting intellectual property no matter how little. Kudos to Choate for highlighting this encouraging development in a long and expensive lawsuit.

The TTABlog: John L. Welch's CAFC Hears Oral Argument In Fred Beverages Fee Payment Case provides additional information on one company's bid to further secure the rights to their trademarked name. Here is the gist of the matter for the gentle reader:

The CAFC heard oral argument on Friday, April 9th, in an appeal from the TTAB's decision in Fred Beverages, Inc. v. Fred's Capital Management Company, Cancellation No. 92048454 (June 26, 2009) [not precedential]. Petitioner Fred Beverages filed a motion to amend its petition for cancellation of Registration No. 3051906, seeking to add four more classes to the petition. The Board denied the motion because it "was not accompanied by any payment or authorization to charge respondent's [sic] deposit account for any of the additional classes sought to be cancelled." An mp3 of the oral argument may be found here (Appeal No. 2010-1007).

Welch offers other thoughts on Fred's predicament in the above linked piece and it's definitely worth taking a moment or two to check it out.

Bonus IP piece o' the day: Of patents, open source, and IBM by Steven J. Vaughan-Nichols at Computerworld.

Laptops And Intellectual Property Find Common Ground In Recent Survey

PatentBaristas.com: How can you bone up on intellectual property *and* have a chance to secure a Sony VAIO W Series mini notebook? Good question, gentle reader! Lucky for you, Stephen Albainy-Jenei handily answers your query in his recent, topical, piece, State of the IP Industry Survey. He writes:

An increasing awareness of the importance of intellectual property (IP) rights to business success has led to unprecedented growth and transformation in the IP sector in recent years, but where does the industry go now?

In IP Review’s State of the IP Industry 2009 survey, IP professionals revealed that they were coming under increasing pressure to reduce their IP management spend, while generating increased profits from their existing assets.

In this year’s survey, IP Review is tracking updates to that position and asking practitioners to set out their views on what is likely to happen moving forward.

The Sony Vaio part comes in when you take part in the IP survey yourself and are entered to win said mini notebook in the process. 10 minutes for a chance to win a killer gadget worth 500 quid is a good deal, so be sure to click through to Albainy-Jenei's piece for the rest of the details.

The New York Times: With the recent release of Apple's iPad touch-based computer into the wild, e-book downloads are sure to increase and with them, an increasingly difficult intellectual property environment fraught with complex rights ownership issues and concomitant lawsuits. Marc Aronson's recent op-ed article, The End of History (Books), addresses some of these difficulties and suggests that the worst is yet to come for digital books and IP-related speed bumps. As an independent author himself, Aronson can offer some insightful observations on what lies ahead:

If rights remain as tightly controlled and as expensive as they are now, nonfiction will be the province of the entirely new or the overly familiar. Dazzling books with newly created art, text and multimedia will far outnumber works filled with historical materials. Only a few well-heeled companies will have the wherewithal to create gee-whiz multimedia book-like products that require permissions, and these projects will most likely focus on highly popular subjects. History’s outsiders and untold stories will be left behind.

We treat copyrights as individual possessions, jewels that exist entirely by themselves. I’m obviously sympathetic to that point of view. But source material also takes on another life when it’s repurposed. It becomes part of the flow, the narration, the interweaving of text and art in books and e-books. It’s essential that we take this into account as we re-imagine permissions in a digital age.

And, it might be worth noting that self-referential books don't strike a deep enough chord to entice many readers to spend valuable dollars on a fantastical and foreign leaps of imagination without a foundation in past referential materials that lend any work of art credence and a natural place among its peers. Aronson also touches on the issue of visual art in books and the way in which publishers of e-books based on printed versions are cutting out various bits & pieces in a kind of literary triage meant to free the digital work from the future likelihood of incurring a lawsuit, which is not the optimal way to present a work of art to the consuming public.

Santa Cruz Sentinel: Patents are playing an unlikely role in a battle between mushroom producers fighting over the rights to a patented variety that could change the face of healthy eating in the United States. At stake is a marketplace worth some $300 million and untold future riches based on the hybridization effort years in the making. Jennifer Pittman reports on this pivotal moment in the history of mycoculture patents in her related story, New hybrid patent produces mushrooming business.

Although the traditional white button mushroom still rules the market, and the company is now working on a new white mushroom strain, the new brown hybrid strain that produces Baby Bellas and Criminis as well as Portabellas, will eventually be 100 percent of the U.S. brown mushroom market, predicts John Kidder, vice president of Monterey Mushrooms.

The company spent the last five years patenting the new hybrid, introducing it first about five years as a Monterey Mushrooms product. A patent was granted in October -- the first new mushroom patent in decades -- and, earlier this year, Amycel, began selling the spawn, or seed, to other commercial growers.

The new strain has quickly "cannibalized" the market, Kidder said. Already it makes up about half the Australian market for brown mushrooms and it has also taken off in Europe as well. "For us this has been very exciting."

There are a number of competitive businesses who attempted to muscle in on this newly-created strain of mushroom but who have since "quietly" resolved their differences with Monterey Mushrooms. Intellectual property plays out in strange ways, and in this case, has made it possible for millions of people around the world to be exposed to a fantastically-popular mushroom that will likely be a money-maker for years to come.

TechDirt: Never a shy one, Mike Masnick suggests that although thousands of citizens have written their opinions to the US Trade Representative under the guise of the 301 Special Report, the submissions that are receiving the red carpet treatment from the Federal government are more of the lobbyist variety. From Masnick's USTR Releases Openness Plan, While Celebrating That It's In The Pocket Of Industry Lobbyists comes an interesting interpretation of the 301 Special Report's openness claims:

During the building of this plan, recommendations centered around two issues: the Anti-Counterfeiting Trade Agreement (ACTA) negotiations and all other trade-related meetings. There was a desire to make all advisory committee, negotiating, and policy development meetings, and texts available to the public in "real time."

So what will this mean for John Q. Public and everyday citizen concerns of the USTR's IP enforcement efforts abroad? Read Masnick's complete story at the link above for one man's thoughts on exactly that subject and decide for yourself.

The H-Open: Are recent worries from open source advocates that IBM is preparing to invoke patent nuclear war against them valid or just another case of "the FOSS sky is falling?" Here's the straight skinny from Big Blue themselves by way of The Linux Foundation's chief coder:

The Linux Foundation's CEO, Jim Zemlin, has published a statement from IBM's Daniel Frye in which he reasserts IBM's patent pledge. Zemlin says, on the basis of this statement "Fortunately, all of us can breathe easy - IBM remains true to their word". Frye says that "IBM stands by this 2005 Non-Assertion Pledge as strongly as it did then. IBM will not sue for the infringement of any of those 500 patents by any Open Source Software".

The statements of reassurance were challenged by NoSoftwarePatents campaigner Florian Mueller, who, in a blog posting, pointing out the original pledge was to "not assert" the patents, a broader promise than promising not to sue. He also notes that the statement comes from IBM's Open Source division, and not the mainframe division which sent the original letter.

Sounds fairly encouraging from a distance but only time will tell if IBM is using a bit of legerdemain to hide their true intentions. Read all about it in Linux Foundation say "breathe easy" on IBM patents.

Bonus IP piece o' the day: Pfizer, Novartis and Eli Lilly got bulk of contentious patents at LiveMint.com by C.H. Unnikrishnan. 

Non-practicing entity Wi-LAN Sues Apple For Patent Infringement

MacRumors.com: A non-practicing entity (NPE) with the name of Wi-LAN has launched a lawsuit against a number of tech companies it claims are infringing on one of its patents, including Apple, who seems to be like lawsuit honey to NPE bees with the recent launch of the iPad. Eric Slivka's Apple Faces Another Patent Lawsuit as it Beefs Up Litigation Team provides more information for the gentle reader:

Wi-LAN is regarded in the industry as a patent troll, a former manufacturing company that has given up on producing devices to focus on extracting licensing fees and filing lawsuits related to its intellectual property. Wi-LAN's suit was filed in the Marshall Division of the U.S. District Court for the Eastern District of Texas, a court popular in patent litigation for its willingness to move quickly and its typically plaintiff-friendly judgments.

The intellectual property in question is "U.S. Patent No. 5,515,369 by making and/or selling various products enabled with Bluetooth technology including cellular handsets and personal notebook computers." That patent description sounds a bit vague to be the basis of a lawsuit against various and sundry tech industry heavies but only the lawyers and judge will be able to divine who's right and wrong.

War On Photography: An antique dealer is coming under increased pressure from New York's Metropolitan Transportation Authority (MTA) for selling old MTA signs that were purchased from a scrap dealer. MTA Abuse of Intellectual Property Rights has more on this intellectual property spat:

For over 10 years Billy’s Antiques in downtown Manhattan has been selling subway signs that he obtained from scrap dealers. According to the story in the New York Times, the antique shop’s owner is being accused of selling stolen property. However, the owner claims that the signs were not stolen, but rather obtained from a scrap dealer. The MTA claims that it tells its scrap dealers to save the signs for resale on its website and that people are not allowed to sell the signs without a license from the MTA. THAT statement is outrageous, since many collectors obtained these signs legally from the Transit Museum tag sales or from scrap dealers long before the MTA began its licensing program. By that logic you could never resell a used car because it contains the logo of the manufacturer. That would be like Coca Cola arranging to arrest anyone who sold a vintage logo they bought from a junkyard or old diner.

It appears that the so-called "first-sale doctrine" might come into play for Billy's Antiques in their continuing battle for the right to sell legally obtained MTA signs, but that doesn't seem to be disuading the MTA legal team from pursuing their IP to the ends of NYC.

TechCrunch.com: As hinted at in a number of recent tech news items, Apple Computer CEO Steve Jobs announced today the company's move to join the mobile advertising marketplace with their iAds service. Leena Rao has more information on this important development in her topical, and timely, piece entitled Jobs Takes A Few Pot Shots At Google, Rubs Salt Into The Wound With ‘iAds’. She writes on Apple's attempts to join the marketplace without creating their own service:

Jobs points out that Apple decided to buy a “smaller company” in contrast to Google’s $750 million acquisition of AdMob. The announcement of iAds comes at a time when there are reports that the FTC is planning to block the Google-AdMob deal, because of anti-trust issues. Google bought the biggest player in the mobile advertising space, and is now being intensely examined for it. And of course, Apple also coincidentally announced its innovative, foray into the mobile advertising world (which is a multi-billion dollar market), just as Google faces regulatory hurdles which may curtail their involvement in the space.

Of course, Apple’s iAds could ends up being superior to the search ads Google has made a living off of. But Apple stepping in means that Google and AdMob officially have competition from one of the world’s largest technology companies in the mobile space, which could be good news for Google’s probable case against the FTC.

Although Apple has decided to enter the mobile ad fray, Google still has to convince the FTC that their market share after combining with AdMob won't constitute an unfair advantage to others who hope to compete in the space.

ArsTechnica.com: In other patent infringement news, Google scored a legal win against a competing advertising word bidding system held by Bid For Position. Chris Foresman reports:

Bid for Position owns rights to US Patent #7,225,151, titled "Online Auction Bid Management System and Method." The company claimed that search advertising systems from AOL, Google, Microsoft, and Miva, Inc. infringed on its patent because they use auction bids to determine pricing for ads on search results. However, the court determined that there were important functional differences between the bidding system described in the '151 patent and Google's AdWords/AdSense and AOL's Search Marketplace.

And these "important functional differences" led US District Court Judge Jerome Friedman to declare "that neither company's system infringed the '151 patent" [AOL is the other defendant] and release Google from any wrong-doing in this particular 2008 case, which is the same conclusion the Court of Appeals came to this week. Sometimes you lose, sometimes you win. Additional narration can be found in Foresman's Appeals court rules AdWords doesn't infringe bidding patent.

Bonus IP piece o' the day: USPTO Launches Ombudsman Pilot Program for Handing Problematic Examinations by Peter Zura at The 271 Patent Blog.