Berne Convention Paved The Way To Modern IP Protection

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

US Copyright Group Appear To Have Copied Website Verbatim

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

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

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

The sweet smell of hypocrisy!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ex-Senator Bob Kerrey And The MPAA Call It Quits

National Journal - Tech Daily Dose: Ex-Senator Bob Kerrey, D-Neb., figures prominently in a recent news story covering his bid to work at the Motion Picture Association of America (MPAA). Juliana Gruenwald reports on the rumored pairing in her topical piece, Kerrey, MPAA Part Ways. She writes:

The MPAA issued a brief statement Thursday saying that the movie industry group and Kerrey "have agreed to end negotiations regarding the position of chief executive officer of the MPAA. The search process for a new CEO will continue."

Kerrey released his own statement that said: "An agreement could not be reached and both sides agreed it would be best to break off discussions."

Kerrey will still have his day job as president of the New School University in New York, according to Gruenwald, which should keep him in the green until he can find a different post to fill, if one opens that both he, and they, find amenable.

MarketWatch: Anheuser-Busch InBev, despite fighting for its right to use the "Budweiser" name in every market on Earth, learns that sometimes, you just can't win, no matter how hard you try, even if you have a top-notch legal team. William Spain reports on A-B InBev's recent loss of the right to the name "Budweiser"  not only in the the Czech Republic, but in a much bigger market (read: more lucrative) that might crimp their profits (not to mention their style.) Here are a few of the pertinent bits from Spain's related A-B InBev loses Budweiser trademark battle in E.U. court:

The Budweiser brand is sold by AB InBev in about two dozen European countries, including the U.K., where both companies are allowed to use the name. But in Germany, Budvar will continue to have it all to itself.

The two have been feuding about the Budweiser name in courts across the globe for decades.

"This judgment has no effect on Anheuser-Busch InBev's business in Europe or our existing Bud and Budweiser rights, which remain strong and intact," said Marianne Amssoms, a spokeswoman for A-B InBev.

She added that the court battle was an attempt "to further expand our extensive trademark rights and gain additional protections that we continue to believe are rightfully ours," she added.

And, sadly, the EU does not agree with Ms. Amssoms (nice last name, don't you think?), which could keep A-B InBev from putting on the crown of world-wide Budweiser beer domination. Check out the rest of Spain's topical piece for the more of this true tale of beer name litigation.

ZDnet - Linux & Open Source: Dana Blankenhorn & Paula Rooney jointly present their views on Why patent consortia are a good thing with a special focus on the benefits non-practicing entities have for open source software. From the blog entry comes these thoughts:

Open source is a shared enterprise. Its purpose is to organize really big ideas, ideas so big they can’t advance under the control of any one company, no matter how big.

Today’s software is something like the Egyptian pyramids we see today, or Machu Picchu as tourists see it today. That’s not what its builders saw. That’s what was underneath. It’s a foundation.

Critics of open source like to talk about how it doesn’t innovate. To some extent that’s true. But that’s not the point, my friend.

Without a sound foundation, software with billions of lines of code in it could never be written, or delivered bug-free at a profit to the world. It’s an organizing principle that works, within the framework of a free society.

Wow. Those are some serious comparisons and suppositions: open source software is like the pyramids and Machu Picchu. But can't we have Eiffel Tower-like applications without open source influences? Why yes, we can. Maybe the two, open source and protected software programming, can play nicely together while still retaining the fundamental principles that make them independently possible?

Bloomberg Businessweek: A sparkling wine showdown ends with the maker of a very high-end product winning over the maker of a much-more recent, and modestly-priced, entry into the marketplace. Don Jeffrey reports on the bubbly bout in his article entitled Champagne Louis Roederer Wins Cristal Trademark Case.

Champagne Louis Roederer, the maker of Cristal, won a trademark infringement case against J. Garcia Carrion SA over the labeling of sparkling wine.

Roederer began making Cristal champagne after being asked to produce a wine for Tsar Alexander II of Russia in 1876 and has been selling it in the U.S. since 1937. Reims, France-based Roederer sued winemaker Garcia Carrion in 2006, saying the Spanish company began importing Cristalino sparkling wine into the U.S. long after Cristal was introduced in the country.

Garcia Carrion and distributor CIV USA must restrict the use of the “Cristalino” brand on the products they sell in the U.S., U.S. District Judge Joan Ericksen in Minneapolis said in a July 27 order.

Never having enjoyed a glass of Cristal, I can't make any claims on the brand's drinkability, or price-to-value rating, but I can happily say that Cristalino is a great buy for celebrating everyday with a high rating at a very reasonable price. In a blind taste test, I imagine the average palate would be pleasantly surprised when the brown paper bags are removed!

Bonus IP piece o' the day: UPDATE 1-Court reverses Tyco loss to Becton in patent fight by Diane Bartz at Reuters.com.

i4i Gains Additional Legal Support For XML Patent In Microsoft Ruling

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Cisco Throws Its Hat Into The “I Love Victoria Espinel” Ring

Cisco Blogs: Mark Chandler, General Counsel and Secretary for Cisco Systems, weighs in on the White House's intellectual property enforcement plans in his topical piece entitled Cisco welcomes launch of first ever U.S. National IP Strategy. He is especially impressed with the newly-appointed IP Czar, Victoria Espinel, who is taking her role seriously:

Ms. Espinel has brought to life Senator Leahy’s vision with her efforts to drive  to crack down on those who would steal intellectual property and create counterfeit goods which undermine the lifeblood of our economy by denying enterprises the fruits of their labors, and who would endanger national security by providing fake goods.  Already she’s making a difference in working to improve Department of Homeland Security efforts to intercept fake goods at our borders.

Cisco welcomes suggestions in the report to improve coordination among all levels of law enforcement and between the private and public sector, and  supports the Administration and Congress in their implementation of its recommendations.  Ms. Epinel’s commitment to interagency coordination has resulted in a comprehensive, mutually-reinforcing plan to address all aspects of intellectual property theft which costs our economy billions of dollars each year and poses risks to our economic and national security.

As one of America’s most innovative companies, we at Cisco look forward to working with the Ms. Espinel and her team as they implement this plan.

Chandler & Co. at Cisco are clearly happy with the much-awaited plan to fight piracy on many fronts that Espinel has created as her first step towards a stronger intellectual property enforcement regimen both in the United States and abroad in an attempt to stop IP theft in foreign countries.

NetworkWorld: In a separate, unrelated piece, Cisco figures largely as a significant loser in an intellectual property infringement lawsuit with Network-1 Security Solutions, a non-practicing entity (NPE), over the use of Power over Ethernet (POE) technology. Jim Duffy has additional details on the case for the gentle reader in Cisco to pay up to $112 million in Power-over-Ethernet patent case. He writes:

The settlement calls for approximately $32 million up front with up to approximately $80 million in royalty payments from Cisco alone over the next nine years. Adtran, Enterasys, Extreme and Foundry have also agreed to enter into non-exclusive licenses for the Remote Power Patent, according to Network-1.

Under the terms of the licenses, the companies agreed to pay to Network-1 an aggregate upfront payment of approximately $32 million and have also agreed to license the Remote Power Patent for its full term, which expires in March 2020.

In addition, Cisco agreed to pay royalties, beginning in 2011, based on its sales of PoE products up to maximum royalty payments per year of $8 million through 2015 and $9 million per year thereafter for the remaining term of the patent. The royalty payments are subject to certain conditions, including the continued validity of Network-1's Remote Power Patent -- the actual royalty amounts received may be less than the caps stated above, according to Network-1.

And there's no telling what Chandler & Co. think about the ruling and resultant fine, as Duffy reports that "Cisco declined to comment." The IP in question, The Remote Power Patent, still has lots of life in it as the protection isn't going to expire until March 2020, at which time Network-1 patent portfolio should be considerably larger if it invests some of its 112 million dollar boon in new IP.

PatLit: Patent appeals that you can afford by Jeremy Phillips highlights a summer booksale by Oxford University Press, including an IP-relevant volume, Patent Appeals: the Elements of Effective Advocacy in the Federal Circuit by Mark Simon Davies. Strike now while the iron is hot to pick up this book for 1/4 of its original 60 pounds Sterling price by clicking through and reading Phillips' entire piece.

Intellectual Property and Sustainable Development: Assorted experts of the medical, and access to medicine, varieties met recently to pen a document destined to be released this Friday at the
joint WTO, WIPO and WHO "Technical Symposium on Access to Medicines." According to Amy Kapczynski,
Assistant Professor of Law, University of California at Berkeley Law School, the draft document includes this opening paragraph which boldly spells out the feelings of a wide variety of signatory organizations:

All people have the right to access the medicines they need to be healthy. As public health groups, humanitarian and inter-governmental organizations, experts and academics that work on access to medicines, we gathered at the University of California at Berkeley to analyze the serious threats that recent "intellectual property enforcement" initiatives pose to this right.  The enforcement agenda threatens the last decade of efforts to achieve access to medicines for people in low- and middle-income countries, and compromises the attainment of health-related Millennium Development Goals. We make this Declaration to call upon policy makers in governments and international organizations to reject the cynical and dangerous efforts that have been made through this agenda to prioritize commercial interests over the right to health.

Of special note is the paper's concerted focus on the White House's comprehensive intellectual property enforcement plan that would increase the likelihood that medicines transiting international borders would be subject to new search-and-seizure laws. The signatories feel that these changes in the policies of the US, and other nations who adopt them, towards medicines being transported out of mostly First World nations and into developing ones would cause the loss of life to those citizens most in need of access to cheaper medicines.

ArsTechnica.com - Law & Disorder: In another story related to medicines in poorer countries, Jacqui Cheng offers coverage on a group of groups who are protesting the United States Trade Representative's (USTR) Special 301 Report sanctions that are keeping the Obama Administration from following through on its promise to help fight AIDS in the developing world. Cheng's aptly-titled Human rights groups slam Special 301 Report sheds light on the subject:

The groups include the Health Global Access Project, the Foundation for AIDS Rights, and the Deli Network of People Living with HIV, and are being led by the American University Washington College of Law's Program on Information Justice and Intellectual Property (PIJIP). PIJIP associate director Sean Flynn said that the groups plan to file a complaint over the Special 301 report on Tuesday, at which time a press conference will be held at the Media Center at the International AIDS Conference 2010 in Vienna.

According to Flynn, President Obama promised to "break the stranglehold that a few big drug and insurance companies have on these life-saving drugs," but has failed to take sufficient action, as evidenced by the 2009 and 2010 Special 301 reports. "This complaint will allege that the continuation of Special 301 attacks on policies promoting access to affordable medications abroad violates international human rights obligations," Flynn said in a statement.

The complaint will likely get some attention in the world media, but whether or not it gets its due consideration from the Obama White House remains to be seen. With so many other key issues fighting for the administration's attention, it's not unlikely that the complaint will be shelved with so many other like it in lieu of more immediate, palliative action.

Bonus IP piece o' the day: Is Famed Trademark Troll Leo Stoller Trying To Stealthily Reclaim Bogus Stealth Trademarks? by Mike Masnick at TechDirt.com.

US Patent And Trademark Office Changes Mind On Pot Patents

The Wall Street Journal: USPTO-approved, cannabis-related patents have come and gone quicker than a dime bag of kind bud, it seems, leaving marijuana businesses without intellectual property protection for their THC-containing elixirs, salves and unguents. An op-ed piece by L. Gordon Crovitz provides all the back ground information on the short-lived life of the marijuana patent category in his related article, Government Drops the Ball on Patents. Here's the 411:

On April 1, the U.S. Patent and Trademark Office created a new trademark category: "Processed plant matter for medicinal purposes, namely medical marijuana." The patent office, part of the Department of Commerce, posted the new category on its website.

But last week the patent office snuffed out the promise of federal recognition. On Tuesday, after questions about the new pot-trademark category from a Wall Street Journal reporter, a patent-office spokesman said the office planned to remove the new pot classification by week's end, and the category is now off the website.

A would-be dream come true for medical marijuana peddlers but the USPTO recognized the problems inherent in examinations of pot-related patent applications and put the kibosh on the whole program to avoid any very funny, YouTube-able scenes from patent examiner's cubes as they test drive the good stuff. Read the rest of Crovitz' piece for the story of the mercurial rise and fall of pot patents. Or should that be Icarus-like?

Bloomberg Businessweek: A Soviet emigrant to the US is suing automaker Toyota over its Prius hybrid car, claiming that the vehicle infringes on his "1994 [patent] for a high- voltage system to power gas-electric hybrid cars." Susan Decker and Alan Ohnsman reports on this potentially devastating lawsuit in their topical, co-authored work, Toyota Prius Success Runs Into Soviet Emigrant’s Patent Claim. They write:

The success of Toyota Motor Corp.’s Prius, the best-selling hybrid car in the U.S., may stall if Alex Severinsky doesn’t get paid.

The Soviet emigrant, who began his career developing antitank-warfare instrumentation, is getting his day in court over his claims that the idea he patented in 1994 for a high- voltage system to power gas-electric hybrid cars was used by Toyota without permission. Severinsky, 65, has spent years trying to get the automaker to pay royalties, and a hearing that starts today may lead to the U.S. blocking imports of the Prius.

“When I invented the hybrid engine, I said ‘this is the biggest invention I can ever make,’” Severinsky, who fled to the U.S. in 1978 with his wife, son and $800, said in an interview. “They are thieves.”

The International Trade Commission (ITC) is now weighing the benefits of giving Mr. Severinsky his financial due against the damage Toyota will sustain if their Prius automobiles are blocked from sale in the United States.

Essex, the ITC judge, has said Toyota can’t try to re-argue the validity of the patent or whether it’s infringed. That leaves the question of whether Paice has a domestic market to protect, and if it’s in the public interest to issue a ban.

Citing potential job losses, lawmakers have written the ITC to side with Toyota. Among them are Senate Republican Leader Mitch McConnell of Kentucky and Democratic Representative Travis Childers of Mississippi, who have Toyota plants in their states.

Paice’s lawyer, Ruffin Cordell of Fish & Richardson in Washington, said other automakers including Ford Motor Co. make hybrid vehicles and could benefit from an ITC order against Toyota.

Maybe some kind of royalty payment might be in order for the patent-holder of high-voltage systems in cars, but to stop Toyota altogether from offering its best-selling green car would seem beyond good reason.

For an in-depth look at the latest ACTA skinny, be sure to check out Kim Weatherall's ACTA: new (leaked) text, new issues… at The Fortnightly Review of IP & Media Law. A snippet to get you started:

So where to from here? The parties are still talking about concluding negotiations by the end of the year.  According to IP Watch, some of the negotiators have seen “a real acceleration” in the more recent rounds of negotiations, and Prof Geist has opined that we could in fact see conclusion of the negotiations this year. Perhaps this is why the tension between some of the negotiating parties is bursting out a little in public.

US negotiator Stan McCoy has said that “there was some progress on ACTA in Lucerne, but not as much the U.S. had hoped”, and the EU negotiators have been accusing the US of ‘hypocrisy’ and drawing ‘red lines’.  To an outsider, it looks like they’re getting to crunch time: and the question of exactly how far they’re willing to compromise has to be faced – but they will be faced, because everyone involved wants to move on after over 2.5 fairly intense negotiating years and more rounds in 2010 than one would care to count. Me? I think they’ll reach agreement, and soon, and they’ve all committed too much to see it fall over.

But regardless of what happens in the ACTA negotiations, I have a feeling that we’ll be seeing something very close to these provisions again real soon.  Because there is another set of negotiations going on at the moment: the Trans-Pacific Partnership negotiations. The TPP is supposed to be “a high-quality, comprehensive 21st century Free Trade Agreement (FTA) that increases economic integration in the Asia-Pacific region”.  That is trade-diplomat-code-speak for “it’s an FTA with everything, like the AUSFTA”. And that means IP will be in it.

NewsyStocks.com: From Beijing, China, comes news of an effort to codify traditional Chinese patent medicine. Instead of having to rely on outside interpretations of what kinds of mixtures to make and prescribe to their patents, doctors will be able to read definitive advice from specialists in book form and act accordingly. Experts to compile textbook on traditional Chinese patent medicine tells the tale:

Traditional Chinese patent medicine,including pills, capsules, and ointments made from Chinese herbal medicines, will soon have their own textbook, Beijing Huimin Health and Medical Development Foundation announced Friday.

Entitled "Proper Use of Traditional Chinese Patent Medicine" , the textbook seeks to end the semi-anarchical state of traditional Chinese patent drugs by guiding doctors in their prescriptions, said Hui Lusheng, the board chairman of the Foundation.

There are more than 9,000 traditional Chinese patent medicines, of which around 1,000 are widely prescribed by practitioners, according to Hui.

"Doctors, without a systematic understanding, usually prescribe them according to the instructions from drug makers," noted Hui.

A boon to patients and physicians alike, nu? The tome also aims to help reduce the number of incorrect applications of Chinese patent medicine that can result in adverse reactions and sicknesses caused by mistaken knowledge.

IPWatchdog: Gene Quinn details a round table to be hosted by the USPTO on the new Enhanced Examination Timing Control Initiative (EETCI) in his related post, USPTO to Host Roundtable on Three-Track Patent Proposal. Here's what Quinn has to reveal to the gentle reader:

The United States Patent and Trademark Office (USPTO) will be holding a public roundtable discussion on its proposed Enhanced Examination Timing Control Initiative, also known as “Three-Track,” currently under consideration by the USPTO. The purpose of the roundtable meeting is to solicit opinions from the public on the proposed initiative. The meeting will be held on Tuesday, July 20, 2010, from 1:30 p.m. to 5:30 p.m. at the USPTO headquarters in the Madison Building Auditorium, which is located at 600 Dulany Street, Alexandria, VA, 22314. The meeting will also be webcast. Web cast information is available on the USPTO’s website by visiting http://www.uspto.gov/patents/announce/3track.jsp.

If you can't attend in person, be sure to tune in for this exciting public forum discussion on an important USPTO program-in-the-making via the web. Both USPTO Chief David Kappos and USPTO Commissioner for Patents Bob Stoll will be in attendance, which should make for a lively event with the IP community, the public and members of the media invited to attend.

Bonus IP piece o' the day: Google Spent $100 Million Defending Against Viacom’s $1 Billion Lawsuit by Erick Shonfeld at TechCrunch.com.

Marijuana Inc. Applies For Patent On ‘True Cannabis Derived Remedy’

Bloomberg.com: Microsoft scores a major intellectual property (IP) win in China with a recent judgment in their favor for the amount of $477,000. Mark Lee provides additional news of this exciting development in his topical article, Microsoft Settles China Intellectual Property Dispute With CITIC Kington. Lee writes:

Microsoft agreed to settle a lawsuit it filed against CITIC Kington Securities at a court in the eastern city of Hangzhou, the U.S. company said in an e-mailed statement today. CITIC Kington will buy 3.23 million yuan ($477,000) of Microsoft software as part of the settlement, it said.

The maker of the Windows operating system is stepping up action against Chinese companies for unlicensed software use. Microsoft is losing billions of dollars to software piracy in the world’s third-biggest economy, Chief Executive Officer Steve Ballmer said in May.

A seminal event and one that shows China is getting on board the infringement enforcement bandwagon. Microsoft stands to recover further millions from fraudulent Chinese software consumption if additional cases can successfully be prosecuted in favorable legal venues.

Channel Register: New Zealand's judiciary strikes out into unknown territory with a controversial court ruling that makes software "unpatentable". Kelly Fiveash reports:

The New Zealand government has decided to push through the country's contentious new Patent Bill without making any amendments to it, thereby making software "unpatentable".

However, NZ's commerce minister Simon Power noted that the country's Intellectual Property Office would draft new guidelines once the Bill has passed the final stages in Parliament.

The rulebook will eventually allow inventions that contain embedded software to be patented, he said.

So the ban is not 100 percent against protection for software innovations, it seems, and there is bound to be future wrangling over the "anti-software patent" move by powerful IT lobbies. Read all of Fiveash's NZ government makes software 'unpatentable' (for now) for the rest of this developing story.

Groklaw: In re Bilski gets a new day in court with a ruling that declared an HP patent application invalid. Rather than quote out the details, which happen to be very much in favor of such a ruling, and therefor are only valuable as a look at what the other side thinks, click yourself through and read Alladin Sane's Sanity From the 1st Post-Bilski Decision from BPAI: In Re Proudler.

Wolters Kluwer: A surprising number of companies report the theft of intellectual property according to a recent poll. More than one third of companies believe their intellectual property has been stolen highlights the problems encountered by companies who don't practice strict controls over their sensitive information. And, it should come as no surprise that a large portion of IP theft events come due to employees snooping and stealing from their employers. Here are a pair of relevant passages for the gentle reader's enjoyment:

Thirty five percent of participants in a recent survey believe their company’s highly-sensitive information has been handed over to competitors. This is according to Cyber-Ark Software’s fourth annual “Trust, Security and Passwords” global survey. Thirty-seven percent of the IT professionals surveyed cited ex-employees as the most likely source of this abuse of trust. While perhaps not surprising that disgruntled workers top the list, it’s noteworthy that 28 percent suspected “human error” as the next most likely cause, followed by falling victim to an external hack or loss of a mobile device/laptop, each at 10 percent. The most popular information shared with competitors was the customer database (26 percent) and R&D plans (13 percent).

There was little year-over-year change in the number of respondents who suspected the loss of intellectual property to a competitor, indicating that more needs to be done to protect companies’ most valued assets. Additionally, to address vulnerabilities related to human error that could expose a proprietary database or financial information, organizations must employ additional layers of control such as the ability to grant privileges to sensitive data and systems on-demand. This limits “innocent” mistakes by allowing access to information only when users need it to perform a particular task or query.

Managing tight control of information and compartmentalizing it carefully might seem inconvenient and unnecessarily stringent, but the theft of IP can cost a company millions in lost revenue if it falls into the wrong (read: a competitor's) hands. Learn from their mistakes and be sure your IP auditing and control program is in place and running as advertised.

Market Watch: Here's an interesting take on a patent application: a true cannabis derived remedy. Filed by a company doing business as Marijuana Inc., the patentapplication should both raise eyebrows and get some serious news coverage to boot. Here's the scoop:

Marijuana, Inc. (PINKSHEETS: PCIO) announces the pending application for a true cannabis derived remedy. Marijuana, Inc. intends to file a patent application as the owner of a cannabis-based capsule to be taken orally. This formulation for pain management, one of the integral properties of cannabis, may help those suffering pain from a myriad of diseases. Formulator and inventor Reverend Dr. Douglas Van Dyke stated, "This Shamanistic blend of herbs has shown great promise for pain management treatment among a closed group of patients. The probability of efficacy among a large control group is quite feasible and we welcome the opportunity to prove the formulation." Marijuana Incorporated (http://www.marijuana-incorporated.com) has several other planned patent applications waiting to be filed including a topical lotion.

And with that, you can put on your sunblock and get high all in one fell swoop! Stay tuned to see what the US Patent and Trademark Office thinks of Dr. Van Dyke's Shamanistic magical lotion but for now read the news release entitled Announces the Pending Patent Application for a True Cannabis Derived Remedy.

Bonus IP piece o' the day: Puzzling 9th Circuit Dilution Opinion Over eVisa.com--Visa v. JSL by Eric Goldman.