Category Archives: patent

patented tail holes: patent reform

God we so need patent reform. What happened to the non-obviousness requirement? Can someone please explain to me how a cat / dog diaper can have a “patented tail hole”???? What else would a pet diaper have except for a tail hole? Yes, ladies and gentlemen, it is the knowledge economy: the patenting of tail holes.

Available at PlanetUrine.com. See also http://www.dog-diapers.net/catdiapers.html. I just love the URLs.

Description at http://pickyguide.com/pet_supplies/cat_diapers_guide.html:

Cat diapers are worn by cats for trapping waste or urine. They are made like disposable baby diapers, only they are specifically designed for feline use. They are commonly used by cats with bladder or bowel problems or those who have undergone surgery.

This paragraph is a masterpiece of stating the obvious.

My partner notes, “My grandmother made really nice looking pants that were better looking than any of these, I’ll have you know. They were really good looking. … Can’t we just use some of Ada’s little newborn diapers, do you think?”

new US Trade Rep; same bad Hollywood favoritism

see below for update 12/19

Obama has appointed the next US Trade Representative, current U.S. Representative Xavier Becerra (D-CA 31); see also Becerra’s House site. Unfortunately, it looks like he’s going to be in the pocket of tank for Hollywood, just as prior USTR’s have been.

A few notes from some fast research (“googling”):

* He’s a Dem from LA. That’s almost saying enough right there.
* The Washington Times (crazy! but it’s what news.google.com pointed me to) reports:

With strong ties to Hollywood, Becerra fought to have the film industry included in the $137 billion tax bill. He wanted to stem the exodus of film production overseas and to Canada with tax-code changes.

* Google shows him on many, many events with, for, or about Hollywood, P2P, etc.
* He’s taken money from copyright maximalist PACs, e.g., $3000, Jan-June 1995, which went waaay up over the next decade: $38,750, 2005-06 (plus $3000 printing, for a total of $41,750 from copyright industries, against $12,000 from telcos & Internet companies). In ’07-’08, he took $47,500 from Hollywood, plus $5,000 from printing & publishing. Cost-of-lobbying increases, I guess. open secrets

But, while it may be bad on the copyright-front (did we expect anything good?), it’s not necessarily all bad. Like I’ve noticed before, Hollywood copyrightists who can’t see the public interest in copyright can definitely see it in patent law. Becerra cosponsored the “Genomic Research & Accessibility Act” to ban gene patents. Michael Crichton, Patenting Life, NYT, 2/13/2007

Last Friday, Xavier Becerra, a Democrat of California, and Dave Weldon, a Republican of Florida, sponsored the Genomic Research and Accessibility Act, to ban the practice of patenting genes found in nature. Mr. Becerra has been careful to say the bill does not hamper invention, but rather promotes it. He’s right. This bill will fuel innovation, and return our common genetic heritage to us.

He’s also done some pro-librarian work, for example, seeking to add librarians to loan forgiveness plans, e.g., by introducing the Librarian Education & Development Act of 2003 (HR 2674).LIS News 2004/6/9

And of course in other areas — human rights not dealing with access to knowledge — he’s pretty good. So, the task is to get the access to knowledge message to him …

update 12/19 So Becerra turned down the job on Monday (12/15), and instead Obama has appointed Ron Kirk, former Mayor of Dallas, and supported by tech. tech daily dose, from private list

ohohohoh

This is highly amusing. A Constitutional flaw in the way that patent appeals judges have been appointed since 2000 (by persons without authority to do so) threatens to invalidate all the decisions made by a panel that includes a judge appointed since 2000. [My initial hearing of snatches of this made me think there was a problem with the Fed Circuit, which would have been even more hilarious! But this is pretty funny too.]

rotflol …

but seriously, folks, this will never happen. Congress will hastily fix the appointment process and pass a law grandfathering in the eight years’ worth of decisions. The grandfather statute will be challenged, and will be upheld on appeal as a lawful exercise of Congress’ power to regulate commerce. Decisions premised on this problem will be held off or actions stayed until resolution of the dispute.

Charles Miller, a spokesman for the Justice Department, said the government had no comment. “There is really nothing we can say at this time,” he said.

rotfl, rotfl …

But a 1999 law changed the way administrative patent judges are appointed, substituting the director of the Patent and Trademark Office for the secretary of commerce.

And now that Professor John W. Duffy has pointed it out, it’s so completely obvious! Of course the head of the PTO can’t appoint judges. How did nobody ever see this before? … Someone is going to be digging out their notes from nine years ago tonight and going “oh shit….”

teeeheeeheee…. i’m going to be chuckling on and off all the rest of the night.

Duffy paper @ SSRN

new & fabulous uses for business method patents

patent your tax strategies!

No, I’m not kidding. Go read the article. 52 patents for tax strategies have been issued since the first was issued in 2003, and 84 more are pending.

If this annoys you and causes you to mutter grumpily about State Street Bank and the Federal Circuit*, put a smile on your face with an early May review of KSR v. Teleflex: Another in a long string of Supreme Court rebukes to the Fed. Circuit and its “a patent in every pot” philosophy. Yaay non-obviousness standard! **

* I was going to link to Wikipedia for a quick review of the Fed Circuit for folks, but the wikipedia entry sucks: It includes all the employment history of the Fed Circuit and none of the substantive discussion about the rationales for creating it, the criticisms (a lot) and praise (not as much), and attempts to tinker with its structure or copy it for other areas of law. The State Street Bank entry is also not great but it gives citation, link to file, and a basic overview, so it was Good Enough.

** It’s interesting how Kennedy rejected a “rigid approach” for interpreting non-obviousness, because it might not keep up with technology. I compare this decision somewhat bitterly with his opinion in Gonzalez v. Carhart, in which he has no problem applying a rigid standard based on a particular technology (a surgical approach). He premised the right to create a blanket legal rule banning a particular surgical procedure — effectively a technological mandate — on, what? His decision that there was insufficient medical evidence to justify permitting the procedure and that the patients needed the paternalistic supervision of the State lest they make a decision they would regret later on. (Needless to say there was considerably more evidence that the procedure is medically advised in some situations, than there was evidence of any need for state paternalism to protect the emotional welfare of citizens.) I guess rigidity is okay when the patriarchy is involved.

surprise! more copyright stuff!

People have called my attention to a few more copyright & related matters lately:

* Darren Barefoot, who did the project “GetAFirstLife.com“, received a hilarious anti-cease-and-desist in its comments section, purportedly from Ginsu Yoon, VP of Linden Lab (Second Life’s company). Or as Peter Hirtle put it when passing it along, a “proceed and permitted” letter. More P&Ps, please! And fewer C&Ds.

* The recent movie “Dodgeball” hit the courts on a copyright infringement suit; the NYT wrote up the story, hitting some of the colorful details as the court tried to distinguish coincidence from copying, and substantial similarity from generic scenes a faire. (Would it kill the NYT to link to the freakin’ case for readers? I’ll dig it up and post it.)

* In addition to the RIAA’s stepped up “enforcement” at college campuses, the RIAA is also now attacking open wireless networks. (See Wired News blog.) A friend was asking me about this: What’s in it for the RIAA? Are they really trying to deter individuals? Well, to some extent, but principally they’re just trying to keep the issue in the limelight. It doesn’t matter if any individual enforcement action is effective, or if they get bad press; as far as they’re concerned, there’s no such thing as bad press on this issue. The more press on copyright “infringement”, the better. They want to create copyright anxiety (“copyright awareness”).

* And, last but not least, an uplifting story about Bent Skovmand — unfortunately it’s an obituary, so some might not get the “uplifting” part. But what’s uplifting is that this person spent his life seeing a problem and working to solve it. That is a success story. Every time I think of the waste of space and destruction of human energy represented by the current occupant of the White House, I’m going to try to dedicate an equal amount of time to the inspirational life of Bent Skovmand.

In case you’re wondering, the NYT obit is great, and Wikipedia’s entry is stubby but accurate. Basically Skovmand was an agricultural scientist who worked to preserve plant diversity and access. He was concerned about the monoculture techniques of modern industrial farming, even as he worked with farmers and governments around the world to help foster the Green Revolution. Ultimately he began to collect and archive seeds of all sorts of strains of food and agricultural crops, developing a project called the doomsday vault — a warehouse for agricultural crops in an island off of Norway, heavily safeguarded and secured against all manner of natural and human-made catastrophes. The vault will contain at least three million crop seeds.

In keeping with his general concern for openness and human access to genetic diversity, Skovmand critiqued the propertization of genetic information: copyrighting genes is “like copyrighting each and every word in ‘Hamlet’, and saying no one can use any word used in ‘Hamlet’ without paying the author.” According to the NYT, he gave away his own data on CDs, rather than trying to control it.

So — Bent Skovmand. May more of us have the opportunity to lead such fulfilling and satisfying and productive lives.

ip etc. news

so much has been going on that i can scarcely keep up – especially since I just started working full-time with Brennan Center’s Free Expression Policy Project on a new Fair Use Empowerment Initiative.

but lately I’ve been reading:

  • Perfect 10
  • Illinois Tool Works v. Independent Ink (antitrust / patent borders). William Patry has the most insightful commentary I’ve seen thus far on implications for misuse doctrine. No surprise that the *AAs are happy about this. I’m concerned about the ultimate implications w/r/t policy rationales on DMCA anti-circumvention and shrinkwrap licensing …
  • Common Law Property Metaphors on the Internet: The Real Problem with the Doctrine of Cybertrespass, by Shyamkrishan Balganesh, surveys the state of cybertrespass doctrine & considers the property doctrine problems. Available at SSRN.
  • …more later

open content as solution to exploitation of indigenous IP

It’s great to see more info about the rumored the Traditional Knowledge Digital Library — which will publish India’s traditional knowledge:

Indian scientists say the country has been a victim of what they describe as “bio-piracy” for a long time.

“When we put out this encyclopaedia in the public domain, no one will be able to claim that these medicines or therapies are their inventions. Till now, we have not done the needful to protect our traditional wealth,” says Ajay Dua, a senior bureaucrat in the federal commerce ministry.

[I]n most of the developed nations like United States, “prior existing knowledge” is only recognised if it is published in a journal or is available on a database – not if it has been passed down through generations of oral and folk traditions.

The irony here is that India has suffered even though its traditional knowledge, as in China, has been documented extensively.

But information about traditional medicine has never been culled from their texts, translated and put out in the public domain.

A little confusion between “publication” and “public domain” …

No wonder then that India has been embroiled in some high-profile patent litigation in the past decade – the government spent some $6m alone in fighting legal battles against the patenting of turmeric and neem-based medicines.

In 1995, the US Patent Office granted a patent on the wound-healing properties of turmeric.

Indian scientists protested and fought a two-year-long legal battle to get the patent revoked.

Last year, India won a 10-year-long battle at the European Patent Office against a patent granted on an anti-fungal product, derived from neem, by successfully arguing that the medicinal neem tree is part of traditional Indian knowledge.

In 1998 the US Patent Office granted patent to a local company for new strains of rice similar to basmati, which has been grown for centuries in the Himalayan foothills of north-west India and Pakistan and has become popular internationally. After a prolonged legal battle, the patent was revoked four years ago.

The rice patent was new to me. Apparently, we will have to document not just every single preexisting medicinal use, but every single preexisting bit of human knowledge, to prevent companies from trying to enclose human knowledge.

Then they mention the yoga case (now settled favorably for open source yoga advocates):

And, in the US, an expatriate Indian yoga teacher has claimed copyright on a sequence of 36 yoga asanas, or postures.

patent reform reactions

The Professional Inventors Alliance USA is freaking out over a proposed patent rule change, to grant patents to first-inventor-to-file instead of first-inventor-to-invent. According to the PIAUSA’s President Ron Riley, this “unconscionable” and “unconstitutional” procedural change will “strip individuals of their constitutional rights and kill American invention”.

How might these dire consequences occur?

The first-to-file system would no longer reward American inventors for their original ideas, designs and years of hard work. Instead, large companies – even foreign companies – that somehow learn of an idea that was not theirs to begin with could file before the actual inventor and claim the patent rights.

Well — I’m sympathetic to that argument, not particularly wanting large companies to be able to swoop in on little-known inventions. Seems like the problem might be solved by a simple and inexpensive notice-filing system akin to the trademark intent-to-use application. (Of course that would create additional problems, like comparing the notice-filing application to the ultimate application….)

But still, what caught my eye, besides the absurdly extreme language, was the description of first-to-invent as a ‘constitutional’ right. In Art. I, Sect. 8, Clause 8, the Constitution grants to Congress the exclusive Power

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

The first-to-file might surely exclude some inventors from patent protection. But so does the first-to-invent system, which excludes any independent invention that cannot be proved to have been reduced to practice first or which happens to have been invented seconds later. Indeed, if I correctly recollect my patent priority timeline, the timeline was full of rather arbitrary lines in the sand about what can be proved when to establish priority. Each one of these points in time offers an opportunity for actual inventors to lose out (albeit to other ‘actual inventors’). So there currently are plenty of actual inventors who are deprived of the rights to their inventions, but somehow first-to-invent is suddenly a ‘Constitutional’ right.

Oh well. Shifting from first-to-invent to first-to-file is ultimately just a convenience for the PTO and brings the US into line with most of the rest of the world on that matter. Just logically, and also to avoid any grabby-big-business problems, I too would probably prefer first-to-invent. But with so many other more serious problems with the patent system, and so many other ways for grabby big businesses to screw their employee inventors, I can hardly get worked up about a shift to first-to-file.

patents dot bust

Jason Schultz (EFF) has a new article in Salon.com [subscription or ad] about the problems of patents (mostly software or business method, I’ll note) being sold with dot-bust companies. In a nutshell, patents lock up ideas rather closely; when patent-holding companies go bust, those patents are placed in the hopper with all the other “property”, disseminated to buyers, creditors, etc., who may not have the know-how, wherewithal, or interest in using those patents. But nobody else can use the knowledge locked up in those patents, either. In a worst-case scenario, the new “owners” of the patents use them as part of a hold-up scenario.

… My soapbox: If we returned to the good old days, before the advent of automatic-assignment clauses in all employee contracts, then inventors would own the fruits of their own intellect, and companies would have non-exclusive licenses to use those patents. The fruit of an inventor’s genius would not be locked away from all possible public access and use solely because the inventor’s employer had financial problems.

Catherine Fisk (with Chicago-Kent College of Law) has done great work detailing the 20th century trends in taking IP away from authors & inventors, and assigning it to their employers. Removing the ‘Fuel of Interest’ from the ‘Fire of Genius’: Law and the Employee-Inventor, 1830-1930, 65 U. Chi. L. Rev. 4 (1998) is one of several related papers she’s written on the subject.

ip & tech law cites

  • Supreme Court denies cert. in Verizon [10/12] Justices won’t weigh Net music lawsuit tactics | CNET News.com
  • Robertson v. Thomson Corp. [10/6] Cite from slashdot. — apparently this case is Canada’s Tasini, regarding the copyright rights of freelance writers (right?)
  • Novell honors the ancient compact between men and elves in the fight against Mordor: Novell Statement on Patents & Open Source Software. [10/12] See press release. Cite from slashdot. The Statement, in relevant part:
    • We believe that customers want and need freedom of choice in making decisions about technology solutions. …
    • In reality, open source software poses no greater risk of patent infringement than does closed source software. [emphasis in original]
    • Consistent with this belief, Novell will use its patent portfolio to protect itself against claims made against the Linux kernel or open source programs included in Novell’s offerings, as dictated by the actions of others.
    • In the event of a patent claim against a Novell open source product, Novell would respond using the same measures generally used to defend proprietary software products accused of patent infringement. Among other things, Novell would seek to address the claim by identifying prior art that could invalidate the patent; demonstrating that the product does not infringe the patent; redesigning the product to avoid infringement; or pursuing a license with the patent owner.
    • As appropriate, Novell is prepared to use our patents, which are highly relevant in today’s marketplace, to defend against those who might assert patents against open source products marketed, sold or supported by Novell. Some software vendors will attempt to counter the competitive threat of Linux by making arguments about the risk of violating patents. Vendors that assert patents against customers and competitors such as Novell do so at their own peril and with the certainty of provoking a response. We urge customers to remind vendors that all are best served by using innovation and competition to drive purchasing decisions, rather than the threat of litigation.
    • Novell has previously used its ownership of UNIX copyrights and patents to protect customers against similar threats to open source software made by others.
  • RIAA files cert. request in Grokster [10/8] (pdf at EFF).

    my bet? cert. denied. why? *

eta: I lost that bet ….

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David Cobb (G) on privacy & freedom

A presidential candidate has an IP policy. Whoo-hoo!

David Cobb, Green Party presidential candidate, doesn’t like genetic patents, thinks the patent system needs reform, is proud his website is on open source software, and thinks we should codify caselaw striking down shrinkwrap licenses. (Take that, BNetd case!)

(A recent Dan Gillmor column shows that by contrast neither Kerry nor Bush have any sense of the public interest in intellectual property law. [10/4])

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info law news

dmca, patent, & privacy news

two new dmca opinions: diebold (good) and bnetd (bad), plus privacy and MS patent loss.