Biotech in Thailand: How patents can change a developing nation. – by “Alexander F”

With the ever-increasing controversy and importance of biotech patents here in the United States, the biotech patent world outside of this country gets forgotten sometimes. While biotech is only one small component of the patent application pool each year in America, there are some nations in the world where Biotech patents are surging ahead as one of the principle patent application types. One important example of a nation such as this is Thailand.

Having only the 33rd largest economy in the world, Thailand has been boasting one of the most robust and explosive biotechnology patent growths of the past decade. These types of patents, which are usually extremely difficult and expensive to develop, have been seen by Thailand’s government as a ticket to becoming a world player with serious international clout and economic influence. Despite the meager economic strength when compared to other biotech powerhouses like the US and Japan, Thailand’s government has encouraged the filing of of biotech patents in Thailand with substantial monetary incentives. Taking some lead from Singapore’s great biotech success, the patent growth in Thailand was initially funded by direct government investment in state-of-the art research facilities to attract foreign researchers and businesses. The attractive facilities, tax incentives, and internationally aligned patent policies soon brought in foreign investment and development.

This shift has been reflected in numerous ways on Thailand. The country now sits third behind the US and Japan in terms of estimated biotech patents, and biotech enjoys a much larger ratio of the overall Thai patent application pool than either of the two leading nations. These patents have been in a wide variety of biotech fields but two of the most striking are agricultural biotech patents, and, of course, drug patents. On the agricultural side, the now great success has been with their genetically modified resistant rice. This helped the Thai agricultural economy expand rapidly and has made Thailand the largest exporter of rice in the world. Beyond this, Thailand is one of only five nations in the world with net food exports. This transformation into an agricultural powerhouse has had a ripple effect by also increasing employment rapidly and consuming land in the nation so that today, over 50% of the arable land in Thailand is used for rice production.

The drug advancements have also been extraordinary in the past few years. Major investments from foreign pharmaceutical corporations have made many of the drug patents be held by foreigners, but thankfully the Thai patent laws graciously allow this especially for biotech patents. The success of the drug patent development came last year, when the World Health Organization approved Thailand as a principle producer of the H1N1 Flu Virus vaccine.

The implications of this success may serve as a lesson, or prediction perhaps, for the future of biotech patent law around the world. In Thailand, a developing nation, the government adjusted and augmented patent law to encourage biotech patent growth. This expensive yet high-value growth, in turn, added substantially to Thailand’s economy and world significance. Other nations in Southeast Asia and further abroad may try to follow suit and encourage patent regulation in manners similarly to Thailand. This could be a new key stepping stone for developing nations to not only harness their natural resources, but also their intellectual ones in order to gain world standing and economic expansion.

While it is unclear if there is an overall causation for the economic growth here to be found in the increased number of biotech patent filings, the correlation is striking. The theoretical power of relatively few biotech patents being able to jump start an agricultural economy en masse is undoubt an exciting prospect for the development of biotech patent law and its influence on the developing world.

OncoMice revisited – by “Merlyn D”

I apologize for the lateness of my post, but I wanted to talk to some scientists about their perspectives on OncoMouse.  Mainly, this is to de-mystify some of the questions that we came up with during class.

A disclaimer: The scientist I interviewed is my father, Chuxia Deng.  He did his postdoc with Phil Leder, who designed the modifications for the OncoMouse.   He is the Chief of Mammalian Genetics at NIH, and develops animal models.  I thought he’d be able to inform us on some of our misconceptions about how patents work in the Biotech industry.

Our discussion on Wednesday focused primarily on whether you can own life forms.  The primary disagreement that all of us have had is that patenting life also means ownership over the progeny of these life forms, which is a problematic distinction because the owner did not independently create these progeny.  And, if profits go toward the owner of these patents, that would seem counter-intuitive promoting scientific innovation.

To delve further into the issue of how the scientific field operates with biotech patents, Dr. Deng said that one further distinction we should make is how patents work differently in the industry and in academia.

The OncoMouse, for example, access to both processes and actual animals do not require a license.  “For scientific research only, you can get it for free,” he said.  But the scientist must state that “he will request the tool to only use in his laboratory and for research purposes only, and it will not be transferred to any third party without your permission.”  The barriers to reaching others’ scientific data are far fewer in the academic industry, as well.  He states, “For academic purposes, there are almost no limitations.  In theory, you are prevented from doing it, but they are not going to hunt down academic institutions, since there are too many.”

But if you’re a for-profit company like Dupont (who owns the patent to OncoMouse), a license is necessary for obtaining legal use of the mouse.  He says, “For profit purposes, you must pay taxes.  You have to pay and buy a license, because you are using it for your own benefit.”

The additional dimension to the discussion helps to address the problems of owning transgenic mice who reproduce (addressed in Logan’s earlier post). Indeed, the beauty of having a patent on life forms is that you cannot curb scientific innovation that scientists control themselves; heterozygote oncomice who mate have progency that are 75% oncomice.

To tie this post back to intellectual property, let us return to the question about the ethics of patenting human genes.  If the spirit of patenting is about stimulating scientific innovation and academic progress benefits from these developments, then is the act of patenting justified?  For example, should it be the scientist who profits from the cultivating the cancerous cell line (HeLa) from a patient (Henrietta Lacks’s picture to the right)?   The trade-off is that for-profit industries must apply for a license in order to profit themselves, but the ethical implications go beyond scientific innovation and begs the question: why should a scientist benefit from what a person was born with?  Is it not her contribution to the scientific world that matters?

A world that disallows scientific patenting would mean the downfall of the private industry. This means that all research and innovation must be funded through the government, which would change the landscape of biotech drastically: no more sex-performance enhancing drugs, but no stem cells, either.

Apple’s Battle for Trademarks: Story of iPhone and iPad – by “Kai C”

Trademark is my favorite component of intellectual property law. Both the conceptual framework and practical implementation have been successful. I am satisfied given the knowledge that when I walk into McDonald’s® I will get quality burgers at bargain price through the dollar-menu and when I go into Starbucks® I expect decent overpriced coffee supplemented by world-class service. Both companies have spent enormous amount of time and effort into developing the company image that they have today. Exclusive trademark protect both the businesses and the customers. Businesses can protect and enjoy the image that they have developed and customers can ensure that the products they are purchasing are ensured by a reliable trademark.

Apple is a perfect example of a company that has heavily invested in the image of its brand and all of its trademark products. For example, with the introduction of the Macintosh computer in 1984, the company spent about a million dollars to develop one of the most famous and influential Super Bowl advertisements in history to promote the Macintosh trademark:

It is clear that Apple’s marketing campaigns have created the company as it is today. The value of that bitten Macintosh apple logo is worth more than the market cap of many mid-size firms. I would argue that without such heavy investment into brand image, Apple cannot possibly sell its products at the prices they offer today.

Currently, Apple holds 185 trademarks covering anything from the Apple logo to iPod family, to Chicago font. The full list of trademarks can be found here: http://www.apple.com/legal/trademark/appletmlist.html

The most notable feature of the Apple product line are that Apple ‘i’ products. Adding the ‘i’ before product name is one of the most phenomenal marketing endeavors. Apple currently holds 23 trademarks that follow this feature. The ‘i’ product line serves two important roles. The ‘i’ automatically signifies that the product is guaranteed to be of good value under the Apple name. In addition, Apple tends to add a generic name after the ‘i’, such as iTunes, iPhone, and iPhoto. This method helps consumers to easily identify the product functionality. In comparison, the Zune and the Android do not have names that indicate the products’ function. (The Zune is Microsoft MP3 player and the Android is a Google phone platform).

Now, the problem arises when Apple wants to introduce a new product line under the ‘i’ series when the name has already been taken! In fact, that has happened to two of Apple’s most important products: the iPhone and the iPad.

Steve Jobs announced release of the iPhone in January of 2007, however, the iPhone trademark was already owned by Cisco. Cisco bought a company called Infogear Technology, which had developed a product that combined web access and telephone called the iPhone in 2000. Shortly after Apple’s iPhone was announced, Cisco filed a trademark infringement lawsuit against Apple. Cisco claimed that the trademark lawsuit was a “minor skirmish that was not about money, but about interoperability.” The two companies soon reached an agreement in February that allowed both companies to use the iPhone name in exchange for interoperability between their security, consumer, and business communication products.

Cisco iPhone vs. Apple iPhone

A similar case of trademark overlap occurred to Apple’s recent announcement of the iPad. Despite the controversial name that resembles a product used by majority of the female population, the name was already registered by Fujitsu in 2003. Fujitsu’s iPad is a handheld scanner for retailers that has Wi-Fi, Bluetooth, and VoIP support. In this case, Fujitsu agreed to cede the trademark to Apple after an undisclosed agreement has been reached in March.

Fujitsu iPad vs. Apple iPad

The cases of iPhone and iPad shade light upon an interesting topic of dispute in trademark law. Strict interpretation of trademark law would have prevented Apple from taking on the trademark names iPhone and iPad, which would have damaged the company’s branding effort for past decades. Some would argue that Cisco and Fujitsu were more or less lucky to have owned the trademarks and have benefited handsomely from it. On one hand, the names iPhone and iPad were not very valuable before Apple decided to use those names. Neither Cisco nor Fujitsu made visible attempts to glorify their trademark. Cisco’s lawsuit and bid for interoperability and Fujitsu’s disclosed settlement (which I assume meant some form of benefit offered to Fujitsu) were used as leverage to use an asset that they did not create. Yet, according to trademark law, as long as the products still exist and that the companies pay periodic fees, the trademarks should remain with the first registrar. And it sounds fair that trademarks should be given on a first-come-first-served basis instead of who-can-get-most-famous rubric.

My personal take on these two cases is that Cisco and Fujitsu have all the right to grab whatever Apple is willing to offer to sell their trademarks. They should be compensated for sharing or ceding the trademarks they legally own. And if Apple cannot offer what they expect, then they should have the right to retain their exclusive trademarks. Indeed, they are lucky that they are receiving benefits that they obtained through pure luck. But the rightful owner of a property should have the right to enjoy unexpected value increase. However, I can see convincing arguments from both sides. Legally, the opposing view has no potential to achieve substantial success. It would need to come down to a moral argument for the trademark holders.

Just to end on an interesting note, somewhat related to the topic of Apple trademarks: Perhaps Apple needs to be more aware of market potential of ‘i’ series.

http://stewdio.org/iquit/

The power of a trademark: Why the internet shouldn’t change trademark rules – by “Sebastian P”

The trademark is a powerful tool that although has drawn some ire, continues to be a legitimate way to hold the right to an image or theme through an extended period of time. Before we can even evaluate trademarks however, we must first realize what their original intention was for.

Trademarks have existed as a way to prevent confusion between brands. So that companies have control of what their own image is, trademarks work as a means of preventing others from infringing on their brand.  It makes logical sense that people will want to protect the products of their time and energy. The idea pretty much makes the same amount of sense as it did when the idea first came up… back in the 14th century.

Flash forward nearly 700 years. What do we make of trademarks today? Well, in the modern and digital age, now more than ever, trademarks play an important role in brand management. With the ever growing spread of information and pictures throughout the world, it becomes imperative that companies protect their own image when necessary. Now although not all of what these companies do may seem right, the protection of an image and its brand are a necessity for companies (existing and future ones) to have peace of mind in spreading the brand.

Those who disagree will point out the loss of one of Facebook’s most popular games of all time. The now defunct Scrabulous.

For many, Scrabulous was trademark rearing its ugly head. However, all will admit that scrabulous was a clear ripoff of Scrabble.

Was the style of the block the same? Yup. How about the board positioning? Definitely. The value of the letters? Of course. The color of the double up and triple value squares? All of the same.

Now, don’t get me wrong. When Scrabulous was around, it was an amazingly fun game to play while procrastinating homework. However, few if any will disagree that individuals, not of the Scrabble name (said: Hasbro) profited heavily from a product that was not theirs. With all of the blatant use of what Scrabble was, it was only a matter of time Scrabulous was shut down. Many argue that Scrabulous renewed interest in Scrabble, that it sold more product than had been sold in the many decades since it was first released. Just because a product increases the popularity, doesn’t mean that the unauthorized use of the brand is any better. Although Scrabulous looked, felt, and seemed the same as Scrabble, it wasn’t Scrabble. Hasbro had a problem with that and with good reason. Left to its own vices, Scrabulous could have changed Scrabble in ways Hasbro didn’t want to deal with. A brand is an image that gains value from what it represents. When the item for which it represents fragments, there arises problems.

Don’t believe me? Let’s check out the real world to see a similar phenomenon of trademark violations.

These are Nike Hyperdunks. A shoe head’s dream kicks (Translated: An enthusiastic shoe collector’s valuable pair of shoes). These retail for about $100 USD, but further on in its lifecycle, they will retail for a lot more than one Benjamin. As you can tell in the picture, they look awesome, fit very well, are extremely light for their design, and if Kobe Bryant is to be believed, allow you to jump over a speeding Aston Martin.

Oh, the best part of the shoes you just saw in that picture are that they are fake. 100% authentic made in china ripoffs. These are the real Hyperdunks:

These are the real ones

Can you tell the difference? Not many, if any can. They look the same, feel the same, smell the same, and seem to function the same, but they’re not the same. The weighting is different, the support technology different, and apparently they “feel different” (my brother’s words, not mine). However, to the unsuspecting buyer who’ll probably buy this pair of shoes at a “great” deal for $40 dollars on eBay, they might as well be the same Nike hyperdunks they saw advertised. This shoe represents what Nike trademarked: it’s brand, it’s image, and its product. The nearly identical ripoff represents degradation to all three of those aspects. And so, the discounted shoes not only discount the quality of the merchandise, but then charge the discount to Nike’s reputation tab.

Now, I’m not saying that all copies are as blatantly terrible. Scrabulous functioned well and for all intents and purposes, was Scrabble. Hasbro, however, had every right to get rid of Scrabulous as it could have very well misrepresented its brand (as it did when it was buggy in the beginning). To draw from the loss of Scrabulous that trademarks are a cancer in this society is ridiculous. Trademarks are one of the few things that actually seem to work in the digital age. Why fix a relatively working thing when there are other terribly broken things to fix (*cough* copyright, DMCA, net neutrality, patents…)?

-Sebastian

What Mice Will Do – by “Logan M”

Patents were originally created in a world in which the only patentable objects would be tools (I’m leaving aside processes for the purpose of this post). Tools are, quite simply, machines, without brains or life, and utterly dependent on man for their creation. If the tool was not dependent on man for its creation, it was not patentable, because at that point it becomes a naturally occurring phenomena like a crystal formation.

Not alive.

Modern patent law, however, holds that anything man-made may be patented (within the limits set out by Diamond v. Chakrabarty, including biological organisms. Biological organisms hold are different in a key way from the simple tools that were originally intended to be patented: they are by definition alive.

Alive.

What it means for these biological organisms to be alive is, primarily, that they can reproduce. Because they can reproduce, however, their existence is not indicative of an attempt to create, and therefore not grounds for patent-related lawsuits. Take the OncoMouse, for example. Assume that I’m the patent holder and am trying to regulate this product that I own. I sell two mice to a buyer, and those two mice do what it is that mice do and my buyer ends up having 10 Oncomice. Obviously, someone here has violated my patent by creating unauthorized copies of my “invention”, but who? The buyer did not, through his own actions, create new mice. It seems the only one to blame would be the mouse itself. And what do we do to mice that break the law?

http://www.cartoonstock.com/directory/p/public_execution.asp

This is obviously an insane tactic, however. We do not grant biological organisms other than humans rights and do not punish them accordingly. If, however, the limitations a patent imposes on others to recreate the invention can be violated by the invention itself, the patent ceases to have any relevant meaning. Once any loss of control over the invention on the part of the owner can lead to an ever increasing number of the invention being out in the world, there is no reason to believe that they owner can have rights over the organisms that are created through their own means. It still stands that if someone were to seek out and try to recreate the organism, that may violate patent law, but who would do that if they knew they could simply let nature take its course and bring them a fresh new organism?

Earlier I mentioned that, if a tool were to not be dependent on man for its creation, it should be viewed as an unpatentable naturally occurring phenomenon. However, once the initial biological organism is created, subsequent ones fall into the category of non-man-dependent. From this, it only stands to reason that the newly formed organisms are not subject to patentability, and therefore serve as a way around any patent law that may be attempted to be applied to the situation.

The process to create the Oncomouse notwithstanding, the mouse itself is not a patentable entity. Unless the scientists who created the Oncomouse also made it so that it could not reproduce, the mice will do what mice will do, and the being enters the realm of the natural. And nature has its own inevitable course to follow…

Nature's course.

Google Bleeds Trademarks – by “Zak K”

Is Google’s adwords really destroying trademarks?

Bleeding google by ZEV

As the battle with Louis Vuitton and Google’s adwords ends. The outcome not only cleared Google of any liability, but also magnifies the argument of trademark bidding and digital representation. In this case,

Google’s senior litigation counsel Dr Harjinder S. Obhi said the fact the ECJ ruled that the European law which protects internet-hosting services also applies to Google’s AdWords advertising system “is important because it is a fundamental principle behind the free flow of information over the internet“.

http://www.guardian.co.uk/business/2010/mar/23/google-louis-vuitton-trademark-legal-case

I find this argument interesting because the fee flow of information isn’t entirely free. It’s still being regulated by the brain-trust at Google. But, I also find—in this example—that Louis Vuitton isn’t actually being harmed in the production of the adwords by competitors. Fist off, the Louis Vuitton name already has such a strong band, these ads are only going to aid in it’s exclusivity—and desirability. Which, makes it a bad example for the case of adword bidding.

Bleeding Louis Vuittonby ZEV

Second, high fashion brand names like this usually can survive in somewhat of a bubble, it sometimes flourishes from embattled publicity. Which brings to questions Louis Vuitton’s motives behind chasing Google in the first place. Sure, they may think about reaching a settlement or changing some guidelines in the law, but I think the move came as it’s own way of advertising. It makes me wonder—is Google adwords actually harming any of these companies or helping them?

I think the more interesting argument in this case is the incredible power of Googles decisions. They become the ruling arbiter in searching media, which clouds the idea of free flowing information. I could see this as having some positive effects along with the negative. It’s positive in the respects of regulation, they are a business—for profit—therefore creating efficient solutions to satisfy consumers, which means finding new ways to search the internet. Innovation has always been a strong suit (or buying out innovation, but I’m not going to get into that) for Google, which has had profound effects on how most people use the internet. A negative instance, I think, is the effect on the representation of trademarks in the digital world. A vast majority of the digital world is funneled through them, which may or may not align to how one’s trademark would like to be presented to the public. In a way Google is stripping away the single trademark and allowing “free flow” of brand assimilation.

Derek Stroup Candy #3

Derek Stroup Candy #12

Trademarks Galore!™ – by “Hank H”

There has always been an interesting dynamic with boundaries in how they serve not only a primary function in providing definition to a particular state, but inevitably by doing so they also define the state for the reverse, captured in the familiar adage, ‘boundaries are made to be broken.’  if there is ever a case where this cannot be less true, it is with trademarks.

Several years ago, when I was in Seattle, WA, there was a ice creamery on ‘the Ave’–a street in front of the University of Washington. It was a local store that mixed ice cream with ingredients of your choice on a cold, marble slab. None of us had ever heard of ‘Cold Stone Creamery’–which suspiciously sounded like they did the same thing as the then named ‘Marble Top.’ As far as we were concerned, Marble Top was the real deal. Then a few years back, it went through several name changes over the span of a few months: Marble Top, Cold Stone, and Mix on the Ave–unless it’s changed again. Was the store bought out by another franchise? Was it change of management?–everything seemed the same: the comfy, if somewhat worn couches were still in their corners, the flavors, the staff, what was going on? What we later found out was that our favorite ice creamery’s identity crisis was due to trademark issues. Whether or not the owners copied Cold Stone Creamery first, or developed the concept of their store independently, it was clear that there was only room for one marble-top-mixing ice creamery in town.

And this is how simple it used to be. As outlined in William Fisher’s Overview of Trademark Law, trademarks are pretty well defined and straightforward. On one hand, they are simple governing guidelines that define identity, and recognize the value of imagery, visual connection and identification. On the other hand, the Trademark Law also takes into account how these identities operate within the public sphere, so that, for instance, a generic mark that is extremely useful for identification cannot be controlled by a single manufacturer. What these laws have yet to fully address is what to do when identity, be it expressed as a trademark or a logo, is taken out of its traditional medium and thrust into a new context. In Steve Lohr’s A New Battle is Beginning in Branding for the Web (Link), Lohr eludes to new areas of conflict, namely how trademark owners will be faced with wrestling how their identity can exist on new technologies. He touches on, for instance, the purchase of trademarks as keywords for Internet searches. But equally important he describes an evolutionary departure from traditional forms of branding which has evolved to reflect our time. If you think of products and services that we grew up with, we could easily make out m&m’s, for instance, or a gas station.

Internationally recognized trademarks and logos.










Towards the end of Lohr’s article, he describes how technology has also had its own effect in the United States Patent Office. He observes that in prior times, trademarked images were grouped by visual categories, as “‘grotesque humans’ (the Pillsbury doughboy) and ‘human body parts’ (the Yellow Pages’ walking fingers).” His point underscores the shift that has taken place for companies to branch from the traditional practice of branding, which was to create an identity that indicates a singe entity. Branding now has evolved to include, sub-branding to reflect a suite or a family of products or services that fall under one umbrella, a prime example being Apple’s family of products.

Apple’s original logo

Apple’s growing family of products

The interesting aspect for me personally as a designer is to see not only how branding is effected by the changing medium and needs of our time, but it is also to see how trademarks take a life of their own and exist in a new context. In truth, it is only because we have had a foundation of trademark laws that make pieces such as the following short film, Logorama, take on the meaning that it does.

As the definition of branding continues to expand, trademark laws will inevitably need to be expounded and redefine how identification operate in the ever-evolving technological and competitive landscape.

Frivolous Patents and Open-Source Research: Patent Law in India – by “Jacob A”

On April 11th, leading Indian drug makers banded under the collective “Indian Pharmaceutical Alliance” (IPA) to challenge 25 frivolous patent applications filed by several multinationals. For the past five years, since a massive transformation in Indian patent law (effectuated in 2005) that finally allowed the filing of pharmaceutical patents (before 2005, most pharmaceuticals were actually nonpatentable), the vast majority of drug patents have been granted to foreign multinationals. Until the IPA demanded its review of pharmaceutical patent grants, neither the names of the drugs for which patents had been awarded, nor the identity of their makers/patent holders, were known to the public public. With the recent disclosure by the Indian Patent Office, it was revealed that Novartis, AG, and Eli Lilly won roughly a third of the 81 contentious drug patents. Aside from these 25 challenged patents, another 51 were granted to other foreign drug makers (La Roche, Shering Corp., Merck, F. Hoffmann, etc…). Only five of the 81 pharmaceutical patents were given to local Indian drug makers.

http://www.livemint.com/images/C811828E-BD27-4EB5-8254-8EE5B65D0BF2ArtVPF.gif

The IPA alleges that the 25 contentious patents held by Novartis, AG and Lilly don’t merit patent protection under domestic law because they don’t enhance the efficacy of previously known drugs. The tactic, the IPA alleges, has been to “evergreen,” to extend the lifespan of an existing patent (for an indefinite period of time, à la copyright-extension) by tweaking the drug’s molecules a bit, without enhancing the drug’s function whatsoever. We’ll see how the suits play out, and whether the IPA will be successful in challenging the big multinationals’ patent extension efforts.

A large part of the problem with IP enforcement and practice in India, especially with regards to patent granting and infringement, has been the lack of transparency of patent records, which, for all the charges of corruption being thrown about, was really just due to a poor infrastructure.

http://img.funtasticus.com/2007/sept/pharmacy220907/pharmacy003.jpg

It was only last year that extant patent records were finally digitized and uploaded to a central server, and only a few months ago, in October 2009, that the records were finally searchable online. In the same vein, a lack of patent examiners has hindered the patent-granting process (in the past) or, as is the precarious case today, granted patents when there was no justification for doing so.

But if “evergreening” patents was certainly aided by the poor IP oversight, it did not depend entirely on bad infrastructure to carry out its nefarious aims. Evergreening is symptomatic of the egregious overstep of patent granting, but is not its only occurrence. The massive 2005 change in Indian law that finally permitted for the patenting of pharmaceuticals was carefully to include a restriction on traditional and commons-based medicines, a section labeled 3(d), “which restricts protection being granted to already known and long-ago patented drugs and their combinations.” Even despite the new presence of pharma patents, Indian scientists are urging people to infringe on drug patents. Beyond that, on the more constructive end of things, a few scientists have recently mapped out the tuberculosis genome, and are refusing to patent the genome and freeing up future research through an open search approach: “Anyone can take advantage and develop a drug based on our research. The aim here is not patents but drug discovery for a neglected disease.” Open access to the tuberculosis genome will be useful for researchers working on solutions for combatting the disease. Anyone across the world is free to join the effort.

The restriction on the new patent law highlights the enormous frequency (and problematic nature) of patents on traditional drugs. In 1995, the US Patent Office (not the Indian one) granted a patent to the University of Mississipi’s Medical Center for the “Use of Turmeric in Wound Healing.” Since then, patents have been granted to US firms for Basmati rice and yoga postures. When pressed by the Indian government for explanations as to their ludicrous patent grants, the US’ answer was that “’India has not yet made available product patent protection for pharmaceuticals and agricultural chemicals, and thus has chosen to take advantage of at least part of the exclusive marketing rights.”

For Indians in India, the impact of an American patent on Turmeric use is much less significant than for Americans, especially considering that international enforcement and standardization of IP laws (under bodies like the WIPO) is far less strict than domestic enforcement by the US. But consider the case of an Indian émigré in the United States using Turmeric to heal scrapes and wounds – she would be violating the patent. Although it has been revoked, the US patent on Turmeric nonetheless highlights what seems to be the dominant (and quite problematic) strategy of the US Patent Office (which has since, sadly, been adapted by the Indian Patent Office as well), to grant patents, regardless of whether they meets the necessary standards, flaunting left and right the non-obviousness clause, or the efficacy-clause, and to revoke them only when under pressure to do so from external parties.

India is the greatest IP paradox. For all its notorious flouting of IP rights,l India is one of the preferred locations for the R&D labs of those same multinationals pressuring India to strengthen its IP policy and enforcement. IT giants Microsoft, Intel and Motorola have immense R&D operations in India, and pharmaceutical companies are beginning to establish research centers there as well. India is the ideal innovation center because of its sheer mass of low-cost, high-skilled knowledge workers. The average salary of a scientist or engineer in India is $20,000, a figure that pales compared to the $90,000 average in the United States. Whether IP maximization drives India’s stunning knowledge culture, or rather, whether the commons-based approach to knowledge that prevailed until recently is instead responsible for providing IP maximizers such as Microsoft with the R&D they need to function, is a question here left unanswered.

Cybersquatting or Free Market Domain Investing? – by “Elie C”

The market created by domain registration treats domain names like fungible investments that derive value from certain events (such as celebrity dramas, or natural disasters) or bet on future outcomes that may increase the demand for particular domain extensions (although ICANN has rejected the use of .xxx as an ‘online red district’ designation, the commercial value of registering domains with that particular TLD is obvious and akin to making investments based on pending regulatory decisions).

However, trademark plays a major role in domain registration when a ‘domainer’ becomes a cybersquatter who in bad faith intends to commercially benefit from a domain that derives its value from the value of the goodwill of someone else’s trademark. Bad faith includes acquiring the domain name primarily to sell or rent it to the rightful trademark holder or their competitors, or generally profiting from the likelihood of confusion with someone else’s trademark. Cybersquatters can monetize their doman registration by posting paid links or advertising related to the trademark to attract users seeking information related to that trademark. Whereas investing in domains with particular characteristics is not particularly  different from other forms of fungible investing, the market for domain names have led to various forms of ‘bad faith’ registration, such as typosquatting (also bluntly called URL hijacking), which relies on Internet users’s typos when inputting a website URL into a browser to direct users to their domain.

Distasteful for sure, but is it trademark infringement?

ICANN’s UDRP policy allows a trademark holder to dispute a domain name if it is confusingly similar to their trademark or service mark, has been registered and is being used in bad faith, and the squatter has no legitimate interests in the domain name (registering a domain with a trademark ). The Anticybersquatting Consumer Protection Act (ACPA) goes on to establish cause of action for registering, trafficking in, or using a domain name confusingly similar to, or dilutive of, a trademark. But the distinction between a trademark-infringing cybersquatter and shrewd domainer is not always clear (for example, compare a domainer who owns two character domain names that later become valuable to a trademark holder – such as BN.com for Barnes and Noble or AE.com for American Eagle Outfitters – to one who has registered http://wwwwikipedia.org.)

In People for the Ethical Treatment of Animals v. Doughney, the court found that the defendant, who registered peta.org to create a website called ‘People Eating Tasty Animals’, was creating a parody and had the first amendment right to do so. However, when Doughney made statements suggesting that PETA should “settle” with him and “make him an offer,” the court saw this as an attempt to profit from his domain name and ruled that he had violated the ACPA. The nuance between profiting from a recognized trademark and parody is among many gray-area issues surrounding cybersquatting, which the court has noted in this particular case.

Parody or trademark confusion?

A Broken Policy – by “Logan M”

Companies and individuals, in our capitalist society, get ahead and make their existences better (again, in the capitalist sense), through innovation. The government’s obligation to help the individual, and, especially now after the decision in Citizens United, the company, means that the government should assist those entities in their innovating. This is a conclusion derived from simple logic and a fairly well-accepted view on the purpose of government, but one which our government has unfortunately forgotten.

Perhaps that’s a bit mean. Out government has not forgotten its obligation to help us to innovate, it simply has no idea how to do so, at least in the realm of patent law.

Patents were started and continue to be issued in order to promote innovation in two ways: first, because it allows the holder of a patent to gain a unique monetary advantage; and second, because it encourages others to use the public information provided and to improve on existing designs. However, the law as it stands allows for the holder of the patent to seek damages from an “infringer” who has simply, by chance, created something that has already been patented.

This means that if I were to come up with a great idea off the top of my head tomorrow about how to best sell items online, say allowing people to type a list of all the things they want to buy and have my program auto-search the web to purchase them, I could be sued for creating and utilizing such a program if someone else had come up with the same thing and could prove they did so before me. There is no necessary exchange of information – the company does not even need to have released the application before I had my idea. The simple fact is that if a company gains a patent, they can sue anyone for “infringing” it, even if they never intended to do so.

But how does this apply to my original point about the government being clueless about how to help us innovate? The connection here is fear. Anything that I create may have already been patented, unbeknownst to me. That possibility opens up the path for a lawsuit and for my having to pay the holder of the patent. Unless I have some truly and utterly unique idea that I do not believe anyone else could ever conceive of, and unless that idea could make me enough money to justify the risk, it seems like it would be in my best interest to never invent anything. Any invention runs the risk of “infringing” on someone else’s patent, and because of this, innovation is stifled. If the government were to adjust its policy and require the holder of a patent to prove prior knowledge of their product or process on the part of the alleged “infringer” when filing a suit, this fear would be removed and individuals and companies would be in a better place to innovate. This would prevent both my concern above and horror stories such as the one laid out by Gary L. Reback eight years ago. Unfortunately, the law is the same now as it was then, at least in this aspect.

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Lockhorns Comic Strip

The reason Leroy is sad is that he just thought up a grand new method of transmitting data over the internet, but fears it may be already owned by Comcast. Either that or he’s depressed that he didn’t patent his wonderfully “non-obvious” idea for internet sales: