Drug Patents & Patent Pools – by “Daniel S”

The deep issues of the Patent system are clearest, perhaps, in the realm of chemical drugs. While pharmaceutical companies are few and require great funding (the main defense of drug patents is related to the high cost of drug research and development), they still operate as multinational businesses. Notice both words: multinational businesses, meaning that they seek to minimize their expenditures and maximize their profits on a worldwide level. But the inequality between the First World and the Developing World is terrifyingly deep (and getting deeper) and five thousand dollars needed for a year of HIV medication is a number that doesn’t mean the same in San Francisco as in the Sub-Saharan Africa. In trying to define quality of life, one often speaks of needs, and there should certainly be a line drawn between consumer products and human needs. The idea of patent pools has been forwarded as a solution to the inequality of consumption. Patent pools assemble the research of “originator” companies and allow smaller pharmaceutical companies to produce their drugs and sell them at lower costs while still paying royalties to the originator. Ideally, this means that prices vary according from country to country (situation to situation), which is an adjustment to, if not the Law, the markets and situations of specific places.

Fragmentr – Collaborative Image Remixing – by “Ryan W”

Fragmentr is a collaborative image remixing tool. Users can upload images to the active fragmentation which displays the most recent 5 images. The images are masked into 30 different fragments and shuffled at random. At regular intervals the site generates an archive of the fragmentations that form a visual blog.

Fragmentr beta is open to the public, and welcomes interesting images from your collections.


Note: Fragmentr uses Webkit CSS which is only supported by Chrome and Safari browsers.

No More Statutory Damages = No More Copyright Problems? – by “Max C.”

From an HLS 3L, Jason Harrow:

[I]t became clear to me that the one change in the law that will solve the most problems in the simplest way is reform of statutory damages…

Here’s the current scheme in a nutshell. The Copyright Act has two ways that plaintiffs can recover damages in a case of infringement. The first way is the way plaintiffs recover in almost every other civil case: a copyright holder can recover his actual damages and lost profits. But there is also a unique second measure of damages that plaintiffs can recover instead: something called “statutory damages” that can range from $750 to $150,000 per work infringed, constrained only by what a judge or jury “considers just.” There are currently several major fights about just how far such damages can go, like whether you can recover over $600,000 against a regular filesharer who earned no profits and caused no measurable harm, or whether you can recover damages that run into the trillions against the operator of LimeWire. But even if there are some limits in the most extreme cases, the threat of astronomical damages, even when a copyright holder has not shown that infringement has caused him any harm at all, is a very scary prospect.

Last week, Professor Stark asked us to share our thoughts on the single thing we’d most like to see fixed in intellectual property— and I don’t think any of us suggested this one. It seems pretty reasonable from an infringer’s point of view (read Jason’s full post to see the list of problems it solves), but pretty unfavorable to a license holder. It places a heavy burden on the license holder to go out and actually sue everyone to recoup lost profits— statutory damages both discourage infringement with a heavier penalty and provide more money to the license holder even if he or she can’t catch every infringement.

“Alternate Revenue Streams” – by “Ryan W”

Microsoft and Barnes & Noble are dueling it out over B&Ns Nook reader which runs on Android OS. Microsoft alleges that the Nook infringes on multiple MS patents for things ranging from “tabbing through content” to “document interaction and web surfing”.  Microsoft expert Mary-Jo Foley asserts that this is a part of a larger strategy to combat Googles rising market share in the OS market. MS essentially attempted to extort exorbitant royalties from BN for the various infringing features or else face massive lawsuits.

Mike Ros at Buisness Insider points out “Android includes Linux at its core, and Microsoft established years ago that it thinks Linux infringes its patents. (That claim never been tested in court, but tons of Linux distributors have signed licensing deals anyway — which boosts Microsoft’s future claims.) Last year Microsoft began trying to strike deals with Android smartphone makers. HTC signed a deal. Motorola didn’t, and Microsoft sued.”  In effect allowing MS to profit from Android’s success.

Is this a misuse of Patent Law? Are they getting a bad rap and in fact they did innovate these features and deserve to be rightfully compensated (ie create an alternate revenue stream)? Or is Microsoft evolving to the next stage in it’s trajectory toward being the panultimate, anti-competitive patent troll?

It has been suggested that the recent House approval of the American Invents bill will generate jobs, and patent reform is a crucial part of economic recovery. The money collected by the Patent Office will be retained by the organization and allow them to expand and more quickly process patent applications. In a way this aspect of the reform does very little to address the bloody tech-giant patent wars, and in fact adopts a similar strategy to microsoft. The alternate revenue stream: Funds generated via the problematic infrastructure of our current patent system.

Patent Reform on Two Fronts – by “Bill T”

Congress is currently on the verge of passing its most comprehensive patent reform in decades. The America Invents Act would overhaul much of the organization of the US patent system by creating a patent-specific Trial and Appeals board among other reforms. This is the back end of patent reform. Congress is seeking to adjust the principles on which the USPTO bases its practices in order to overhaul the system. While I do think the proper way of solving the problems with the Patent system is from the inside out, I personally think that the America Invents Act falls short of what needs to be done. But the back-end reform is not all that’s going on.

A front-end adjustment is also in the works. Until the cuts made in staving off a government shut-down this year, the USPTO had been expecting a sizeable increase in funding which would be used to help streamline its operations with new offices, increased personnel, and other practical reform efforts. Indeed, one major provision of the America Invents Act was to give the USPTO full autonomy over the fees it brought in, rather than divert some of it elsewhere in the budget. The $2.3 billion that the patent office was expecting, however, was cut to $2.09 billion, funds remain diverted, and many of the front-end reforms have been forced on hold. At once, Congress has sought to enact and limit patent reform. And the consequences of that limitation could be disastrous. Not only are developments like an expedited application process or a midwest satellite office held indefinitely, but hiring is frozen, overtime is eliminated, and employee training is reduced. This budget doesn’t just place an obstacle before progress in patents, it forces us to regress.

To me, this indicates an ignorance on the part of Congress of the problems of patent law. This contradictory approach to the patent system would not occur if Congressmen understood the scope of what needs to be adjusted, on both the front end and the back end.

Patent Troll Wins 5Mil from Google – by “Wesley W”

The conclusion of a suit filed against Google in 2009 by Bedrock Computer Technologies(a company accused of being a patent troll) has been decided. The jury decided that Google’s use of the Linux kernel in its servers was infringing on a Linux patent. The court ruled that Google should pay 5 million dollars for the infingment.

This ruling is interesting because Linux is widely used in the open source community and the finding of infringement has implications for other users of open source software. The ruling could hurt Google in other patent lawsuits regarding Android software, which also makes use of the Linux kernel. Bedrock also has pending cases against Yahoo, Paypal, Myspace, Amazon and other companies. While the ruling was only for 5 million dolllars it shows that Bedrock may be successful in suing many others who use the Linux kernel. It could open the door to more software patent trolling.

The troubling thing about the ruling is that the use of the Linux kernel on Google’s servers was considered infringing. Bedrock could use this ruling as grounds to file suit against a huge number of open source users who use Linux effectively taxing anyone who uses the software. Oddly enough the patent lawyer responsible for the activities of Bedrock in this instance also works with PubPat, an organization that works against undeserved patents and bad patent policy. This is either highly ironic or a shrewd attempt to make a public example of how flawed the current patent policies are. But, as things stand now Google has been trolled to the tune of 5 million.

The docket naming other defendants in the case can be found here.

Going from Inquisitorial to Adversarial – by “Victor W”

Bearing resemblance to inquisitorial systems, the present patent system lays a lot of responsibility on patent examiners who serve as the primary investigators and judges. With hundreds of thousands of applications a year, it’s no wonder patent examiners are overworked and backlogged.  It’s become a tradeoff between quality and quantity, which could be tempered by making the system to be a bit more adversarial.  Doing so would require the Patent Office to not only consider the perspective of a patent applicant, who is obviously incentivized to see the application move forward, but also consider the perspective of a highly motivated opposition. While more information may lead to better decisions, it may also require too much work.  However, several changes to the current system could be made that simultaneously improve the quality and quantity of patent examinations.

Peer to Patent was a great first step by opening up the process to public input. Outside parties could upload prior art which would invalidate frivoulous patent applications.  The next step would be to open up the process further and invite the equivalent of amicus briefs by outside parties who may have an interest in the outcome.  They could file explanations of why the patent-pending invention was obvious or somehow unqualified to be patented.  This process change would make patenting more in line with receiving other government licenses and approvals that require public hearings.

Google Patents could serve as inspiration for a web application that serves as an automatic adversary against patent applications.  The idea would be to run the claims of patent applications through Google Patent search to return the most relevant existing patents and surface possible prior art.  It could go further by searching the websites and presentations of patent filing companies to identify possible prior art.  It could also expand the search automatically to academic journals and online press.  All of this information could be compiled automatically into a succinct dossier for the patent examiner to start the examination with.

At some point, Peer to Patent could get more social by actually automatically inviting parties to oppose an application.  It could identify businesses and parties affected by a patent application by searching for related patent filers and holders.  It then would mail or email the relevant parties about the patent application and solicit opposing arguments or prior art.

Of course, all of these changes rely on valid and meaningful information being provided by opposing parties.  Requiring a nominal fee for accepting 3rd party material would help discourage frivolous information from being submitted.  Certifying information to be true under the threat of federal criminal charges of perjury will also discourage false information from being submitted.

If all these technical and procedural changes aren’t enough, a simple legal change could make a huge difference.  In actual patent lawsuits, the current legal standard for throwing out a patent is “clear and convincing” evidence that a patent is invalid.  Microsoft is currently arguing the standard should be lowered to simply a “preponderance of evidence” as is the case in civil lawsuits.  Lowering the bar would make patent lawsuits much more focused on the validity of the patents in question.  It would actually bring patents into the adversarial legal system we already have.

All in all, the patent system would have much to benefit from a progression towards a more adversarial process.  Does anyone disagree or does everyone accept my findings which are based on a cursory examination of the facts?

Victor Wong is the author of two patent applications for online advertising related technologies.

But I Just Have to Infringe! – by “Adam P”

An undetermined number of months ago, I was browsing the internet as I often do, and I stumbled upon a pretty interesting ad for Samsung. While it may require a thick stomach toward some adolescent humor, it was very well done and even a bit inspirational.

Attack helicopters and uncomfortably misogynistic depiction of bosoms aside, I found myself fascinated by the technique of taking something traditionally two-dimensional and making it three-dimensional. I’d since been developing a sense of just how animation and special effects are done, and I never could shake that 3D image of the Girl with the Pearl Earring fighting secret agents, so I eventually I tried my own hand at doing what Samsung had done. It was a simpler take on the idea, with fewer models and no sound, but it’s an project I’d become quite proud of.

The piece it’s based on is M. C. Escher’s Hand with Reflecting Sphere*. This is unfortunate.

You see, there is a key difference between Hand with Reflecting Sphere, and the famous historical paintings featured in the Samsung ad. Hand with Reflecting Sphere wasn’t printed until 1935, which is well after January 1st, 1923. Thus, the piece wouldn’t conveniently turn out to be in the public domain. This was by no means my only encounter with copyright infringement. Oh, not even close! In high school I had made a music video for a song called Haitian Fight Song by Charles Mingus about two students fighting with trash pick-up sticks, and later on I’d make a reckless driving PSA using images and footage found entirely online without paying the rightful dues to their original author. Nevertheless, my teacher at the time, the wonderful Mrs. Gaulke, encouraged the infringements because for whatever reason, those images and that song brought about some creative impulse in me, and in her mindI was growing as an artist. Throughout the years I couldn’t separate myself as an artist wanting to create something new from myself as a spectator constantly influenced by the images and art around me, and the spectator in me would always try to gauge how exactly a certain song or image or reference could alter a film piece that I was working on.

Perhaps it’s my own lack of originality, or perhaps there are many other filmmakers like me that break copyright laws with the purpose of making something interesting and original. If the initial purpose behind copyright was to encourage creativity, then certainly any proposal for copyright reform should take a look at how modern filmmakers treat copyright.

Browsing various video uploading sites and video aggregator sites alike, it’s clear to find that copyright concerns are not highly regulated. There are plenty of montages of celebrity photos and clips ripped from television stations, but these are not the users that copyright laws were meant to encourage because these videos simply take another person’s work and recreating it. However, videos that take an artist’s work and recontextualize it so that it works towards an entirely new project don’t belong in the same category. Take Skyler Page, the mind behind Crater Face.

Skylar is an animator with very few short films to his name. For the most part, he has a series flipbook animations and silly live-action shorts about animating on his youtube channel, most of which only have a few hundred hits. He is by no means a large name, and it’s doubtful that he supports himself on his art. In other words, he’s in the same situation as so many aspiring filmmakers, yet he managed to create a deserved hit with the above video. Nevertheless, the video appears to infringe a copyright by using the Dan Deacon song Pink Batman, and for the purposes of this argument, we’ll assume that it does.

Hopefully one can understand that it’s the freedom of choice in selecting a song which allowed Skylar to experiment. By ignoring copyright, he was free to make precisely the video that he wanted. Now of course, no copyright reform would have allowed Skyler to use a song only three years old without paying some sort of royalties, but in an age in which it’s so simple to use another person’s copyrighted material it’s an inevitable fact that artists will use others material. Regardless of the current, past, or future legality, the appeal of this freedom of choice is impossible to ignore for anyone that calls him or herself an artist.

Current copyright legislation seems to see this current culture of misuse as a growing threat, and reform is targeting the same mentality that I just deemed to be inevitable. Rather I believe copyright reform should do more to understand the usefulness of this freedom of choice. Whether or not that means increasing the number of works in the public domain as proposed with the Public Domain Enhancement Act or lessening the gravity of the proposed punishments for copyright infringements it doesn’t so much matter because there will inevitably be people breaking the law regardless of how it’s reformed. Although if there copyright reform allowed for my three-dimensional M. C. Escher Orb to live in its hole of the internet without fear of a takedown notice, that’d be just fine by me.

Lock’em out – by “Jennifer W”

As Charles Kenny shouts in the headline of his latest entry to ForeignPolicy.com, U.S. cartoons are holding the developing world hostage via copyright reforms that cripple creation while strengthening copyright holders’ dominance. That is to say, no one in the world (that expects to stay in good relations with the U.S.) can build upon the creations of U.S. companies until those creations fall into the public domain and with the recent barrage of extensions to the length of copyright protection, that’ll be awhile.

[I release the above cartoon into the public domain for you to do what you will with it…but I can’t swear that Disney won’t sue for the use of gloves on my characters. hmm…]

As anyone worried about finding a DMCA notice on their virtual doorstep knows, copyright is complicated, and it’s only getting worse as large corporations continue to push copyright laws down a road of vaults and locks on all things they see as being profitable. But if copyright as it stands is complicated, reform may be even more complicated. As typically happens anywhere a governing body forms, the good intentions of an original system slowly get twisted, bound, reinterpreted, edited, and otherwise convoluted so that no sense of the original intentions can be derived. It’s like a legal mash-up that if subjected to copyright law itself would likely fall under fair use since the derivative is so transformative…but it’s not often healthy for society, and its definitely not where the framers intended it to go.

For instance, New Zealand just passed a bill that could terminate internet accounts if their respective holders can’t prove that they didn’t file-share copyrighted materials. It’s a bold ‘guilty until proven innocent’ move that puts large corporations on top of the file-sharing game while simultaneously threatening internet users’ lifestyles by putting their internet phone, mail, and business functions on the line. It’s reasonable to ask, how would someone defend against an accusation of file-sharing in New Zealand? Can you image having your internet disconnected leaving you without email, Skype, search engines for an unknown quantity of time for something that perhaps you simply couldn’t defend against? Something tells me we haven’t heard the last of this one but it nevertheless begs the question, were copyright holders ever intended to have the right to cut infringer’s connection to the world off for an offense? That’s an incredible power! The next think we’ll know, anyone found to be plagiarizing will be banned from reading books. That’ll improve society.

While copyright law may have initiated as an incentive plan for all creators, more and more stringent and restrictive copyright laws now show that copyright today only stands to ensuring compensation for copyright holders–which often [sadly] isn’t even the creator. This message strongly opposes that which copyright classes around the nation enforce–that copyright law is not intended to ensure one ‘makes money’ off of creations but rather incentivize the production of new works through ensured limited control over the use of those works. Well given all the copyright reforms in the works, good luck convincing students of that in the future!

It seems that law makers around the world have forgotten that culture is collaborative and therefore creation is always going to build upon prior creations. Hence, incentivizing creators by giving them rights to control how their work is used for a limited amount of time, gives the creators an upper hand on furthering their own creations–which at one point was a great source of pride and yes, sometimes revenue but not necessarily the latter. But, of course, this was always meant to be a temporary right to control because the longer items are kept out of the public domain the fewer building blocks other creators have to build upon and that inherently slows the advancement of creations. Law makers seem to have forgotten that part. Instead of coming back to the goal of optimizing the creative environment, more and more governments are simply creating civil deviants out of our culture’s creators by punishing them for being influenced by those who come before them.

And now not only will they be civil deviants but they may be angry, disconnected deviants in New Zealand should they be found to say, file-share a mash-up of their favorite recordings.

Good move out there, governments! Allow our prisoners access to the internet but not file-sharers; that’s just logical! These are the criminals that are ruining our society [file-sharers]! Cut off their access to the world until they come up with a spontaneous stroke of genius that creates their own copyrighted creation over which they may hover.

Sounds like we’re on the right track. [Check, please!]