I've been a big fan of StackExchange, for a while, as a very cool platform for getting expert insight into a variety of (mostly, but not entirely, technical) questions. The platform is so useful that, last week, Google even announced that it was pushing its own YouTube API developer support efforts off of its own Google Groups platform and over to Stack Overflow (the original StackExchange site). But that appears to be just one area in which the two companies are collaborating. As they announced today, StackExchange and Google are working together on AskPatents.com, a site dedicated to better crowdsourcing prior art.

And it's not just StackExchange and Google working together: they've teamed up with the USPTO to make it easier for good prior art to be submitted to the USPTO to (hopefully) invalidate bad patents. While we were incredibly underwhelmed by the America Invents Act, which was last year's attempt at patent reform, it has (finally) made it much easier to allow third parties to submit prior art which may be helpful to examiners during the ~18 hours they spend in reviewing each patent. There was the famed Peer-to-Patent program, which I was quite skeptical about, but this seems to take that to another level, thanks in part to the useful setup of StackExchange's system that helps float good ideas to the top.

But where this gets much more powerful is through integration in two key spots. First up, this will be integrated into Google's patent pages. Recently, Google launched its prior art finder, which tried to help people find prior art through automated searches -- but you can now also click through directly to the AskPatents site by clicking a "discuss" button that will be shown on each patent page, which will take you straight to the StackExchange page. Neat. The second integration may be even more powerful. As people find useful prior art and it bubbles to the top, StackExchange's system will make it easy to then directly submit it to the USPTO. Clicking a button will take you to an already filled out USPTO form, where a bit of additional info can be added and submitted.

StackExchange founder Joel Spolsky sees this as an opportunity to help stamp out bad patents: "Collectively, we’re building a crowd-sourced worldwide detective agency to track down and obliterate bogus applications. Over time, we hope that the Patent Stack Exchange will mitigate the problems caused by rampant patent trolling. It’s not a complete fix, but it’s a good start."

There are still tremendous structural problems with the patent system. And, at best, a system like this just helps to prevent some of the bigger mistakes, rather than attacking any of the fundamental problems. But, given just how damaging absolutely ridiculous patents are these days, anything that helps stop bad patents has to be seen as a good thing.

Updated: At 5pm ET, the USPTO called Jamie to say that a contractor had set this up, and after reviewing their policies, they had stopped blocking such sites...

Well this is bizarre. Jamie Love from KEI was over at the US Patent and Trademark Office (USPTO) for a meeting about "global negotiations on intellectual property and access to medicine." The meeting itself was held in a room that it uses for the USPTO's Global Intellectual Property Academy (GIPA), and there is free WiFi for people to use. Love tried to log onto his own website... and found that it was being blocked as a "political/activist group."

Access Denied (content_filter_denied)

Your request was denied because this URL contains content that is categorized as: "Political/Activist Groups" which is blocked by USPTO policy. If you believe the categorization is inaccurate, please contact the USPTO Service Desk and request a manual review of the URL.

For assistance, contact USPTO OCIO IT Service Desk. (io-proxy4)

Love then checked a bunch of other sites... and noticed a rather distressing pattern. For public interest groups who advocate that the existing copyright/patent system is broken, the websites were all blocked. ACLU, EFF, Public Knowledge, Public Citizen, CDT... all blocked. However, if you're a lobbyist for maximalism? No problem! MPAA, RIAA, IIPA, IPI, PHRMA, BSA... come on through. They do allow Creative Commons. Thankfully (for us, at least), they don't seem to block blogs that talk about this stuff. Techdirt is allowed, as are things like BoingBoing, Groklaw and Larry Lessig and Michael Geist's blogs. Though, oddly, a bunch of political sites (DailyKos, TPM, RedState, Rush Limgaugh's site) are blocked.

It may be an "over active" filter -- but it does seem particularly disturbing that all those groups who fight for the public's rights on the very issues the USPTO is dealing with on a regular basis have their sites completely blocked.

We've pointed out over and over again that the revolving door between the government and the big copyright maximalists represents a broken system -- and we're seeing it yet again. David Carson, the long time General Counsel of the US Copyright Office has announced that he's leaving that job... to become head of global legal policy for the IFPI (the international version of the RIAA). His role will be to "coordinate the recorded music industry's legal policy strategy worldwide." Think he'll have undue influence with the US Copyright Office? He's only been in General Counsel of the US Copyright Office for 15 years. Of course, the IP-Watch story linked above shows how the revolving door works both ways. In effect, Carson is replacing Shira Perlmutter, who left the IFPI role earlier this year... to become the chief policy advisor on IP issues for the US Patent and Trademark Office.

You may remember that last fall, there was an incredibly weak attempt at patent reform known as the America Invents Act. This was the result of a nearly seven-year-long fight over patent reform, with nearly every good idea from early proposals being watered down to completely useless, and a few bad ideas ramped up for good measure. Nothing in the AIA actually dealt with the problems of patent trolls or patent thickets. One of the ideas that survived the years-long culling was flipping the US patent system from a "first to invent" system to a "first to file" system. I've long argued that this is a very bad idea for a variety of reasons. First, it encourages inventors to file for lots of patents as early as possible to beat anyone else to the Patent Office, rather than making sure that the invention is actually worth patenting. It also seems to go against the basic principle of the patent system, if it's supposed to reward actual inventors. Finally, switching to a first to file certainly seems likely to favor large companies with big legal staffs that can focus on rushing out as many patent applications as possible. Smaller entities might be in trouble.

To be fair, the arguments in favor of this switch are basically (1) everyone else does it (mostly true) and (2) proving who was first to invent is a total pain in the ass and can be slow and costly. Thus switching to a first to file system could save a lot of wasted time and money in the cases where there's a dispute. That may be true, but I'm not convinced it's a good reason.

That said, it doesn't much matter what I think: it made it into the bill and is now the law. The US Patent Office is now seeking comment on how it should go about implementing this new rule. It's put out two requests. First, it wants to know how it should change the examination guidelines for patent examiners (pdf and embedded below) to take this new rule into account. Second, it wants comments on how it should amend the "rules of practice," regarding this change -- since the current rules are based on the old "first to invent" system.

For those thinking of participating, this is not the place to argue why "first to file" is a bad system (or even why the patent system is broken). I imagine any such filings will be (correctly) deemed off-topic and discarded. However for those patent holders and patent lawyers (and scholars) for whom this change is a big deal, now might be the time to share some thoughts with the USPTO for how it can implement this change with as little damage as possible.

One of the big problems with the patent system is that it's not an adversarial process at all. You only have advocates for why a patent should be granted. No one is on the other side arguing why it shouldn't be. The examiner is supposed to be neutral, but actually has some implicit incentives to find things more patentable than not. For example, patent examiners are often reviewed on their productivity in getting through patent applications. Considering the backlog of patents, this isn't a surprise. But since there's no such thing as a true "final rejection" of a patent, the inventor and their lawyers can keep coming back, asking the patent office to try again. But each time the examiner has to go back and review the same application all over again, that's time away from a new application, and thus hurts his or her "productivity."

Making matters worse, once a patent is granted, it has to be presumed valid under the law. Meaning that even though it has never actually been tested in an adversarial process, the courts simply assume it's a valid patent. The fact that when patents do get re-examined, somewhere around three quarters of them have to be adjusted, with previously approved claims rejected, certainly calls into question just how "valid" those patents are. One of the small changes in the patent reform bill that past last year, the America Invents Act (AIA), was that it will now be slightly easier to file documents with the Patent Office for a patent application under consideration, rather than waiting until after the patent is granted.

This is definitely a step in the right direction, though, I do wonder how widely it will be used. Part of the problem is that it's often not at all possible to tell what a patent actually impacts until after its granted and the holder sues or threatens to sue. And no one can watch every application to see if they might have some useful prior art or evidence of obviousness. Either way, the rules for such third party submissions go into effect September 16th, and the USPTO is releasing its official rules for how the process will work (pdf and embedded below). There is a fee involved -- $180 -- but it's exempted for your first submission on a particular patent application if that submission is less than three documents. That may be a bit limiting, but it does suggest that individuals with clear prior art or proof of obviousness might at least be able to weigh in a bit to convince the examiner that an application is totally bogus.

Perhaps one of the most famous patent lawsuits -- which really highlighted the whole patent troll problem -- was the case of NTP vs. RIM, which ended with RIM paying over $600 million to settle the case, even as the USPTO was rejecting NTP's patents. Since then, RIM has been involved in a number of other patent lawsuits as well, including one that it lost last week against "Mformation Technologies." RIM has been told to pay up another $147.2 million in this case.

Of course, what some people forget is that RIM brought much of this on itself. Before NTP even came on the scene, it was RIM who started suing a bunch of other companies for patent infringement, based on its broad portfolio of patents around wireless email and mobile devices. On top of all that, RIM's business is collapsing. The company is fighting for relevancy as its latest operating system has been delayed -- and there's growing evidence that even once it comes out, no one's going to care about it.

RIM can try to put a nice spin on things, but it seems clear that the company is in serious trouble. Perhaps, next time, it will focus on improving its products more than getting caught up in the patent game. Yes, many of these more recent lawsuits came from it getting sued, but there's no doubt that RIM drew a lot of attention to itself early on with its own patent lawsuits against others.

A few years back, Techdirt noted that India had 16,000 licensed drug manufacturers in the 1990s, and became a net exporter of pharmaceutical products. Things changed somewhat when India joined the WTO, which forced it to recognize pharmaceutical patents, but more recently it has started moving back towards generics, notably with the compulsory licensing of a kidney and liver cancer drug that was being sold by Bayer in the country for around $70,000 a year.

Now India has made another bold move in the field of healthcare:

From city hospitals to tiny rural clinics, India's public doctors will soon be able to prescribe free generic drugs to all comers, vastly expanding access to medicine in a country where public spending on health was just $4.50 per person last year.

The plan was quietly adopted last year but not publicized. Initial funding has been allocated in recent weeks, officials said.

Under the plan, doctors will be limited to a generics-only drug list and face punishment for prescribing branded medicines, a major disadvantage for pharmaceutical giants in one of the world's fastest-growing drug markets.

That's clearly going to have an immense effect on a country where 40% of the population live on $1.25 or less, meaning that paying for drugs is out of the question. The article quoted above estimates that 600 million people could take advantage of the scheme over the next five years.

But it will also have a major impact on the Western pharma companies, since it will effectively lock their products out of one of the two most important markets for the future. Combined with the compulsory licensing of more modern drugs, the latest move by India is deeply troubling for the world's main drug companies. That's reflected in both Bayer's attempt to contest the compulsory licensing order, and USPTO deputy director Teresa Stanek Rea's extraordinary claim that the move was in violation of TRIPS, clearly not the case.

India's decision to adopt generics across its entire healthcare system also stands in stark contrast to provisions in TPP that will make it much harder for local manufacturers in signatory countries to produce generics legally. As a result, TPP looks more and more like an attempt to lock emerging countries into old and one-sided business models that are stacked against them.

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Well, this is unfortunate. We've written a few times about how various countries, under the TRIPS agreement are able to break patents on important medicines in the interest of public health. Most recently, we wrote about how India did this with a cancer drug made by Bayer called Nexavar. Despite the fact that Bayer has more than made back the money it spent bringing Nexavar to market, it's been pricing the drug at an unaffordable $70,000/year. After India allowed a small bit of competition, the price has dropped. We've seen that the USPTO doesn't like this at all and has tried to claim that high priced drugs are good for one's health, but that's beyond ridiculous to anyone who actually thinks.

Of course, "thinking" and "Congress" aren't words that often go together, so it appears that the USPTO is now trying to pull one over on Congress, with USPTO deputy director Teresa Stanek Rea misleading Congress by suggesting that these efforts violate international agreements like TRIPS. Unfortunately, TRIPS says exactly the opposite:

Rea told the committee, saying she believes the issuance of the Indian compulsory license was in violation of the Agreement on Trade Related Aspects of Intellectual Property Rights, an international pact administered by the World Trade Organization which sets minimum standards for intellectual property regulation. Rea said the USPTO is working to stem the tide of IP infringement in foreign countries by the use of a host of training programs and educational efforts aimed at foreign officials and judges along with the placement USPTO overseas IP attaches in Thailand, China, Russia, India, Brazil and Egypt.

Article 31 of the TRIPS Agreement expressly permits compulsory licenses as does the much earlier Paris Convention on the Protection of Industrial Property. The U.S. Itself routinely makes government use of patented inventions pursuant to Congressional authority under 28 U.S.C. Sec. 1498, but also has other laws allowing compulsory licenses in specific circumstances. Compulsory licenses have been allowed globally in the vast majority of intellectual property regimes since the 19th century. And, the patent on Nexavar in India had been granted under a 2005 Amended Patents Act that clearly articulated compulsory licensing rights at the time that Bayer prosecuted its patent and the patent was granted.

Finally, and most to the point, the US signed the Doha Declaration on the TRIPS Agreement and Public Health that pointedly grants countries the right to issue compulsory licenses, to define the terms upon which such licenses are granted – without restrictions, and to define the emergency circumstances that permit licenses to be granted without any prior notice to or negotiation with the patent holder (note: these expedited, no-negotiation procedures were not used in the Natco case). Under the Doha Declaration, countries are permitted to issue compulsory licenses in order to ensure “access to medicines for all” – something that India has attempted to do via the license granted.

It's a shame that the USPTO appears to be so in the tank for big pharma (they get lots of patents, which helps pay USPTO salaries...), that they're willing to mislead Congress on issues like this, even if it means that very sick people around the globe don't get the medicines they need.

Ah, the wonders of trademark law and sports stars. Earlier this year, we wrote about the rush to trademark "Linsanity" when afterthought point guard Jeremy Lin suddenly became an overnight sensation for the NY Knicks. In that case, a bunch of others sought the trademark, and a week or so later, Jeremy Lin himself jumped in to try to get the trademark as well. A quick search at the USPTO shows nine "live" trademarks on Linsanity (well, eight that are just "Linsanity" and one that is "Linsanity 17" -- which is Lin's uniform number). For what it's worth, it seems like only one of those marks is actually held by Jeremy Lin, and it certainly looks like there may be some overlap, so perhaps there will be some litigation at some point.

Apparently, young sports stars are very quickly learning to rush to the trademark office. Baseball phenom Bryce Harper -- at 19 already living up to the massive expectations Sports Illustrated lumped on his shoulders three years ago -- recently got some attention for telling a Canadian reporter "that's a clown question, bro" in response to a question about his favorite beer and if he was going to go out and celebrate with a beer since he's of legal drinking age in Canada (where they were playing).

The very next day, Harper filed for a trademark on "that's a clown question, bro." It almost makes you wonder if he'd been saving up that line... As of the latest search, he's the only one filing for it so far, but the link above notes that a brewery in Colorado has already brewed up a batch of beer called "Clown Question, Bro." Since Harper's application is for apparel, it's unlikely it applies to beer. Though, if it were me, I probably would have called it "Clown Question, Brew." Either way, Under Armour, the sporting goods company that Harper has a deal with already, has said that it's going to be releasing a "line" of shirts around the "clown question, bro" phrase.

Meanwhile, moving back to basketball, there's the news that NBA-bound college hoops star Anthony Davis has filed for trademarks on both "Fear the Brow" and "Raise the Brow" after his... er... "trademark" unibrow. His explanation?

“I don’t want anyone to try to grow a unibrow because of me and then try to make money off of it,” Davis told CNBC. “Me and my family decided to trademark it because it’s very unique.”

I'm not quite sure how one "tries to grow a unibrow" if they don't have one already -- and if they legitimately have one, then why is it that only Davis gets to make money from his unibrow? For what it's worth, as the article notes, the phrase has been popular for a while, surrounding his success at Kentucky, but he couldn't profit from it as that would cut into his eligibility as an amateur (cue rant about stupid college sports rules). Either way, lots of "bootleg" apparel was sold -- some of which the university tried to stop, though I'm not sure they had any legal basis for doing so in many cases. There was also one local store, Blue Zone, that sold stuff and filed for its own trademark on the phrase for apparel. There may be an issue there. Davis' trademark application is super broad in terms of what he claims it will apply to. Blue Zone's mark is just for clothing, but Davis' is for a ton of stuff, including clothing, but also fragrances, entertainment "services," water bottles, book covers, pencils, trading cards, lunch bags, facial tissues and much, much more.

Does Davis have the right to supercede Blue Zone's mark just because he's the one who has the actual unibrow?

Either way, it seems like a sign of the times, that sports stars these days are rushing to the trademark office at every opportunity to file trademarks on some identifying characteristic. I'm not sure this is a positive development.

Torrentfreak has the story of an economics professor (of all things) who has apparently received a patent on a way to try to force students to buy expensive textbooks. The professor, Joseph Henry Vogel, is positioning this patent (8,195,571) as an "anti-piracy" technique, though it appears that it works equally well in preventing students from sharing a single textbook or merely checking the textbook out of the library. The details of the patent are hardly new or innovative either. The basics are that the class has both a textbook and an online discussion board -- and buying the textbook provides you a code that allows you to enter the discussion board. In theory, you could also just buy the code.

There'a all sorts of idiocy involved in this situation. Let's just separate out a few examples:

1. How the hell does something like this get patented in the first place? There is a tremendous amount of prior art in the form of things like "one-time" use codes for video games and other digital offerings to limit the used sales market. And yet this still gets approved? USPTO examiner James D. Nigh should be ashamed for letting this piece of garbage get approved.
2. The claims here (the patent only has four) are so broad and so general, I don't see how it passes the non-obvious test, nor how it is anything more than mashing together a few different things that are widely available already and have been for years. After the KSR ruling the USPTO was supposed to reject broad patents that just combined basic concepts already found in the market.
3. How could a professor of economics actually think that locking up access to information is a good idea? That alone would make me avoid any class that he taught, as his understanding of information economics is way, way off.
4. It's sad that anyone in academia would think that this is a good idea. In an age where Harvard and MIT are investing a ton into opening up access, this guy is focused on locking it down.

The whole thing is extraordinary for how bad of an idea it is -- and the fact that a patent was actually issued on this only compounds the ridiculousness.