by Mike Masnick
Thu, Aug 30th 2012 10:34am
by Mike Masnick
Tue, Jul 31st 2012 10:58pm
Patent Office Seeking Comments On How To Implement A 'First To File' Regime Instead Of 'First To Invent'
from the help-them-not-muck-it-up dept
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.
by Mike Masnick
Wed, Jul 18th 2012 7:29pm
Patent Office Releases Rules To Let Third Parties Provide Documents To Help Reject Patent Applications
from the could-be-useful dept
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.
by Mike Masnick
Mon, Jul 16th 2012 3:03am
from the live-by-the-patent,-die-by-the-patent dept
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.
by Glyn Moody
Wed, Jul 11th 2012 1:54pm
from the why-pay-more? dept
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.
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.
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.
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.
by Mike Masnick
Tue, Jul 3rd 2012 7:29am
The USPTO: Where Up Is Down, Expensive Medicine Saves Lives, And Cheap Alternatives Violate International Law
from the not-a-surprise dept
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.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.
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.
by Mike Masnick
Wed, Jun 27th 2012 9:37am
from the fear-the-clown-brow-question-bro dept
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.
by Mike Masnick
Tue, Jun 12th 2012 2:32pm
What Kind Of Professor Patents A Way To Make It More Expensive & More Difficult For Students To Learn?
from the insanity dept
There'a all sorts of idiocy involved in this situation. Let's just separate out a few examples:
- 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.
- 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.
- 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.
- 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.
by Mike Masnick
Mon, Jun 11th 2012 11:30am
from the *sigh* dept
Instead... they focus on this bizarre Steve Jobs example.
All evidence suggests that patents continue to drive innovation in technology. At the time of his death, innovator Steve Jobs had more than 300 patents. Companies such as Apple have made transformative changes in our lives, made possible by massive investments made by intellectual property. But while such companies develop brand-new technologies and services, they also perform incremental innovation. Thus, IP conflicts arise as the byproducts of a very healthy overall innovation environment. The tech industry is characterized by extremely sharp drops in costs over time, extremely strong increases in performance, and multiple changes in market leads, with different companies leading at different points in time. That tremendously competitive marketplace is a sign of the critical role IP rights play in driving technology companies to invest, compete, create jobs, and drive exports.Of course, as a friend pointed out, since the report covers trademarks, copyright and patents, it's a little strange that they focused solely on patents in their "defense" of the report. After all, as the "grocery store" discussion points out, the vast, vast majority of the "jobs" counted in the report are related to trademarks. And, so far, nearly all of the policy efforts that are highlighting the report are around copyright issues.
Oh, and then there's this:
Lets add to it another chart, one we published a year and a half ago, put together by the folks at Patently-O.
Yes, these are also correlation figures, possibly not causal. But the correlation can be useful in showing that something doesn't add up from the story (it's not so useful for explaining causation, but rather just for indicating that a causal relationship doesn't appear to be present). So it seems even more bizarre and more questionable that the Commerce Department is waving around "Steve Jobs had patents" as the defense of the report -- when the data from their own report doesn't even seem to agree with their own conclusion.
by Mike Masnick
Fri, Jun 8th 2012 11:25am
from the seriously? dept
And yet, the entertainment industry and government officials have been trotting out the massive "jobs" count in this report as proof that we need expansionist IP laws and agreements like SOPA and ACTA.
As I mentioned in the post yesterday, back before this report came out, the White House had reached out to say that they knew I was interested in this kind of information, and asked if I'd like to interview the "economic experts" behind the report. I said I'd love to interview their experts. I was passed along to a Department of Commerce spokesperson, who asked me to pre-submit questions before I could interview the "economic experts." I always find that sort of setup to be a little ridiculous. Either let me interview the people, or don't. Don't make me pre-submit questions.
Either way, I was in the middle of a heavy travel schedule, and it took me a few weeks to have the time to go through the report more carefully, and come up with a list of questions, which I eventually sent. The spokesperson seemed confused that I would still be interested in this report, even as it was being used repeatedly by entertainment industry execs and government officials as justification for bad policies. After I followed up a few times, I was told yesterday morning that they were "unable to accommodate an interview" (remember, they had reached out to me first), but provided me with the following "statement."
All evidence suggests that patents continue to drive innovation in technology. At the time of his death, innovator Steve Jobs had more than 300 patents. Companies such as Apple have made transformative changes in our lives, made possible by massive investments made by intellectual property. But while such companies develop brand-new technologies and services, they also perform incremental innovation. Thus, IP conflicts arise as the byproducts of a very healthy overall innovation environment. The tech industry is characterized by extremely sharp drops in costs over time, extremely strong increases in performance, and multiple changes in market leads, with different companies leading at different points in time. That tremendously competitive marketplace is a sign of the critical role IP rights play in driving technology companies to invest, compete, create jobs, and drive exports.As I said yesterday, this statement is so ridiculous that I emailed the spokesperson back and said that, while a statement like this one is a goldmine from the perspective of being able to write a story about just how clueless the Commerce Department is, I'd much prefer a substantive discussion in which they respond to the various criticisms and concerns about the report and the methodology. I pointed out that the statements above do not respond to the criticism, and instead appear to suggest that they don't have a substantive response to that criticism at all. And thus I hoped they would reconsider and actually respond to the questions.
On methodological question:
The IP report focused on identifying “IP-intensive industries and examining their characteristics and contributions to the overall economy.” One measure of the contribution of these industries to the overall economy is the number of jobs in these industries; other measures we looked at are value-added; wages earned by workers in these industries; and exports.
Instead, they seem to double down on the exact things that sparked the initial criticism of the report: they don't even try to distinguish the fact that people get patents or copyrights from the question of whether or not those tools were needed for the innovation to occur. Instead, it's just "well, Steve Jobs had a bunch of patents, Steve Jobs made cool gadgets, thus patents are good." Correlation/causation fallacy, anyone? Of course, it's even worse than that. They talk about the natural state of innovation (competition, driving prices down) and then make the leap to the claim that this proves "the critical role IP rights play in driving technology companies to invest, compete, create jobs and drive exports," despite failing to mention how IP rights have anything whatsoever to do with any of those things.
As I told the Commerce Department, pointing to some correlation between Jobs having patents and Apple having cool products as proof that the patent system works is like standing on the deck of a sinking Titanic and saying that everything's fine because at least part of the boat is still above water.
At this point, I can only conclude that the government knows it put out a ridiculously misleading report... or the people involved are so clueless that they honestly think that correlation between companies getting patents honestly means those patents "drives" the innovation in that technology, contrary to plenty of actual studies on the impact of patents on innovation.
We should demand better of our government.