When the numbers came out showing that 2011 represented yet another record year for patents granted, it was such a non-surprise that I didn't even bother mentioning it. The number of patents granted just keeps going up. And yes, there were two small dips during the past decade, but they corresponded with the rare situations in which the Supreme Court finally took an interest in some element of patent law and pushed back on the Federal Circuit (the appeals court that handles all patent issues) and the USPTO. We've discussed at length in the past, the problems of having a single appeals court that solely focuses on patent issues, because you lose the diversity of opinions (made worse at times when some of the judges on the panel have been former patent attorneys -- or, most famously, when a judge at the court was the same former patent attorney who wrote the last major update to patent law...).

However, Steve sends over a fascinating Yale Law Journal review article by Jonathan Masur that notes this problem of the Federal Circuit can be explained structurally, in that the relationship between the PTO and the Federal Circuit combined with the fact that there's no "adversarial" party contesting a patent grant, means that the patent system is effectively rigged to only expand, even if that goes against the best interests of society:

Because of the manner in which patent cases make their way from the PTO to the Federal Circuit, the PTO has a decided institutional interest in granting more patents than it should. And because of this same interaction, the Federal Circuit is engaged in an unwitting expansion of the patentability rules. The key lies with the asymmetric nature of appeals from the PTO to the Federal Circuit. When the PTO denies a patent application, the aggrieved applicant may appeal to the Federal Circuit. When the PTO grants a patent, however, there is no losing party to appeal--the victorious applicant merely walks away with its patent. That patent is unlikely ever to see the inside of a courtroom, given how few infringement lawsuits are litigated. Like most administrative agencies, the PTO wishes to avoid appeals and especially reversals. In order for the Agency to accomplish this, it need only err on the side of granting excessive numbers of patents--even invalid patents--for which there is no appeal. This desire to avoid litigation is a source of the invalid patents now being issued by the PTO in vast numbers--the patent system’s first problem.

But, as he notes, that's not the only problem. There's also the fact that since the PTO will now only reject patents that are clearly outside the law, the Federal Circuit only has opportunities to expand the granting of patents, not to reign it in:

The second problem, the ongoing expansion of the rules governing what types of inventions may be patented, stems from the PTO’s proclivity to grant any plausible patent. Because of the PTO’s efforts, the patent applications that the Agency denies will predominantly concern inventions that are unpatentable under current law. When a disappointed patent applicant appeals such an application to the Federal Circuit, that court has two options. It can reject the patent under existing law, preserving the law as it stands, or it can grant the patent under a new, more expansive understanding of what is patentable. The circuit denies most of these applications. But when the Federal Circuit eventually decides a case in favor of an applicant, it creates a new precedent that enlarges the scope of what may be patented. The process then repeats itself, with the PTO denying more boundary-pushing patent applications and the Federal Circuit being presented with further opportunities to expand the limits of patentability. The result is a natural inflationary pressure on the law, generated entirely by the types of cases that the PTO sends to the Federal Circuit.

Is there a way to fix this? Masur suggests that awareness alone might create some pressure on the Federal Circuit to "create new, more constraining precedent." He also suggests that they might "vote strategically against self-interest in certain cases" such as by voting against a patent they think is a good patent "simply in order to forestall the law's outward momentum." That seems like significant wishful thinking -- which he admits with a bit of an understatement: "This would require a focus on issues with which circuit judges do not typically concern themselves, not to mention a surprising level of tactical shrewdness from a circuit that has not previously displayed any such inclination."

He also notes how Congress and the Supreme Court have the power to curb excesses, which the Supreme Court has done just a little bit (which, as noted above, explains the brief dips in patents). Separately, the executive branch could get involved and pressure the PTO to limit its approvals.

But, in the end, the key point that set off this problem is the lack of anyone to push back on a granted patent (until such time as they're sued, in which case a different series of issues are being dealt with). So of his key suggestions, one is to open up the ability for third parties to challenge patents -- even before they're issued. And to weigh against the inflationary pressure of the current Federal Circuit, he suggests that these challenges show up in the Federal Circuit too -- so that that court now also has incentive to curb excesses, rather than just inflate them. Definitely an interesting idea.

Brand name pharmaceutical drugs are ridiculously expensive, but how much does it really cost to manufacture a drug? A potentially low-cost method is to use microorganisms -- which are plentiful -- to synthesize chemical compounds. For example, synthetic insulin is now made using genetically modified bacteria. Here are a few other examples.

• Are you depressed? You can use open-source DNA code from the Registry of Standard Biological Parts to genetically engineer yogurt bacteria to make Prozac. The process takes 4-5 days, and anyone can purchase the DNA code online. [url]
• Researchers at the Salk Institute for Biological Studies have created a strain of bacteria that can incorporate artificial amino acids into proteins at multiple sites. This could be used to engineer bacteria to produce a variety of synthetic chemicals. [url]
• Green algae could be a cheaper alternative to bacteria in the manufacture of therapeutic drugs. While bacterial cultures require lots of energy and nutrients to maintain, the algae need only sunlight and carbon dioxide in the air. [url]
• To discover more interesting science-related stuff, check out what's currently floating around the StumbleUpon universe. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

Monsanto has quite a track record of going after farmers for making use of its "patented" seeds, even in a case that involve seeds that blew onto a farm from a neighboring farm. So, it wasn't entirely surprising to see a group of organic farmers preemptively sue Monsanto last year, asking for a declaratory judgment that they did not infringe. However, the judge in the case has now dismissed the case, noting that for a declaratory judgment, there has to be a real conflict, and Monsanto keeps insisting that it won't sue these farmers. From a legal standpoint, this argument makes sense (and the declaratory judgment standard can be pretty high in some cases -- especially if no direct threat has been issued). But, it still seems unfortunate. Given Monsanto's past actions in other cases, even if it says it won't sue now, plenty of farmers are reasonably scared about what will happen down the road. But, for now, they just have to wait and hope that Monsanto seeds don't show up on their farms...

We've said it a bunch of times here in the past when describing the life cycles of tech companies: when you're young, you innovate. When you're old, you litigate. We've seen it time and time again. The big tech companies that are no longer innovating and are far removed from their former position as major players in the market, make one last grasp at relevance by breaking out their patent portfolio and beginning to sue. The latest to take this death knell step appears to be Yahoo, which is threatening to sue Facebook for patent infringement. This may be a sad end to the legacy of Yahoo -- a once innovative company that has made pretty much all the wrong moves over the last half-decade or so, that is now left to snipe at those more innovative and nimble.

In the wake of the SOPA/PIPA fight, there have been more and more efforts to use the interest in keeping the internet free and open in a more proactive manner, rather than just reactive. We've already talked about the Reddit community crowdsourcing a law, as well as our own attempt at crowdsourcing an internet innovation agenda (which is generating some interesting discussions). Within Congress, there is also the Madison platform, which was used to crowdsource feedback on Darrell Issa and Ron Wyden's OPEN Act, and suggests an interesting way that bills should be presented for feedback.

However, as many people have noted, there have been some limitations to these efforts. With the Reddit example, what comes out of a totally open system for generating laws has been a little... messy so far. It's pretty clear that the drafts coming out have significant problems and so far seem pretty disconnected from any actual policy objectives, and thus seem unlikely to actually get anywhere. That could change over time, and I'm still eager to see what happens with it, but watching the process is at times cringe-worthy, as you think about how just a little help from people who actually know how this stuff works might help speed things along. At the opposite end of the spectrum, the Madison platform, while a nice idea, still relies on someone in Congress to have a bill ready to go -- and many of the complaints about the platform (such as those seen in the article linked above) are that it really discourages participation.

Is there a middle ground approach to all of this? The folks at Public Knowledge seem to think so, as they've launched a rather interesting project called the Internet Blueprint. Unfortunately, I think the design needs a lot of work, as it's not entirely clear how it works, but the idea behind the site is that users can submit ideas for legislation. From there, people can vote. Similar to the White House's "We The People" petition site, if a proposal reaches a specific threshold of votes, Public Knowledge will then get actual legislative language written up, either by themselves or by other experts (or may explain why a certain bill can't be written up, if that's the case).

Then, once a bill is ready, the site can list out Congressional (or organizational) supporters to champion the bill. Initially, they're starting out with five specific bills that I think many people around here will appreciate:

1. Curb Abuses of Copyright Takedowns
2. Ensure Openness in International IP Negotiations
3. Permit Lawful Uses of Copyrighted Content
4. Reduce Copyright Abuse and Overreach
5. Shorten Copyright Terms

In other words, this is something of a hybrid approach. Rather than a full on crowdsourced version, like Reddit, this has an initial proposal and voting period, but then someone with experience in actually writing legislative language helps out. This is a beta launch, and I know Public Knowledge has a lot more planned, so while I think the platform is a bit limited right now, I'm excited to see what comes out of it. For example, I hope they work on cleaning up the design, but also it would be nice to allow more commentary and feedback on the bills already submitted (more like the Madison platform). If they could combine all of those features, the overall system could be really quite useful.

So, yesterday, as you may have heard, we wrote about how a totally bogus DMCA takedown notice, coming from an "anti-piracy" firm called Armovore, deleted a key Techdirt blog post about SOPA/PIPA from Google's search results. That post apparently got some attention within Google, who kicked off an expedited review and reinstated our site and a few others. Soon after that, we got a couple emails from folks at Armovore, and they also posted some comments to the site, in which they apologized, and said that it was an "early" version of the technology. To their credit, they "accept full responsibility for the mistake" and insist that while that takedown was an automated keyword-based effort, they now only do manual takedowns. They even apologized that multiple people reached out to apologize.

Of course, the apology still involved a few statements that suggested they were upset we even wrote the story, saying it was too "one-sided." The first email from the company also suggested that we shouldn't be annoyed any more since the story was added back to Google (ignoring that it wasn't for a month). They also say they haven't made any money ("aside from a single donation") and the founder said via email: "I don't feel comfortable charging anyone for an unfinished product." That's interesting, because apparently while he doesn't feel comfortable charging, he didn't seem to have much of a problem issuing a whole bunch of bogus takedowns with it, apparently without manual review, despite signing a letter that promises, under penalty of perjury, that the takedowns are accurate.

All that said, everyone makes mistakes, and even though this one was pretty egregious and involved our own content on a key post being taken out of Google for over a month, we'll accept their apology and move on. I think it would be smart and reasonable for whoever is behind Armovore to make a public donation to Public Citizen and EFF, but that's up to them to decide.

I'll also note that our situation was obviously nowhere near as bad as the various domains that have been incorrectly seized and shut down by ICE with no due process, at the request of the RIAA and the MPAA... and those sites have yet to receive any apology. And, in some cases, the sites are still being held by the government, despite a requirement that the government either give the domains back or file for forfeiture (it's done neither). Those sites deserve an apology from the RIAA, the MPAA, ICE and the DOJ and haven't received any.

Finally, what this incident really shows is just how incredibly easy it is to suppress speech under today's copyright laws. Just the fact that an automated system was able to do this should be ringing alarm bells from here to DC and back about some pretty serious problems with today's DMCA takedown process that is a shoot first, ask questions later kind of operation (as we've now seen first hand). Not only should this be a clear warning that we should not be expanding such powers via something like SOPA or PIPA, where the penalties are much, much greater, but that we should revisit the whole idea of a system that allows content to be taken completely offline prior to any chance for those falsely accused to respond. We shouldn't be expanding copyright law, we should be rolling it back to prevent abuses like this, even if they are "mistakes." A system that allows mistakes like this is a broken system.

I'm kind of wondering if Hollywood-based patent attorney and patent holder Frank Weyer is trying to turn the Republican presidential field anti-patent. Weyer, via his company EVERYMD, holds US Patent 7,644,122 concerning internet groups, which the USPTO granted in January of 2010 (but which goes back to a patent application filed in 1999, and then a continuation patent built off of that). To suggest the patent is broad is to state the extremely obvious. But, more or less, EVERYMD appears to be claiming that Facebook business accounts that offer home pages for members of a group (that also allow the ability to send messages/comments) infringes on the patent.

To make things even more insane, EVERYMD is suing Rick Santorum, Mitt Romney and Newt Gingrich as the three named defendants, and then every other Facebook business account holder as a (as yet unnamed) Doe account. Suing the three Republican Presidential candidates is clearly a publicity gambit here -- most likely an attempt to get Facebook itself to pay up. As the lawsuit makes clear, EVERYMD first went after Facebook, offering to sell it the patent. Facebook apparently wasn't interested -- and, instead, went to the USPTO requesting that it re-examine the patent. That re-exam process is not going well for EVERYMD. The USPTO issued a final rejection on all of the claims -- but EVERYMD is appealing.

It seems kind of silly to then go after Facebook's users -- and specifically three presidential candidates -- except as an attempt to try to embarrass Facebook into buying or licensing the patent before the USPTO kills it entirely. Or as an attempt to show these presidential candidates just how screwed up the patent system is today, though that seems unlikely. As Patently-O notes, Weyer has some history in using patents to go after companies for what seem like basic and obvious features.

To make this even more ridiculous, EVERYMD also claims that, back in January 2011, it opened up a "licensing program" through which anyone could buy a license to the patent at the "reduced price" of $500 per account, but no one took them up on this offer, which is no longer available. What a shock. Some company that no one has heard of suddenly puts up a page asking for $500 so you can keep running your Facebook page? Who would actually fork over money in such a situation? Even if this is not Weyer's intention, maybe this will actually wake up at least some of these Presidential candidates to how the patent system has strayed far from its intended purpose.

Okay, this is just getting ridiculous. Artist Maya Hayuk is suing RCA and Sony Music because a mural she painted -- and which appears to be in a public area -- appears (rather briefly) in the background of a music video by Elle Varner. You can see the video below: The colorful mural really isn't in the video that long and is hardly a central part of the video. It's just part of the background (and doesn't even show up until pretty far in). But Hayuk claims that using it in such a video without a license is infringement. We've seen plenty of other attempts to claim copyright on public artwork and it strikes us as equally ridiculous each time. If you're putting your artwork in public, it should be non-infringing if someone else happens to capture it in a photograph or video.

There's a separate factoid in the case, which is that Hayuk apparently created the original mural for a different music video, starring Rye Rye and M.I.A., which you can see below: So part of this might just be about "competing" videos both using the same mural (briefly in both cases). Though, honestly, the two videos are extremely different, and unless you're really spending much time paying attention to the walls in the background, you probably wouldn't even notice that this is the same wall. Of course, it's always entertaining when a major label gets sued for copyright infringement, but this case really just highlights how ridiculous copyright law has become these days that merely dancing in front of a wall can be considered copyright infringement. It's entirely possible that this will be found to be infringement, but any system that leads to such a conclusion has serious problems. The mural is public, and having people film a music video there is something that happens. Don't want it? Paint over the mural or put it on private property.

A couple of weeks ago, Techdirt reported on UK politicians calling for ISPs to "take down" terrorist content. Now it seems that the idea has not only spread to other European countries, but even acquired a cheesy name: "the Clean IT Project".

The internet plays a central role and is of great strategic importance for terrorists and extremist networks. These networks know that propaganda is a critical tool for generating funding, recruits and support for their cause within these communities. Historically they have used a variety of media channels, such as television, radio and publishing, in order to communicate their views. During the past decade of huge global growth of the internet, Al Qaida influenced extremists for example, have made increasing use of this medium. The internet and its fast and anonymous means can contribute to individual radicalization processes. There are concerns about the illegal use of the internet for terrorist purposes and the misuse of legal / neutral websites. The question is if we can limit the use of internet for terrorist purposes, without affecting our online freedom. Therefore this project is based on a public-private dialogue.

Those last two sentences are particularly ominous. First, because they show no awareness that any attempt to "clean" the Internet inevitably affects everyone else's online freedom. Given that there are no hard and fast rules about what is terrorism, the past teaches us that there is always collateral damage in the form of over-reaction -- not least because people understandably err on the side of caution in this area.

The other reason we ought to fear this new initiative is that it is based on getting the private sector to act as online police, using a "non-legislative" approach:

The main objective of this project is to develop a non-legislative 'framework' that consists of general principles and best practices. The general principles will be developed through a bottom up process where the private sector will be in the lead. Through a series of workshops and conferences, the private and public sector will define their problems and try to draw up principles. These principles can be used as a guideline or gentlemen’s agreement, and can be adopted by many partners. They will describe responsibilities and concrete steps public and private partners can take to counter the illegal use of Internet.

This is of a piece with similar attempts to get ISPs to spy on their users, or search engines to censor their results: since everything is done through a non-legislative 'framework', there is no oversight and no formalized legal recourse. It's part of a general move to control the Internet through extra-judicial means, thus avoiding all the risks of a democratic debate or the need to produce any evidence that the measures are effective and proportionate. Significantly, it's also one of ACTA's key (bad) ideas.

Even though the project is being sold as a voluntary "gentlemen’s agreement", the reality is that lurking in the background is the usual implicit threat:

The covenant, the principles and the practices should be non-legislative because they will be adopted on a voluntary basis with support from the industry. It should also be possible to implement them quickly in any European Member State, or even worldwide. Nevertheless, it is possible that one of the results will be a call for better regulation by governments.

That is, if industry doesn't adopt the principles and practices -- and implement them "quickly", too -- it will be forced to do so through legislation.

It's not even clear that "limiting terrorist use of internet" is the best way to fight terrorism. There is an argument that it would be better for as much terrorist activity as possible to take place where security agencies can keep it under close surveillance. Shutting down the more obvious sites and means of communication will simply drive terrorists deeper underground, and make it harder to monitor and thus counter them.

So once more, we have the worst of both worlds: while the rights of the general public are diminished further in the name of "combatting terrorism", the actual fight will be made more difficult.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

We recently wrote about the excellent comic from Matthew Inman's The Oatmeal to highlight how companies turn would-be buyers into infringers by not making the content available. Here's a snippet. In response, some folks sent over columnist Andy Ihnatko's response, in which he suggests the comic is actually representative of the sense of entitlement that people feel towards such content. Ihnatko's writeup is slightly amusing as he tries to mock those consumers for actually having an opinion on how they consume content and concludes with this basic statement:

The world does not OWE you Season 1 of “Game Of Thrones” in the form you want it at the moment you want it at the price you want to pay for it. If it’s not available under 100% your terms, you have the free-and-clear option of not having it.

I sometimes wonder if this simple, grown-up fact gets ignored during all of these discussions about digital distribution.

I was going to write a rather long response to why this is kinda silly, but Marco Arment did a better job than I ever would in explaining the difference between being "right" and being "pragmatic." You really should read the whole thing, because it involves a rather detailed example involving the physical layout of a restroom. I'm going to skip over that part and highlight the summary point, but it's worth reading the full thing:

We often try to fight problems by yelling at them instead of accepting the reality of what people do, from controversial national legislation to passive-aggressive office signs. Such efforts usually fail, often with a lot of collateral damage, much like Prohibition and the ongoing “war” on “drugs”....

[....]

Relying solely on yelling about what’s right isn’t a pragmatic approach for the media industry to take. And it’s not working. It’s unrealistic and naive to expect everyone to do the “right” thing when the alternative is so much easier, faster, cheaper, and better for so many of them.

This point could be seen as the central theme of many of the 40,000 plus posts that have been made on this blog: dealing with reality is always going to be a more effective way to go about things than taking some "moral" stand on how things "should" be. And, if you can deal with the realities and it actually solves the whole moral "I'm right!" part at the same time, what good is it to not deal with realities?

Taking the point even further, there's a simple fact of today's world, which is that consumers have power. Ihnatko's entire point seems to assume that this consumer power is "entitlement." I tend to think of it as consumers making their will known -- and that tends to lead to better products that should make everyone better off. What Ihnatko ignores is that a market is not determined by just one side. It's the interplay between buyers and sellers, and if the buyers aren't happy, they express that to the sellers in certain ways -- and infringement is one of those ways. It's a market signalling method. I'd argue that it's just as much an "entitlement" mentality by the "sellers" to pretend that only they get to decide what the consumer should be able to get, without listening to what the consumer wants.

I've been meaning to post this story for a little while, but am finally getting around to it. On a whim, a woman decided to send off some Freedom of Information Act requests to various government agencies to see if they had any information about her. She said she had basically forgotten about the whole thing... until, months later, the FBI sent her a giant package... containing a 436-page report on her that she had no idea existed. What she discovered was that, about a decade ago, the FBI had spent five days following her and some of her friends around, all because they were involved in planning and organizing a small local protest (she doesn't explain what the protest was about, other than to say it really wasn't that big of a deal). Either way, the FBI spent five days (a few days before, the day of and the day after the protest) following her and her friends and recording all of their activities. The actual report is incredibly mundane: At times, the file details seem particularly ridiculous: As she says, "As you can see, I pose a clear and present danger to society. I pick up other people's trash and put it in the proper bins." The entire file is apparently similarly pointless information about her activities. She sounds mildly embarrassed that she didn't spot the fact that she was being followed, but if you're not expecting that you're being followed -- and being followed by pros -- it's unlikely that you'd notice. The thing that's really amazing is that it makes you wonder just how much time and resources are being wasted here. I recognize that it's important for law enforcement to be on top of various activities, but it's hard not to wonder if this isn't overkill. She also notes that, for all of the time and effort put into following her around, they got a lot of the rather basic facts wrong:

I am repeatedly identified as a member of a different, more mainstream liberal activist group which I was not only not a part of, but actually fought with on countless occasions. To somehow not know that I detested this group of people was a colossal failure of intelligence-gathering. Hopefully the FBI has not gotten any better at figuring out who is a part of what, and that this has worked to the detriment of their surveillance of other activists. I am also repeatedly identified as being a part of campaigns that I was never involved with, or didn't even know about, including protests in other cities. Maybe the FBI assumes every protester-type attends all other activist meetings and protests, like we're just one big faceless monolith. "Oh, hey, you're into this topic? Well, then, you're probably into this topic, right? You're all pinkos to us."

In taking a general survey of all area activists, the files keep trying to draw non-existant connections between the most mainstream groups/people and the most radical, as though one was a front for the other. There are a few flyers from local events that have nothing to do with our campaign, including one posted to advertise a lefty discussion group at the university library. The FBI mentions that activists may be planning "direct action" at their meetings, which the document's author clarifies means "illegal acts." "Direct action" was then, and I'd say now, a term used to talk about civil disobedience and intentional arrests. While such things are illegal actions, the tone and context in these FBI files makes it sound like protesters got together and planned how to fly airplanes into buildings or something.

When you read stuff like this, and then think back to the various cases we've seen of the FBI manufacturing their own terrorist plots, it really makes you wonder if the money we're spending on law enforcement for these kinds of things is money well spent... or if the FBI really just has way too much time (and money) on their hands.

An interesting point made by Carl Franzen, looking at the continued growth of Kickstarter raising funds for content creators, is that the site is expected to surpass the amount of funding provided by the National Endowment for the Arts this year. They're expecting to break $150 million (this past year it was closer to $80 million), while the NEA has $146 million to give out. Obviously, there are all sorts of differences between the two, but as a milestone, it seems interesting and noteworthy. Also, of course, $150 million may pale in comparison to what some of the big entertainment companies spend, but watch the trend lines and remember your innovator's dilemma lessons, and you'll begin to recognize that new opportunities and new business models have tremendous potential. The old ones? They're losing steam...

A couple weeks ago, we pointed to an absolutely ridiculous "Africa IP Forum" that was being organized by WIPO and the US Department of Commerce, where it appeared the entire event was around forcing extreme IP enforcement on Africa, despite plenty of evidence that developing nations, such as most of those in Africa, are hurt by such enforcement. The whole schedule was one-sided with speakers who mainly supported extreme enforcement over looking for the most reasonable overall solutions for different economies. After widespread outcry concerning this rather non-subtle attempt to export US-style copyright maximalism to the African continent, the US Commerce Department has announced that the event has been postponed.

The African Intellectual Property Forum, originally slated for April 3-5, 2012 in Cape Town, will be rescheduled. Organizers are committed to ensuring that all stakeholders – in government, private business, the arts and the development community – are represented and engaged in the conference organization and agenda.

The organizers apparently also sent emails to those who had registered, apologizing to people who had already made travel arrangements.

While it's nice that the Commerce Department has recognized that the original program was no good and that all stakeholders should be heard from -- it would have been much nicer and a hell of a lot more convincing if they had done so originally, rather than just a few weeks before the scheduled event when people started protesting...