Idea Lawyer Blog

Patenting and Open Source Platform

Silicon Valley nonprofit Myelin Repair Foundation (MRF) provides an early glimpse of next-generation institutional innovation (BusinessWeek.com, 11/15/07) as it emerges on the edge of medical research and drug discovery. As its name suggests, MRF has a very specific target—to mobilize and focus research on a particular biological process, myelin repair.
Open Source Platform for Top Level Health Research

Patenting worked better in open-source platform:

A key institutional innovation of the MRF was to develop a way for participants to file for patent protection more rapidly while still sharing their discoveries traditionally via publication in peer-reviewed journals. Without adequate patent protection, the intellectual property generated from MRF's research would have little appeal to biopharmaceutical companies that will have to invest significant amounts of their own money to commercialize products. At one level, the MRF has created an open-source platform engaging peers from diverse institutions while finding a robust way to protect intellectual property.

And, on the more general topic of innovation:

Innovation is needed within companies, to be sure. But today's most powerful and exciting forms of innovation are taking place across company boundaries. Think of them as institutional innovations—the changes companies make to redefine roles and relationships across independent entities to deliver more value to the marketplace and to society. Institutional innovation transcends what an individual inventor or even an innovative company can do. Innovation is a decidedly social process encompassing diverse individuals, corporations, communities, networks, and regions.

Rather than taking the four walls of the enterprise as a given, today's most promising institutional innovations seek better ways of connecting talent wherever it resides and building relationships that foster and focus learning.

On a trip to Mexico, Larry Proctor bags a bean, then patents it, then asserts Mexican Farmers cannot import this bean - indiginous to Mexico- to the US. After more than 10 years, and unrecompensed losses to farmers, the USPTO succumbed to UN pressure and struck down the bean patent. The question: will Larry Proctor appeal?

Mexican Yellow Bean Patent Struck Down

ETC Group
News Release
29 April 2008
www.etcgroup.org

Hollow Victory: Enola Bean Patent Smashed At Last (Maybe)

The infamous Enola bean patent, first denounced by ETC Group eight years ago as a textbook case of biopiracy, was struck down yesterday (April 29, 2008) by the U.S. Patent & Trademark Office in Washington, D.C. One of the most controversial plant patents in history, the effort to defeat it was unprecedented because it involved the United Nations and international plant breeding institutes.

“Many people are calling the PTO’s decision to reject the Enola bean patent a victory, but we’re inclined to call it a travesty,” said Hope Shand of ETC Group. “In essence, the U.S. patent system allowed the owner of a flagrantly unjust patent to legally monopolize markets and destroy competition – for close to half the 20-year patent term. And even now the patent owner could still appeal through the federal court system!” said Shand.

“Worse still, Mexican and U.S. farmers who suffered damages as a result of this unjust monopoly will never be compensated for their losses. Patent law has no mechanism to compensate farmers and indigenous peoples who are victimized by predatory patent abuses,” adds Silvia Ribeiro of ETC Group’s office in Mexico City.

According to ETC Group, the eight-year patent challenge is, above all, an indictment of the patent system’s ability to “correct” patent abuses. The request for re-examination of the patent was filed in December 2000. The U.S. Patent & Trademark Office declared its preliminary rejection of the patent three years later. Using a series of bureaucratic delays and diversions, the patent owner was allowed to legally extend his exclusive monopoly on a Mexican bean variety for over 8 years.

“We’ve seen protracted patent battles before. It was just last year that the European Patent Office struck down Monsanto’s species-wide patent on all genetically modified soybeans – but it took an appeal and 13 years,” said Kathy Jo Wetter of ETC Group. “The patent system is broken on both sides of the Atlantic,” she adds.

Background
The Enola bean patent holds a special place in the “biopiracy hall of shame” because the patented yellow bean was proven to be genetically identical to an existing Mexican bean variety[1]. That’s not surprising, because the patent owner, Larry Proctor, first got his hands on the yellow bean when he bought a bag of beans in Mexico. After securing his monopoly patent, Proctor accused Mexican farmers of infringing the patent (U.S. patent number 5,894,079) by selling yellow beans in the U.S. As a result, shipments of yellow beans from Mexico were stopped at the U.S./Mexican border, and Mexican farmers lost lucrative markets. In 2001 Proctor filed lawsuits against 16 small bean seed companies and farmers in the U.S., again charging patent infringement.

Intergovernmental Patent Challenge
In January 2000 ETC Group (then as RAFI) denounced the Enola bean patent as “Mexican bean biopiracy” and demanded that the patent be legally challenged and revoked. ETC Group requested that the Food and Agriculture Organization and the Consultative Group on International Agricultural Research (CGIAR) investigate the patent as a violation of the CGIAR’s 1994 Trust agreement that obliges them to keep designated crop germplasm in the public domain and off-limits to intellectual property claims.

Agreeing with ETC Group, the Colombia-based International Center for Tropical Agriculture (CIAT, a CGIAR center), with support from FAO, filed an official challenge of the predatory Enola bean patent in Washington, D.C. “We commend CIAT and FAO for taking this action, and for sticking with the 8-year patent challenge,” said Pat Mooney of ETC Group. “Joachim Voss, CIAT’s former director general, deserves special recognition for leading the patent challenge,” notes Mooney.

ETC Group warns that egregious monopoly patent claims on seeds, genes and traits are by no means a thing of the past. In the midst of a deepening world food crisis, with climate chaos as the backdrop – predatory patenting is a greater threat than ever. Please stay tuned.

The Enola Bean Patent Reexamination Saga

13 April 1999: Larry Proctor wins US Patent No. 5,894,079, “field bean cultivar named enola”
15 January 2000: ETC Group denounces the enola bean patent as technically invalid and morally unacceptable http://www.etcgroup.org/article.asp?newsid=31
20 December 2000: Request for Reexamination of US patent 5,894,079 (issued 13 April 1999) filed by CIAT http://www.etcgroup.org/article.asp?newsid=96
30 November 2001: Proctor sues 16 small bean seed companies and farmers in Colorado for infringing his patent http://www.etcgroup.org/article.asp?newsid=282
02 December 2003: USPTO’s reexamination results in “Non Final” Rejection of Patent
02 June 2004: Proctor submits 400+ page amendment to “Non Final” Rejection
14 April 2005: USPTO issues “Final Rejection” of Patent
14 October 2005: Proctor submits Request for Continued Examination of Patent
21 December 2005: and issues another “Final Rejection” of Patent http://www.etcgroup.org/en/materials/publications.html?pub_id=41
29 April 2008: USPTO’s Board of Patent Appeals affirms the patent examiner’s decision regarding the rejection of all standing claims in the Patent

For more information:
Hope Shand and Kathy Jo Wetter, ETC Group (USA) hope@etcgroup.org kjo@etcgroup.org
+1 919 960-5767 (office)
Silvia Ribeiro, ETC Group (Mexico) silvia@etcgroup.org
+52 5555 6326 64
Pat Mooney, ETC Group (Ottawa, Canada) etc@etcgroup.org
+1 613 241-2267

[1] L. Pallottini, J. Kami, G. Barcaccia, P. Gepts, The Genetic Identity of a Patented Yellow Bean, a paper presented at the American Society of Agronomy Annual Meeting, Denver, November 2-5, 2003. The official results were published in the May/June 2004 issue of Crop Science, Pallottini et al., “The Genetic Anatomy of a Patented Yellow Bean,” Crop Science, 44:968–977 (2004).

Want to Get Paid? Who doesn't!
Simple Steps to Setting Up A Publishing Company (so you can get paid!!!)

First: Affiliate with ASCAP or BMI
Application forms give you 3 choices of name, and it is vital to get a name that ensures you are properly paid (and not confusingly similar to other companies). It can take weeks for name approval, so start early.
If you are also a songwriter, and have not yet affiliated, then proceed to affiliate with one of the two societies, and also affiliate your publishing company with that society. At some point, if your company publishes other people’s songs you will have two companies, one for ASCAP and one for BMI.

Second: File in your state whatever is the equivalent of California's "fictitious business -name statement" (if you are not an LLC or corporation using the name of corporation or LLC as the name of publishing company)

Third: register copyright of songs in US Copyright Office; if already registered, then file transfer of copyrights to publisher name.

Fourth: Register all songs with the society (the one you’ve affiliate with in step first). Only need to register as writer or publisher, not both. Forms provided by society, and are self-explanatory.

Congratulations: you now have a music publishing company!
What can you do now? Issue licenses to record companies and other users..

Caveat: unless you have an impending EXPLOITATION (i.e. record coming out or some other exploitation such as a film or TV show using your songs), the societies will not permit you to affiliate.

SO next column: GETTING EXPLOITED !!!!

In his 1986 comedy flick, Back To School, Rodney Dangerfield plays a tough, up-from-the streets entrepreneur who winds up in the classroom of a snooty, hopelessly academic business professor. The professor blathers on about the theoretical costs of a business start-up until Rodney interrupts to tell him he’s forgotten a few things—like paying off the building inspectors and kick backs to corrupt union officials.

Humor thus makes a sharp point about the difference between academic theory and the realities of business life. For idea people thinking about turning ideas into profitable realities, it can indeed be challenging to get the right blend of practical and academic training.

If your goal is to start a traditional sort of business—a bakery or a bookstore—many trade associations run courses that cover the practical in a classroom-like setting. Later this month, for example, the American Bookseller Association will be holding a multi-day training session for aspiring bookstore owners at its annual BookExpo America in Los Angeles. (Los Angeles Convention Center, May 29th – June 1st).

Quality practical training is available from generally from trade associations. But what if your "Great Idea" is for a less traditional business—the kind of business where you’re inventing most of it as you go along?

A recent New York Times article Classroom as Incubator profiled a creative approach. Business schools blend the academic and the practical by sending their students out to work with entrepreneurs early in their (meaning both the students,' and the entrepreneurs’) careers—and the results look promising.
One example: three years ago a New Jersey chef with a great sauce recipe soon found himself with 35 students from a local college working on everything from marketing to R & D. Today, his company's thriving, with its sauces sold in some 400 stores. Not bad for an "academic" approach. . The students get “real world” training—and the entrepreneurs get the help of a lot of bright young students who are willing to tackle all the problems.

If you’re turning your idea into a business, hooking up with one of these new-style business school programs might be a way to obtain smart, energetic contributors without breaking your budget.

ASCAP is thrilled estimating as much as $100 million in payments covering 7 years period ending in 2009; Digital Media Assoc., repping internet services, declines comment.

U.S. District Judge William Conner's 153-page decision didn't specify the total amount owed to the ASCAP members, but he provided an example on how the formula would apply to the music royalties owed by AOL and Yahoo for 2006. Under the formula endorsed by Conner, AOL owed 2006 fees of $5.95 million and Yahoo owed $6.76 million.

Read the whole story all over the net, including
HERE

Malware is an ugly reality in cyberspace. Hackers ceaselessly barrage us with incendiary code calculated to thwart break or pervert our software.
A new threat: violate our copyright, and we'rr report you to..to..to US!!!

http://www.mercurynews.com/breakingnews/ci_9111031

Continue reading "Copyright for Code Thugs" »