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" »

Who says the Internet is over-hyped, brain mushifying and de-humanizing?
See
DOGSTER
and if you're feeling click-happy, try
CHESS
and if you are inclined to "share a stash" (or want to know what it entails)
try
RAVELRY

Silicon Valley seminar...
FWE&E
Ustreamtv

First speaker Ross Mayfield
Edleman Survey Trust Peers

Second speaker Jeremiah Owyang, presented Online Community Best Practiceshttp://www.forrester.com/Research/Document/Excerpt/0.7211,44795,00.html

Open Social
[Neville Note: and at this point the tv disconnected....bleeeeeeeh
reconnected through webcommunityforum ... lost 40 minutes, but will be archived on FWE&E site]

Check Out these sites:

TeeBeeDee

Ning

And don't forget to see
Danah Boyd and Lucy Gray two social network gurus

Pity the clueless agent and editor fooled by Another case of Faux Memoir

Riverhead Books (Penguin USA) has offered to refund purchase price to buyers who ask
A White Valley Girl Pretends to Have Grown up in Gangland

It reminds me of a young person in a gym encounter:
Young person (to oldster): What do you do?
Oldster: I'm a novelist.
Young person: Do you write fiction or non-fiction?

check out the newly launched
http://wowowow.com
and the NYT coverage
http://www.nytimes.com/2008/03/06/fashion/06WOW.html
I did write in and comment about the silly high-heeled shoe icon as the tag for "The Women"...am I the only one of the opinion they could come up with an icon that was not emblematic of gender specific torture and bondage and many trips to the chiropodist/chiropractor?

Something akin to parental pride to open a magazine and see one's client profiled....
See page 44 Spirit (Southwest Airlines in flight magazine) March 2008 : interview with world famous designer Yves Behar
and fuseproject , his SF based design firm.

Stanford attracted a full house at the "free to the public thanks to the generous support of GOOGLE" Legal Futures conference Saturday March 8, 2008. It followed an all day "invitation" session and one could detect that more than a few participants referred to Friday and continued discussions to which most of the "public" (read: not invited to Friday) were not privy.
The weather: delicious!!!
The food: yummy (see photo post below) The seating: ergonomic The discourse: temperate as the weather

The first "Foo session" after the oft imitated, never duplicated O'Reilly Foo Camp

The Future of Professionally Created Content. OR
Critical Thinking and Learning to Triangulate from various sources of questionable veracity.
The Honorable Alex Kozinski primed the discussion by posing where will the objective (read "professional") news gathering come from now that the 60 feet on the ground in Bagdad are not paid for by the NYT. Although largely limited to the predictable gab about cost of distribution of mass consumed content (a la Lord of the Rings thanks to Cappucio of Time Warner) some panelists did go a bit deeper. Lessig tossed out Sandler's Foundation: journalism in the public interest. Microsoft Assoc. GC Tom Rubin dubbed the internet "short form creativity".
UC Berkeley prof and Google Chief economist Hal Varian quipped that folks pay to support a NY Yankee but not a NY Times Reporter and hey, that's just the market.
How can you get your news (pudding) if you don't read the paper (eat yer meat- apologies Pink Floyd)

Allusions were made to the age of NY Times readership (54) and the source of news to the YouTube generation: The Daily Show.

On truthfulness: my scribbles lead me to ascribe Cappucio with a story of news in cold war Russia, where a reader assumes everybody is lying and therefore the reader "triangulates" from a variety of "untrustworthy" sources to figure out the truth.
So is the moral of the story, don't believe everything you see on YouTube and the Daily Show?

Noteworthy:
Paul Cappucio, General Counsel of Time Warner said the music industry is doing FINE. !?!!?

Larry Lessig seemed intent on brawling with ALEX KEEN (whose business card dubs himself "the antichrist of silicon valley") on matters in Keen's book, "The Cult of the Amateur: how today's internet is killing our culture." Foo Session or not, participants deserve to be let in on what took the appearance of a domestic squabble, with most of the action offstage.

For a different take, see:
Valley Zen coverage of Professional versus Amateur Content

Panelists (L to R) : Lawrence Lessig, Andrew Keen, Hal Varian, Tom Rubin, Paul Cappuccio, and the Honorable Alex Kozinski

Or is it Center for Internet and Society? After a full day Saturday, I have a stack of cards, and a jumble of notes. Then there was the Open Source reception..followed by the sale at Tommy Bahama on Sunday....a busy weekend it was .......up next: our interview with Andrew Keen, author of the controversial "The Cult Of The Amateur: How Today's Internet is Killing Our Culture"
Followed by World of Warcraft.....who said we're not eclectic :)

FREE RICE

TEST Build Your LEGO MASTERPIECE

And the url (reachable via a link in the above article) for the Mac
download. The program's apparently from Lego itself, and v. 2.0 just
released a few days ago:

LDD

The Nose Knows!
Patented Scent!?

A light hearted article in the Boston Globe about Shame virally spread on the Internet as a creative punishment for intellectual property theft. Sadly, even though the article is aimed at new attorneys and law students, it could be a bit more definite about US history. It is a nice bit of US law to note the US Consitution was the first to provide any protection - limited monopolies- for intellectual property. I suppose a link or two would make me happy, instead of a sort of glib skimming around of celebrity IP problems, like Madonna leaving Warner.
Thanks to some Bookgroup Another Saturday afternoon on the Internet (with Access to some terrific libraries) in 2004, here is a nice arrangement of the correspondance between Jefferson and Madison. Madison penned the Constitution while Jefferson was in France.
Jefferson to Madison dated July 31, 1788 (before the Constitution was fully Ratified and during the drafting of the Bill of Rights)
"I sincerely rejoice at the acceptance of our new constitution by nine states. It is a good canvas, on which some strokes only want re-touching. What these are, I think are sufficiently manifested by the general voice from North to South, which calls for a bill of rights. It seems pretty generally understood that this should go to juries, habeas corpus, standing armies, printing, religion and monopolies. I conceive there may be difficulty in finding general modification of these suited to the habits of all the states. But if such cannot be found then it is better to establish trials by jury, the right of Habeas corpus, freedom of the press and freedom of religion in all cases, and to abolish standing armies in time of peace, and monopolies, in all cases, than not to do it in any... The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression."

Madison's response to Jefferson dated October 17, 1788 :

"With regard to monopolies they are justly classed among the greatest nuisances in government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the public to abolish the privilege at a price to be specified in the grant of it? Is there not also infinitely less danger of this abuse in our governments than in most others? Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many not in the few, the danger can not be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many."

Thomas Jefferson, Letter to Isaac McPherson, Monticello, August 13, 1813: even land requires governmental monopoly protection to secure to the land owner.

"It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society."

Markey Bill on Net Neutrality
Rep. Charles "Chip" Pickering (R-Miss.), who has argued against Net neutrality regulations in the past, is now co-sponsoring the rewritten measure, which is being called the Internet Freedom Preservation Act.

Post-Writer's Strike comments re-hash the same old tune: there's gold in the new and different; Yes thanks so much for sharing...and those who are betting on the web for media, marketing and advertising (see www.mediapost.com) tout web based "content" as the SOURCE
MEDIAPOST editor writes:

The Big Media companies need to get over their obsession with their own series. They need to put their resources and brand muscle behind unconventional development online and on air. They need to stop relying on the 90/10 or 75/25 splits with online distributors of their existing content. It’s easy, but it’s not the future. As long as the network companies can collect $10 to $50 CPMs for advertising on their familiar programming streamed online, they won’t be motivated to engage in anything more enterprising than Hulu, Veoh, Joost and their own branded sites.

Bravo’s recent acquisition of the whimsical series “Television Without Pity” is a measured step in the direction of original creation. But it’s still too safe. Surely, dozens of new viable online showcases for incubating premium Internet talent and product (such as 60Frames, Channel 101, Funny or Die) will help Big Media find new ways to place financial bets on original fare. The strike has also encouraged venture capital and other funding sources to get beh