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).

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" »

and who at Wal Mart
failed to get the IP rights to the video UP FRONT???
Wake UP WalMart....
God is in the details....(or see the related story on WalMart selling bible action figures....)
see www.bbc.co.uk

Video embarrassment for Wal-Mart
Wal-Mart store
The footages shows Wal-Mart executives in unguarded moments

Wal-Mart, the world's largest retailer, faces embarrassment and potential lawsuits after its corporate video archive was made public.

Flagler Productions, which worked for Wal-Mart for almost 30 years, has made its footage available to lawyers, unions and media organisations.

The archive includes clips of male store managers parading in drag.

Wal-Mart dropped Flagler in 2006 and only offered the firm $500,000 for the video library.

Flagler had asked for $150m before reducing its price to $145m, according to a letter on Wal-Mart's website.

The footage captures Wal-Mart executives and employees in closed meetings and unguarded moments.

A lawyer stumbled on the archive when representing a 12-year-old boy who suffered extensive burns after a gas canister bought at Wal-Mart exploded.

She found footage of employees joking and playing skits about exploding gas cans, reports said.

Flagler says that since Wal-Mart never signed a contract for its services, the rights to the tapes still belong to the production company.

Reports say the Kansas City-based firm is now charging $250 an hour for video research.

Wal-Mart has not commented on the ownership of the archive.

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.

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."

As my blog cred grows, I get more requests to publicize and endorse...so far no perks, other than "moral happiness" (see my Feb 2008 book review column on Stumbling on Happiness)
In any event, thanks to John Tsai of UC Berkeley who asked so very nicely that I publicize the following:

IP & Entrepreneurship Symposium

March 7 & 8, 2008 ~ UC Berkeley Law School

Co-sponsored by the Berkeley Center for Law and Technology (BCLT) and the Berkeley Technology Law Journal (BTLJ).

BCLT's 12th Annual Symposium will explore the role of intellectual property -- and patent law in particular -- in promoting entrepreneurship and in providing incentives to entrepreneurs, bringing together speakers from a broad range of disciplines, including economics, law, business, and other fields. The panelists include distinguished professors, attorneys, entrepreneurs, and venture capitalists who have been actively involved in the information technology, biotechnology, pharmaceutical and green technology sectors.

At the Symposium, BCLT will introduce its project on intellectual property and entrepreneurship, launched this year with the generous support of the Ewing Marion Kauffman Foundation. We will discuss the current state of knowledge about the field of intellectual property and entrepreneurship, as well as our plans for empirical and theoretical research.

To that end, we will explore such questions as whether, when, and why entrepreneurs obtain patents, focusing on the role that patent rights play in decisions to invest in start-ups and how investors and entrepreneurs assess the scope and value of their own and other firms’ patent rights in the course of deciding which business opportunities to pursue. Furthermore, we will explore the challenges that entrepreneurs face when licensing or enforcing patents, looking at issues such as the effects of “patent trolls” on entrepreneurs and how patent thickets, standards, and the need to cross-license may present strong barriers to entry for entrepreneurs.

We plan to discuss the role patents play in an increasingly open and collaborative innovation environment, exploring the effects of patent rights on issues such as open source software, open standards, interoperability and employee mobility. Lastly, we will explore the timely question of whether entrepreneurs should care about patent reform initiatives.

Registration discounts are available for BCLT Sponsors and Entrepreneurs. Details are here:
http://www.law.berkeley.edu/bclt/entrepreneurship/registration.html

You can also contact David Grady at or call 510-642-3702.

10.5 units of MCLE credit will be available for attendees of the symposium.

Symposium Website:
http://www.law.berkeley.edu/bclt/entrepreneurship/

Register Now:
http://www.law.berkeley.edu/bclt/entrepreneurship/registration.html

About BCLT:
http://bclt.berkeley.edu

About BTLJ:
http://www.btlj.org/

Corporate theft of amateur photos is "exposed" in this rollicking Washington Post article
Stolen Web SnapShots
From theft to teen photos posted on Flickr causing suit against Virgin Mobile Australia (alleging invasion of privacy of the teen girl, whose light-hearted photo taken at a church car-wash is plastered all over advertisements without her family's consent, and failure to credit the amateur photographer, a violation of Flickr policy) to repeated posting of stolen pictures on Babble (blamed on an intern intractably oblivious to copyright law and who, according to the article, was fired because of the copyright flap).
Larry Lessig of Stanford University and founder of The Creative Commons, opines that as average folks have their own material appropriated, it will eventually results in better behaved individuals and corporations.
To understand the "Microsoft was mooned" reference, we commend you to this amusing article.
We find the solution one photo-filching victim employed gives a new slant on "self-help."

Stanford offers so much to us here in Palo Alto/Silicon Valley. If you missed this talk, see the Dec 6 (below) on facial recognition cues. Perhaps by then I'll have played to oft touted new games, and some discourse informed by experience will ensue.

***SYMBOLIC SYSTEMS FORUM***
( http://symsys.stanford.edu/ssp_static?page=forum.html)

How Science Thinks: The Science and Engineering of Science and Engineering

Prof. Jeff Shrager
Associate Professor in Symbolic Systems, CommerceNet

Thursday, Nov. 29th, 2007
4:15-5:30 pm
Building 380, Room 380C (Math Corner)
MAP: http://campus-map.stanford.edu/index.cfm?ID=01-380
(Parking in nearby lots at no charge after 4 pm)


ABSTRACT:

For over three decades cognitive scientists have been studying how science works and how scientists think. What have we learned about scientific cognition and about science as a human activity? How has this informed cognitive science more generally? How has it helped us build semi-automated discovery systems and better tools to support scientific practice and facilitate discovery? How does this all play with the Web 24.0 vision? (**) In this talk I'll use some of my own, and a lot of other people's research to lead a guided tour to some partial answers to these interesting questions.

Jeff Shrager is consulting associate professor of Symbolic Systems. His work spans human and machine learning and development, and both computational and "wet" marine biology and drug discovery. He current leads the Health Care Initiative at CommerceNet which is using Web 24.0 technology (**) to build Virtual Pharmaceutical Companies to address rare and orphan diseases.

(** If Web 1.0 is the current web, Web 2.0 the social web, Web 3.0 the semantic web, and Web 4.0 the programmable web, then Web 24.0 (1*2*3*4) is be the programmable social semantic web. I just made this term up for this talk, but it's actually rather appropriate, as you'll see!)

***

More upcoming events:

Dec. 6 SSP Forum: David C. Wilkins, Symbolic Systems Program, "Learning to Recognize Facial Emotions: Art Versus Psychology", 4:15-5:30 pm, 380-380C

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Here is my slideset from Jan 20, 2007 presentation
Executive Primer on Software Patents

See the NYT coverage of the Supreme Court justices discussing the nature of the inventive act. You can read for yourself the age old discussion of "how much creativity is enough" to qualify for the limited 20 year monopoly- a "patent right." Should the standard of what qualifies as an invention be changed? A reader wrote to me about the article, and pointed out at least one legal voice predicting business chaos from any change in the current test for what is "obvious" versus what is "invention", where "business" means "patent holders" and presumably "big business". Now Dear Readers: Should this discussion - or decision- affect those entrepreneurs or venture funded companies as they pursue the time-honored tradition of bolstering their chances of economic viability by applying for intellectual property rights? Absolutely not. Neglecting to allocate some resources for identifing company-created patent prospects is tantmount to instructing your CPA to stop seeking tax advantages because its not clear what the IRS may do. Stay bold! Keep creating; keep applying for proprietary rights.
http://www.nytimes.com/2006/11/29/business/29bizcourt.html?ex=1165899600&en=8a9d5bd559b34ac8&ei=5070&emc=eta1

Use a ring tone, take a license! Here's hoping the best outcome is an upsurge of original composition ring tones (for which no license would be required). DIY Ringtone.
The Registrar of Copyrights was pursuaded by the Recording Industry that ringtones qualify as protectible subject matter (digital phonorecord deliveries, DPD) as defined by US Code. Chapter 17, section 115.
Next step is determining a royalty rate for ringtones that are "mere excerpts" and not "derivative works."
Copyright owners asserted that the statutory license for making and distributing phonorecords of musical works is narrow in scope and does not encompass ringtones, which involve only a portion of the underlying composition and are not representative of the entire musical work.
But a portion is enough, according to the Registrar for Copyrights, MaryBeth Peters.

While sharing the point of view of the RIAA (Recording Industry Association of America) , Peters included examples of instances in which the ringtone is not subject to Section 115. Ringtones that are mere excerpts of a pre-existing sound recording fall squarely within the scope of the statutory license. However, those that contain additional material “may actually be considered original derivative works and therefore” are not subject to royalty payments.

Continue reading "Ring Ring Costs Bling Bling" »

Some Supreme Court justices seem willing to raise the bar to obtain patent coverage. A patent provides "limited monopoly" (20 years) for teaching an "invention." The "teaching" is in the form of publication of the patent itself. When a patent expires, the invention it has "taught" is in the public domain, intended to enrich society as a whole. In discussing a case before them, the Justices quip about what level of invention merits patent coverage. See an amusing account by Christopher S. Rugaber in Business Week at http://www.businessweek.com/ap/financialnews/D8LMBNH80.html.

Note: Before continuing with a series of interviews included in the original "Great American Idea Book" here is an excerpt from the authors, Bob Coleman & Deborah Neville, addressing the writers' point of view.
We've written this from our hearts as much as our heads: We believe that creativity, like freedom, lies at the core of the American experience and the American character. We also believe in free enterprise and the Constitutionally guaranteed right of people to profit from their creative endeavors.

Continue reading "The Authors Speak" »

Thanks to Colette Vogele for announcing her panel on music rights and licensing at the BANDWIDTH Conference. Colette has her finger on the pulse of the "internet and society" aspects of media technology. We hope to get her down to Beverly Hills before long!

Kudos to vloggers and authors Ryanne & Jay founders of an open source collaborative to teach videoblogging around the world. For those not able to take their Vlog workshop, their on line tutorials and books are not to be slighted.

Continue reading "Vlog as a New Media" »

Here is one "quote-oid" in series (balanced, we aim to be) of points of view about "open systems"
by James Boyle in Financial Times.

Continue reading "Open mind Open systems?" »

Grand Theft Auto - a popular "adult" video game does did not infringe a parodied "sleezy" club in Los Angeles. Plaintiff argued the game "hurt the club's reputation."
What reputation? How can you tell? Inquiring minds want to know!

Disinclined to waste anything as precious as time, I must salvage yesterday's random point & click on the internet into the sembalnce of a blog entry ....here's the path I clicked...
beginning with "parody" and "fair use" as general topics, I visited:
Google's website for public posting of video's and laughed at low brow parodies of Shakira (while listening to the entire song - something about Hips----).....{my preferred writing music is Johnny Marr and The Healers}
http://The Law and Politics of Internet Activism: The Yes Men, Peta, Rtmark, and the Phenomenon of Parody Websites by Anita Ramasastry;

coverage of the Ludlow Music versus Jib Jab case and settlement [ i commend downloading the EFF complaint and viewing pdfs of Woody Guthrie's original documents filed in the US Copyright Office....]
EFF's Fred von Lohmann writes:
"The idea of copyright law is that, after a time, every work comes back into the hands of the public, where it can be reused, recycled, made part of new creativity without having to pay a fee or call in the lawyers. That's the great thing, the real genius of copyright."(emphasis added)
moving through Kevin Heller's blawg
checking out MP3 aggregators
elbo.ws
At the end of my click fest, I still am unclear about how much of a copyrighted new release I can use for my upcoming vlog (!!!) without taking one or more licenses. However, I might go buy a Shakira tune to play during my next click fest.