Tuesday, December 10, 2013

IBM tried to patent its employment offshoring methods

While a lot has been written about abusive patents as basically frivolous, author Hedrick Smith reports a particularly cynical patent application on p. 286 of his 2012 book “Who Stole the American Dream?”, which I will review soon.

The patent application in question came from IBM in 2006, a “Method for identifying Human-Resource Work Content to Outsource Offshore”.  IBM would follow with another application in 2007, “Workforce Sourcing Optimizer”. 

But the USPTO made the applications public in March 2009, creating a public relations “nightmare” for IBM, which withdrew the application.  Does IBM enter a hall of shame for this one?   

Monday, December 09, 2013

Can computer programs that implement mathematical formulas be patented? SCOTUS will revisit

The Supreme Court has announced that it will hear an appeal on a case and decide whether computer software and code can normally be patented.  This sounds like something of existential importance to many companies.  The Supreme Court Blog calls this an “analytical method implemented by a computer or by a link on the Internet, entry here. The case will be Alice Corporation Pty Ltd v. CLS Bank International.
The Washington Post Switch blog, in a piece Saturday by Timothy B. Lee, mentions older Supreme Court decisions that mathematical algorithms are not eligible for patent protection on themselves.  But circuit courts and then appeals courts have ruled that code that implements algorithms could be patented. The link is here. Lee points out that most of the patents subject to trolling have been software patents.  

This reminds me of my first job, at RCA Labs in Princeton and then Indianapolis, in 1970, when we tried to code a “dynamic programming” model for an operations research problem having to do with production lines, in FORTRAN.  Machine power on the Spectra at that time was capable of running the solution.  But the theoretical legal question could have been interesting, if that code itself could have been “patented”.  

Thursday, December 05, 2013

House passes Goodlatte's Innovation Act, 325-19

The House passed the Innovation Act today, by 325-19.  The Act would impose a “loser pays” system that would stop abusive patent lawsuits from “patent trolls” who make frivolous claims, now against retailers who sell items on their own websites.  These could be serious for authors or filmmakers who sell their own work directly on the sites, as some prefer to do in the early stages of a release.
Yet, some people say that the Act will make it harder for legitimate inventor to defend real patents.
Fox News has a stoy by Gabrielle Kroll here. Kroll says that “startups” and “small business” are divided among themselves on the Act.
Intellectual Property Asset Management (IAM) had produced a con argument on the Bob Goodlatte (R-Va) bill some time back, here.
The formal bill was HR 3309, Congress link here

Sunday, December 01, 2013

Universities sometimes make strange bedfellows to patent trolls

Timothy B. Lee has a new article in the Washington Post “Switch Blog” explaining how universities are somewhat acting as strangebedfellows of patent trolls, receiving income from old patents in which they have little or no technical involvement.  Apparently, the University of California at Berkeley received income for years on the programming technology that allows the everyday practice of embedding videos on websites and blogs.  And the University of Pennsylvania and University of Utah joined Myriad in chasing income in breast cancer detection technology after the Supreme Court had rules that human genes can’t be patented.  The Nov. 30 Post article is here.
Trolls, in copyright, patent and perhaps trademark, exist because people say they need to make “real money” support families after innovation, so “buying the right” to that income seems to make “moral sense” to them.  Proposals to weaken Section 230 on the web could further weaken the ability to preclude trolling.  

Wednesday, November 13, 2013

Ubuntu case illustrates use of a trademarked name in another for correction; also shows why "self-trolling" is not necessary to defend rights

There is another trademark case, that vaguely reminds one of the “AIDS denial case”, where a programmer named Micah Lee created a website called “fixubuntu” (link  as explained in Electonic Frontier Foundation’s article by Daniel Nazer, link), to deal with a privacy problem concerning the use of the Ubuntu mark in searches. 
The company Canonical sent Lee cease-and-desists claiming trademark infringement, when it is apparently not a violation of law (or considered dilution) to incorporate an existing mark into a domain name meant to parody, criticize or fix the produces or services of another site.
EFF points out that Canonical feared that if it were not aggressive, it could lose its mark. There are various accounts of its reasong, such as this by Mike Shuttleworth, here.  But companies are not required to monitor every use of the mark.  The right to use the mark can be lost only to “genericide” (where a mark becomes a common word) or abandonment, the article explains. 

Friday, November 01, 2013

China's commercial domain names should not cause conflict in US when "cn" is used

To follow up on a recent question about my domain name “doaskdotell” in China, it looks as though it’s an “apples and oranges” issue.
In China, the basic domain name for any commercial or generic site is “com.cn”, that is this
That means that any other functional domain name is really a subdomain name "www doaskdotell com cn".  The Chinese government actually controls these subdomains, and they apparently cannot be registered from US companies anyway.  So I don’t see any issue at all.
Try also the “.gov” link

Tuesday, October 29, 2013

"Covered Business Methods" program, proposed as a strategy to hinder patent trolls, attracts criticism; but "post-grant" review is slow

There is a lot of discussion in the news now about patent reform bills before Congress, such as whether to treat “CBM” (the “Covered Business Methods" Program”) with a separate process.
The biggest concern seems to be that non-technology companies, especially supermarkets and restaurants, are being confronted with letters from supposed patent owners demanding payment for use of some technology, such as a scanner or item or price locator.  One obvious question is why the retailer didn’t get protection for use of the technology when purchasing or leasing the item from a vendor.  Why doesn’t the business get a “license” to use the product (the way you get a software license to use a copy of Microsoft Office)?
Timothy B. Lee reports on “The Switch” blog about an interview with Tim Malino of the Business Software Alliance (BSA – a pun – link here) about Bob Goodlatte’s proposed patent legislation here.  There is some discussion of the “post grant” review specified in the America Invents Act of 2011.   Lee has an earlier article dated Oct. 28 explaining CBM on the Switch Blog, and appearing on p. A12 of the Tuesday October 29, 2013 Washington Post. 
Grocers, especially smaller ones, say that frivolous patent litigation causes higher prices for consumers, and makes smaller retail outlets less able to compete on price. 

It’s interesting to me how much money in Washington is tied up in lobbyists, who make big money at this, to put their kids through college and the like.  The rest of us like to live in our intellectually perfect worlds or fairness and objectivity, until some rule caller badgers us about how to make real money.  We seem to come back to the “it’s free” problem.  

Monday, October 21, 2013

Chinese company asks me about my domain name; I may use it for my "DADT III" book

I have a couple of items to mention with respect to my own domain name “doaskdotell.com”. 
One idea is that I may use it as a publishing imprint for my “Do Ask Do Tell III” book which I expect to submit to a publishing support service in early November.  This will be a “print on demand” and eBook effort.  I had used the imprint “High Productivity Publishing” for my first print run of my own first DADT book in 1997, replaced by “print on demand” in 2000.  I had also used that for “our Fundamental Rights” in 1998.  I had used the abbreviation of “hppub” for a domain name until 2005, when I moved everything over to “doaskdotell”.  I started using Blogger in early 2006, but have never equated the blogs to domain names.   I will consider doing that soon in connection with the “DADT III” book.
The other development was that I was contacted by email recently about the possibility that a party would use the “doaskdotell” root in China with a tld of “cn”.  As far as I know, it is acceptable for different parties to use the same root name with a different tld, especially in different countries.   I am under the impression that “doaskdotell.com” has been blocked in China (although almost nowhere else) but I’ll have to look at Urchin again and see what is going on now.   (I used to get a lot of page requests from middle eastern countries, curiously).  I thought that the blogs were also blocked in China, but again I’ll have to review Analytics to see what is going on.  The domain name would be shown in Chinese (mandarin) script, and it is likely that a literal translation to words in English would not have the same cultural or political meaning as in the United States.  It would be interesting to know what the domain subject matter will be.  Will it just “sell something”? 
From time to time, I’ve seen that other parties have sometimes created a “doaskdotell.org” as a parked domain with links for quick revenue.  I’ve never paid much attention to the practice. 

Update: Oct. 29

I answered the email today.  I checked Urchin, and I do now have a small amount a traffic each week from China.

Notice that I plan to issue a third "Do Ask, Do Tell" book by the end of 2013.

Friday, October 04, 2013

Lodsys settles with Kaspersky for "nothing" in patent troll case

Electronic Frontier Foundation, in a story by Daniel Lazer, is reporting that Lodsys has settled for “nothing” with Internet security vendor Kaspersky Labs (a popular vendor with Geek Squad) in its patent troll suit.  Lodsys had “bought” patents from Intellectual Ventures, which Tech Dirt had written about in describing lobbying efforts here. The idea that Congress would be vulnerable to lobbying by trolls, or that people make a living lobbying on K Street for patent or perhaps copyright trolling, is atrocious. 
The EFF story is here. EFF emphasizes that Lodsys would do anything to avoid trial. 
How effective will efforts at the state level to counter the trolls be?  

Friday, September 27, 2013

Playboy involved in a silly trademark fight against a parody site

It seems that now even a bulwark of free speech, Playboy, has inserted itself into trademark bullying, going after a parody site called “Party with Playboy”, link here. The site was created by a feminist group called “FORCE”, which opposes “rape culture” and probably sides with efforts to defeat sex trafficking (although that has led to issues with Section 230, as I have discussed on my main blog in the past month). 
Apparently there were issues with the service provider (May First/People Link), and EFF is reporting that the FBI erroneously seized it.
The Electronic Frontier Foundation has a story by Peter Higgins here
EFF has always reported that parody is widely protected by the First Amendment.  I guess I engaged in parody in the 1990s when I wrote a posting called “Heterosexuality is incompatible with military service” and paraphrased the Pentagon’s notorious 123 words, which sounded like a church litany.

Thursday, September 12, 2013

Patent troll battle in Nebraska gets messy, but "frivolous" demands for license fees harass small businesses

 The battle against patent trolls in Nebraska has gotten even more complicated, according to a new story today in the Washington Post by Timothy B. Lee (link).  Nebraska’s Attorney General Jon Bruning has been named in a suit by Activision TV against a Nebraska bank. But the more controversial and seemingly frivolous litigation have come from other clients of a law firm called Franey Daniels, such as MPHJ, which demands a license fee from companies using certain scanners on a network, with a rate per employee.
The law firm appears to pressure defendants into paying questionable license fees for hard-to-verify patents to prevent the expense of litigation. 
An extreme case could occur if a blogger who got ad revenue had to pay an additional license fee for equipment in his home office.
Again, roving bloggers can become “dangerous”.  Monday night, as I rode the “surface” Red Line down Connecticut Ave in Washington DC I noticed a “Brothers” sewing machine shop.  I don’t know if it’s related to the printer sitting on my floor. I'll check it out later (lazy now).  My late mother used to try desperately to get her 1940s Singer sewing machine working again to fix my underwear. 

Wikipedia attribution link for Scotts Bluff NB, which I visited in Aug. 1994, on the Saturday of my “epiphany”.  This is still the Midwest. 

Thursday, August 22, 2013

Blogger's "gaymer" trademark claim, now closed, was indeed troubling

Bloggers may not always be the good guys. Electronic Frontier Foundation is reporting that a blogger, Chris Vizzini, has “surrendered” a trademark for the term “gaymer” (or the plural gaymers), which he had tried to use against a Reddit forum by that name.  EFF has a story here

Chris gives his rather long and detailed account of the matter at his site “gaymer.org” (singular), here.    It would be hard to judge “who is right” on all this without spending a lot of time. The site says that, apart from this explanation, it is "closed" and even demonstrates such with an image. 
But normally, a common word in the English language should not be monopolized by one entity, company, or person.  Trademark has more validity when a site is a commercial operation that sells services or products, and has some sort of substantial volume with consumers, perhaps to the point of taking credit cards, setting up accounts, running e-commerce, etc.  I don’t know if this was happening with this site. It might be valid when there are clear business plans for future commercial use (for example, producing and distributing films).  To some extent, trademark is ultimately about money, Trump-style, like it or not.  

Trademark is largely about putting brands on products and services in commerce – even when “not for profit” (as with Blue Cross and Blue Shield, for example).  Copyright is about content.  Patent is about inventions – things that work, do stuff.    

Monday, August 19, 2013

"Reverse" domain name use appears OK, despite recent litigation; more on "running around" and noticing businesses with duplicate names

A recent lawsuit (Baker v. Deshong) filed against a Texas blogger by someone supposedly promoting “AIDS denialism” is predicated in part on the blogger’s legally registering a “reverse domain name” to parody the activities of the “denialist”.   I wrote a posting about this matter on the “BillBoushka” blog Friday Aug. 16.  I won’t get into the merits of this specific case here, but I did want to note that it appears, from going through some past history, that in general courts will accept the idea of a non-commercial domain (one with no advertising, for example) being named in a way to parody or draw negative public attention to an established trademark.  It looks like I have a major posting on this on April 1, 2012.
That post had noted a criticism of an anti-phishing bill, the 2008 Anti-Phishing Consumer Protection Act (CNET story ) which might have jeopardized non-commercial parody.  Apparently the 2006 Trademark Dilution law, signed rather quietly by President Bush late that year, did make exceptions for parody.
I personally am not particularly a fan of the practice.  I name my domains and blogs after some combination of myself (my own name and “pseudonym”) and a collection of issues, but never after just one particular entity.  Obviously, though, my domain name “do ask do tell” sounds like a parody of the old military “don’t ask don’t tell” policy regarding gays in the military, and indeed it was.   But it wasn’t a parody of another company name or its workmark.

I did a little “running around” Saturday, and noticed some more new restaurants in Northern Virginia with previously used names. (It’s dangerous for bloggers to “run around” with cameras.)   In Merrifield VA (near the Beltway and Lee Highway) there are two grilles, the “Trio” and “Open Road”.  There is a popular, low-cost “Trio” restaurant in the Dupont area of Washington DC, don’t know if there is any connection.  “Open Road” is also the name of a movie distribution studio that releases independent film (it’s “JOBS” was playing across Lee Highway in the new Angelika theater – that’s why I was in the area.  Well, movies are a different line of business from restaurants – except that movie theater chains are starting to open restaurants.  And does “Open Road” having anything to do with “Roadside Attractions”, another indie distributor that works with Lionsgate? Probably not.  (The trade dress and music use is totally different.)   And in the Ballston (heavily commercial) area of Arlington VA, there is a new “Ted’s Montana Grill”.  I don’t know if this has any relation to “Ted’s Bulletin” on 8thh St SE in DC, a place I sometimes eat when I’m in SE or near Capitol Hill or Nationals Park.  “Ted’s Bulletin”, a family restaurant with 50’s décor inside, made the papers when Bryce Harper of the Washington Nationals was reported as often having breakfast there before going to the Park to prep to home night games.   Maybe the Nats (a few of them do have homes in Arlington) will try the Montana Grill next/ 

Don’t worry, the Nats are on the “open road” right now (heading for Chicago to play the Cubs).  (In baseball, when you're on the road, the other team bats last and has the capacity for a walkoff win.)   And I do think one of my screenplays looks like a perfect “roadside attraction.”  

Thursday, August 15, 2013

Pets and restaurant chain names: Virginia did split into two states because of the Civil War, remember

I guess it’s “dangerous” to businesses for bloggers to travel around and write about them.

Today, on the way to Dolly Sods in West Virginia, I encountered another Stray Cat Café in Moorefield, WVa (there’s a sign for it on the nearby SR 55 superhighway), again, featuring Mexican food, like the one in Romney.  The food was quite good and inexpensive – I had Chile and a salad bar.  For a weekday, business looked pretty good.  But I was told that the one near Romney had closed for lack of business. I had reported on the Romney one on Oct. 21, 2012.  The company seems headquartered in Keyser, deeper into the mountains. 
I drove past the Route 50 Romney shopping center on the way back, but stopped at the CVS store, a long distance (two football fields, at least) from that other former restaurant.  I thought I saw Spanish words on it, but didn’t see what it really was. 
What’s this all mean?  In the past, people were aware mostly of “brands” in their own neighborhoods.  There could live plenty of “Tony’s Pizza” places, unrelated, in NYC.  In the age of personal mobility (that's been expected of people who go to nearby rural states for summer hiking and camping)and now the Internet, companies started getting more aggressive with trademark claims.  The net effect is to force would-be entrepreneurs into franchise ownership, where they have to do what they are told with their own money.  That’s not good.

Oh, as far as "running around" is concerned, there's a wonderful watering hole in Warrenton VA (not too far from Shenandoah National Park) called the Frost Diner, where there's always a lively political debate.  But how many more Frost diners are there scattered around the country to be found?  
I haven’t eaten at either the “Lost Dog” or “Stray Cat” restaurant in Arlington for a while, because there’s not enough parking in their small lot, and I don’t think you can park across the street in the Westover shopping center lot.  The Westover Market gets all the social action with its new bar and performing musicians and artists.  Even a couple of Nationals have shown up.  The Arlington restaurants, as I remember, are “American”, in a totally different style from the aforementioned places in WVa.  (The Arlington Lost Dog Café also has a “Gourmet Pizza Deli”.)
Sports teams care about their brand names, of course.  The “Nationals” are not the “Senators”, known for their losing ways in the 1950s, the original DC baseball team.  And in modern times, there is now a fight over the political correctness of the name “Washington Redskins”.

MLB and the NFL are quite jealous of their trademarks.  Just notice how fastidious commercial films are when using any teams in any film. 
While I was “on the road”,  the Nationals blew their chance for a sixth win in a row in the ninth inning, blowing a two-run lead at home. 

Also, on the day trip, past an "Eagle's Nest:" store of camping outfitters in W Va.  But that name is alos a common name for gay bars.  Different line of business, to be sure.

Sunday, August 04, 2013

States wake up to patent troll problem (especially Vermont and Nebraska, and now Minnesota)

Timothy B. Lee has a very important story in the Business Section of the Sunday Washington Post, “How to beat patent trolls?  States step up with a plan”, link here, from his new "Switch Blog". 

Two of the most active states are Nebraska and Vermont.  The general idea is to pass consumer protection laws and structure them so as to penalize companies that file frivolous lawsuits, or suits in bad faith, against secondary customers (effectively consumers) who have already paid for licenses to some primary provider.

There will be legal complications with the idea that a state law could trump over federal patent law, which is normally administered by USPTO.

But an underlying problem is this.  If a company purchases a license to use some service or product (particularly software) from a major vendor, why should it be responsible for “embedded” patents?  Why isn’t it possible for the “top vendor” to account for all embedded patents and include these imputed licenses in its total fee?  Congress needs to change the system to fix the “embed” problem which attracts trolls.  Will Schumer’s Shield Act (May 3, 2013 here) address this problem?  It’s not clear that it would. 

Lee’s article reports that a major tech company in Vermont had lost business because at least two clients of the company said they were being harassed by trolls.  Defending against invalid claims can be very expensive for small companies.  It is true that a “loser pays” system (Shield) would help.  

It strikes me that the most important practical effect of patent trolling could apply to independent software developers, who may not know about "embedded" patents "downstream", and maybe other artists such as filmmakers or, in more extreme cases, musicians or bands.

Update: Aug. 22

EFF is reporting that Minnesota has also taken action to intervene against "scanner troll", MPHJ, regarding use of scanning for email content, by small businesses, story link here

Thursday, August 01, 2013

Maybe software shouldn't be subject to conventional patent law

Timothy B. Lee, on his new “Switch” blog (“where technology and policy meet”) for The Washington Post, has a leadoff story, “Here’s why economists hate software patents,” July 31, link here

It is true that software always consists of little pieces of code – often “methods” in “object-oriented” parlance”.   Give the patent troll problem, it’s easy to imagine that a whole product or innovation could be compromised by trolled “method” or coding technique.

Employers have always been strict in asserting that they own the code written by associates or contractors in their employ, and quickly lock out people from it once they leave.  In a few cases (as in the case of a Blue Cross project in Dallas that failed in 1981, shortly after I left) they have gone to absurd lengths to safeguard content that may never go into production.  
Lee has some discussion Aug. 1 of efforts in Vermont and Nebraska to curb patent trolls.  More detailsare forthcomng. 

Monday, July 29, 2013

Celebrity's company and mommy blogger "fight" over use of word "Honest" in trademark or wordmark; USPTO actually agrees with larger company

ABC News reported, Monday on Good Morning America, about a legal feud (not yet a lawsuit) started by Jessica Alba’s “The Honest Company”, successfully fighting (though the US Trademark Office) a trademark application by author and “twitter feed” mommy bogger Bunmi Laditan, for the mark “Honest Toddler”. 

The USPTO said that the use of the common word “honest” by Bunmi could confuse consumers, but Bunmi says she doesn’t plan to sell any other products (except her book: “Honest Toddler: A Child’s Guide to Parenting”, as here on Amazon (link).   The URL for Bunmi’s feed is (website url) here.

The ABC News story is here.

I think the case is important, and that established companies or celebrities shouldn’t be able to monopolize common words in the English language. 

The other famous mommy blogger is, of course, Heather Armstrong ("dooce").  

Thursday, July 18, 2013

Patent troll defendant keeps quiet, fearing retaliation

A lawsuit by a patent troll against technology startup described in a  Washington Post Wonkblog article today “Here is what it feels like to be sued by a patent troll” sounds like one of the most abusive suits ever. The article, by Timothy B. Lee, does not name the defendant or the plaintiff, because the defendant fear retaliation. The link for the article is here

The article points out a major problem with these suits, that the details of the alleged infringement are vague until litigation starts.  This forces a defendant to spent thousands in defending a likely frivolous claim.  In this case, the complaint is so vague as to stop at mentioning a “wireless device” and “database” and software to synchronize e-commerce.  Customers using patented technology have been targeted, when they think they have already paid for everything. 

The attention paid to copyright trolls (like Righthaven) seems to have calmed down a bit, but the patent troll problem is getting “worser”.

It’s obvious that patent law is in need of reform to prevent abusive suits. 

The video above, by NerdAlert, again describes the Shield Act. 

Tuesday, July 02, 2013

Geragos will discuss patent trolls on Adam Carolla Show

Electronic Frontier Foundation has advised its followers that Mike Geragos and Julie Samuels will discuss patent trolls on the Adam Corolla Show.  There has been an issue with patent trolls and podcasting specifically, although the article doesn’t give details yet. The advisory on the show is here. 

More than ever, the patent troll (like copyright troll) problem comes partly from a very competitive economy, where a lot of stuff is “free” but some people have to find a way to make a “living”. 

Geragos is a nationally known defense attorney who often appear on CNN discussing major criminal trials.  

Monday, June 24, 2013

"Abstract patents" could invite dangerous trolls, endanger Internet ad business

Some Appeals circuits – particularly the Federal circuit in Washington DC, have upheld the concept of “abstract patents” up to a point.  These are patents of “concepts”, like clearing checks electronically or scanning documents into email content.
The Federal circuit, even after review requested by the Supreme Court, has stuck to a decision that a patent claimed by Ultramerical, which shows an online user the contents of an ad without actually linking to it, after it chased Wild Tangent.  It would sound off hand that this case could be very important to the whole Internet ad-based “free entry” business, just as the “do not track” issue is.

Timothy B. Lee has a story in the Washington Post WonkBlog, today, link here

Could this important matter wind up before the Supreme Court next term?  Hope so.  It seems like an invitation to patent trolls.   

Thursday, June 13, 2013

DNA from natural human genome cannot be patented, but a transformative process can (SCOTUS)

The Supreme Court has unanimously  that a human gene, or any natural DNA sequence from the human genome, cannot be patented.  A process to convert an RNA transcript to a complementary DNA can be patented, given Myraid Genetics a practical “monopoly”.  There are critics on Twitter today of that “exception”.
ARS Technica has the story by John Turner, here
The case would affect the ability of people born with cancer susceptibility genes (especially breast cancer, and this include men) to be screened (to be able to afford it) -- the "Angelina Jolie" situation.  

The case is Association of Molecular Patholgy v. Human Genetics, and the Supreme Court slip opinion is here.

Tuesday, June 04, 2013

Lodsys seems to take advantage of big-business-friendly patent law, USPTO policies, and court forum shopping

Electronic Frontier Foundation has a an FAQ link for app developers who receive demand letters from Lodsys, link here.

It  makes several points.  A demand letter is not a lawsuit.  Another point is that receiving a technology feature from Apple of Google doesn’t necessarily mean that the app developer may not be separately responsible for getting a license.  Apparently that issue is before a federal court in East Texas (apparently popular with plaintiff “forum-shopping”).  It may take months or years to settle, and is likely to go through an appeals cycle.  Supreme Court involvement would probably occur only after competing rulings among different circuits.  It sounds like an issue the Court should decide, unless Congress acts instead.

Apple and Google have made some moves, including an attempt by Google to shorten the process to “reexamination”. 

Update: Later June 4:

I hadn't even seen Timothy B. Lee's Wonkblog article on patent troll in the Washington Post until I got a tweet today about it from him;  He calls the trolls ambulance chasers and says their activity was facilitated by relaxing of rules for patent acquisition in the Reagan 1980s; Obama's proposed reforms are not enough; here's the article.  

Sunday, May 19, 2013

Monsanto opinion says a farmer could infringe on a patent merely by planting a seed ("At Any Price" movie)

Timothy B. Lee has a story about the Monsanto Supreme Court decision on p. G2, Business, of the May `9 Washington Post Wonkbloig. The title is “Supreme Court says you can violate a patent by planting a seed”, link here.  

The case concerns a “farmer in the dell” Vernon Bowman, who bought some  genetically engineered soybeans (designed to resist to “Roundup” pesticides) and planted them rather than eating them.
The case raises a lot of interesting questions.  Bowman argues that he didn’t “create” the seeds (“procreation” is not “creation”) , and that disinterred farms could not avoid accidental infringement, a possibility which the Court tried to mute.
The slip opinion, decided May 13, 2013 is here
The issue comes up obliquely in the film “At Any Price”, reviewed on the movies blog May 3, where Dennis Quaid  plays the suspect farmer who gets investigate by the growing company.
Lee’s piece raises the possibility that the decision makes agriculture more susceptible to patent trolls.   

Tuesday, May 07, 2013

Survey by CA law professor shows destructive impact of patent trolls on small business, employees, even customers

The “Law and Disorder” or “Civilization and Discontents” page of Ars Technica has an article by Joe Mullins reporting on a survey by Professor Colleen Chien at Santa Clara Universiry on patent trolls.  The link is here.  Be sure to read the comments.

It appears that 62% of patent suit claims are filed by “trolls” who buy patents only to litigate.

Businesses report that they have withheld products from consumers and reduced hiring as a result of trolls. 
And troll s have sometimes gone after customers.  One company was chased for $1000 per worker just for using a scanner.

It’s hard to understand how, if you buy  or lease an item, you could be liable for the misuse of a patent.  What about a (business) customer who leases a car as well as the company the leases it?

It’s clear that patent trolling disproportionately impacts small businesses and staetups, who don’t have the deep pockets to defend themselves against frivolous claims.

What if a webmaster of blogger used an app on his site, and the troll went after bloggers or websites that used the app?  Has this happened?
The troll problem does remind me of a common practice in the 1990s, when auditors from the Software Publisher’s  Association would visit a company (like where I worked) and verify whether the company had licensed all its software copies, especially those taken by employees who telecommuted from home.  In the 1990s, I actually did not allow work-related software to be installed on my own laptops partly for this reason.  .  

Saturday, May 04, 2013

California milk trade group objects to kids' science project "Got sour milk?"

Some elementary school students  (at the Potomac Elementary School in northern Virginia) developed a chemical test (rather like a pH with a litmus in Chemistry class) to detect sour milk before it can be tasted as sour. It could even be of potential commercial interest. 
They called their project “Got sour milk?” and apparently named their website domain that.
But then the California Milk Processor Board (apparently an industry trade group) sent a cease-and-desist letter, claiming trademark infringement on their own “Got milk?” slogan.  It’s not completely clear whether they objected just to the domain name (or subdomain name), or to the public use of the slogan even in Virginia.
The local paper “Potomac Patch” reported on the matter here.
It sounds highly dubious to me that such a claim could have prevailed, particularly when it was a slogan on a state-based group (not Virginia). Also, the phrase was clearly different to anyone with common sense.
The kids changed the project to “Don’t Be a Sourpuss”, here.  

There could be an interesting question whether a domain name can infringe on a trademark when it is equated to a subdomain on another site.  What about a blog name on Blogger or Wordpress?
I’ll ask Electronic Frontier Foundation about this one. Apparently the kids, their parents, or the school system didn't have the resources to fight the bullies on what sounds like a frivolous claim that would probably lose in court.  Although, one can wonder what the environment would be if the kids were selling a chemical test commercially online or in supermarkets later.  I think that the USPTO probably would have approved their original phrase as a trademark/ 
At the very least. having to change the domain name upon a "cd" threat disrupted the indexing of the site into search engines, and compromised the likelihood that others could find it.  

Friday, May 03, 2013

Two major bills in Congress to slow down patent trolls

Ars Technica (Joe Mullin) is reporting that Senator Chuck Schumer (D-NY) is introducing a second “anti-patent-troll” bill, link here  

The first bill was a “Shield Act” which would implement a “loser pays” system often recommended as part of tort reform (by libertarian-oriented reporters like John Stossel), to apply particularly when applied to plaintiffs that have bought the patents only to collect fees and not to further develop products.  . 

Schumer wants to lower the cost of patent litigation, which invites trolls to bully small companies. 
Schumer also wants a special review procedure for business methods available administratively (without the courts) from the PTO to apply to technology patents, as part of this America Invents Act. 

LXBN TV covers patent trolls and the Shield Act here.

Tuesday, April 16, 2013

When do you need professional trademark services (beyond using the Patent and Trademark Office online database)?

If you wonder, when selecting a domain name, whether you might have infringed on an existing trademark accidentally, you can, of course, go to “uspto.gov” and do a basic free-from trademark search.
Is this adequate?  My own experience in looking at the database is that it is pretty complete and reasonably up to date.
However, there are companies that do various searches (“Combined”, including state, expanded, common law and Internet, and international). 
There is a company called “Government Liaison Services” with a domain name called “trademarkinfo”, link   that offers a variety of searches – charges for the most thorough possible searches can run up into the hundreds of dollars.  Curiously, it’s in an older office building in Arlington VA, not too far from me.  I found out about it by accident.  I saw a spare copy of the magazine “Washington Lawyer” ( website url site)  on a park bench near GWU when walking back to the Metro yesterday. And the company had a print ad in the magazine, p. 9.  The ad also mentions copyright services.  
The magazine (April 2013 issue) had an interesting article about concussions in football.  The subject is interesting.  In the culture in which I grew up in the 50s, men were supposed to take risks of getting hurt to prove that they could defend and provide for women and children.  How the culture has changed.  

Monday, April 15, 2013

Supreme Court hears oral arguments on patenting DNA

Can a private company own a patent on the DNA in a human gene, a chemical sequence that appears in every human being?
Myriad Genetics of Salt Lake City thinks so, and has filed for patents for genes related to breast cancer. The rationale is that the chemical sequence is needed as a template to make artificial genes to be used in tests for susceptibility to breast cancer.  However, a counter argument is that everyone would have to go to one company for the test, and could not easily get second opinions before surgery or any radical treatment.
The Los Angeles Times story by Karen Kaplan is here
Bloomberg Law has posted the ACLU’s arguments against the idea of patenting naturally occurring biological codes.
The Supreme Court has posted the arguments held today in the case Association for Molecular Pathology v. Myriad Genetics, link here.

Tuesday, April 09, 2013

Can Internet content be "branded"?

The latest wrinkle in “branding” is the practice of companies to sponsor entire articles in major news websites (including Huffington and the Washington Post) and not just Internet ads. The print article in Business Day Monday on the New York Times is “Sponsoring Articles, not just ads; ‘Branded content’ on the web mingles with regular coverage”, link here
I get contacted by companies to review their movie-DVD’s and books (mostly small films and self-published or small press books), and I do notify users (as required by the FTC) when I received a review copy.  I wouldn’t say my content is “branded’, but I can see that I can’t favor any one source too much over the others.
Where “branded content” may help a customer is if it is technical, for example, tips on how to do some things on the Mac that seem easier in Windows, or vice versa.  

Saturday, March 16, 2013

Mark Cuban speaks out against abuses of patent law and trolls

Mark Cuban has an interesting post on “Blog Maverick” about some of his early inventions (such as one in use by Netflix now), which he never patented.  He says he is passing on his working notes from the 1990s “for anyone who might face a patent troll on these topics”, including multicasting and a “personalization system” from 1998 (the good old days) that sounds like it anticipates some of what Facebook does today.  Here is the link.

There is also a “self-service hosting” idea that could actually make sense for my planned “Do Ask Do Tell” video project.

Cuban (on “Shark Tank”, which swallowed up “Zero Hour” on ABC)  says that he thinks patent law inhibits technology innovation.  Ditto.

He has also written in the past that he suspects big media companies, screaming about “piracy”, fear low-cost competition and like gatekeepers.  But of course, his HDNet and Magnolia Pictures (a lot of it run from Texas rather than Hollywood) are a significant and established presence in the independent movie market.  It could make sense even for me. 
I send on his link to EFF to see how it reacts.  

Saturday, March 02, 2013

Laminar Research (with X-Plane) hit by patent troll lawsuit for using a small amount of "free" copy-protect code

Electronic Frontier Foundation is continuing to publish stories about patent trolls, including the story of Austin Meyer, who runs a business called Laminar Research and offers a mobile product called X-Plane Flight Simulator, link here.    

Meyer says he was at a trade show when he received a cell phone call from a lawyer in Texas offering to defending him for something like a million dollars – when he didn’t even know yet that he had been sued by Unlioc, which claimed to own the source code (for copy protection) provided to Laminar by Google. 
The EFF story would (by Julie Samuels) be here

Laminar has its own account about the lawsuit (and a petition) here The link did not take me directly to his White House Petition, which I could not find quickly.  The WH site invites me to create my own petition.

There could be situations where ordinary small businesses are sued for using technology (even though they don’t sell it) that they thought had been provided free by a service provider or maybe a hosting service.  But the danger seems to arise if the technology is embedded inside something they do sell or offer.  I wonder if this could affect certain kinds of websites, social networks, or forums.  

EFF and Laminar are reminding visitors to support the Shield Act in Congress.  The closest bill that I could find is HR 6245 from the 112th, “Saving High-Tech Innovators from Egregious Legal Disputes”, link here
A Shield Act would create a “loser pays” systems for patent suits, preventing “patent extortion”.