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.