Saturday, March 29, 2014

Vox Media editor gives us a detailed history of software patents, in the Washington Post

Timothy B. Lee, now a senior editor at Vox in Washington, has a major essay in the Washington Post giving the history of software patents, which are controlled by the USPTO and are less often granted than copyrights, which can exist intrinsically.  The link for the March 28 story is here

The Federal Circuit of the US Court of Appeals hears most trademark and patent cases and is regarded as having “expertise”. 
Originally, the Supreme Court had said that “algorithms” can’t be patented.  In the earlier days of mainframe software, IBM made companies pay to rent hardware and lent them the software for free.  Other mainframe vendors like Univac, for whom I worked in 1973-1974, did the same.  The practice became complicated in the early 1980s and other manufacturers, like Ahmdahl (in use at Chilton in Dallas, where I worked through much of the 1980s) using IBM DOS and them MVS operating systems. It would be a good debate whether this issue helped drive out IBM’s competitors from the mainframe market. 
Gradually, the idea that an algorithm could be patented if it required computer implementation and led to a tangible result of some economic importance.  I doubt the University of Connecticut could patent the algorithm it used to prove the four-color problem in topology unless it could show an economically useful application. 
The Supreme Court approved its first such patent in 1981, having to do with rubber curing.  All of this was at the beginning of the Reagan years, when overregulation and unionization had seriously undermined competitiveness and quality of American products (look at cars).  That would change.  I could tell that as a consumer myself in the 1980s.  Products got better.  The Court passed the wand to the Federal Circuit, over near Judiciary Square in DC at that time.
A patent having to do with mutual funds was approved in 1998.  Today, the controversial case is Alice Corp vs. US Bank, having to do with “settlement risk” in financial transactions.  (US Bank occupies that odd circular tower in downtown Minneapolis.)  The obvious risk to the public has become patent trolls, which seem to go after “consumers” (as small businesses) of processes that they claim weren’t licensed for use by consumers.  The concept seems odd; how can I as a consumer be pursued for using a product if I don’t sell anything with it.  The idea of copy protection of DVD’s (although more closely tracks to copyright) and the DMCA provides an analogy.  Patent holders could argue that unauthorized use by me of some product could eventually give me some sort of advantage that leads to commercial gain. 
The Computer History Museum has a debate “Resolved: Software patents encourage innovation” from 2011.

The Computer History Museum  is in Mountainview, CA. 

Thursday, March 20, 2014

Publication of my third "Do Ask, Do Tell" book does re-animate the trademark question

First, let me introduce today’s post with a tiny anecdote.  Yesterday, in a major Target store in Falls Church, VA I noticed that Olympic snowboarder Shaun White, 27, has his own brand of inexpensive athletic clothing, and even his own little trade dress symbol. (See TV blog, Jan. 26, 2014 for a review of his documentary film.)  It wondered, if there was another Shaun White somewhere who wanted to use his name commercially, would he experience a problem.  I’m luckier in that my last name is eastern European, somewhat unnaturally spelled, and uncommon (except in a few areas in the Midwest). 

I also feel a bit like a fool over this on this first day of Spring.  Yesterday (a rather funky, drizzly day in more than one way), I went to the Angelika Mosaic theater in Merrifield, VA for a movie (“The Grand Budapest Hotel”) and then drove over to Falls Church, through the traffic on Gallows Road, to the Target – completely forgetting that there is a new Target in the Merrifield complex across the street, complete with the red Target circles, suspended high in the air like a spaceship.   I’ve been in the new place once.  I’ll try it again.  But box stores all seem to be the same.  I was in the store on Route 36 in Roseville MN many times when I lived there, and even interviewed the company once in 2003 to be a debt collector.  And there’s even a row.  Over the phone, a business rejected my target card, but the card still worked yesterday.  There’s no evidence that it was compromised by the breach.
Now to get to the main course today.  Having published (through XLibris LLC) the third of my series of books that I call “Do Ask, Do Tell”,  that is “Do Ask, Do Tell: Speech Is a Fundamental Right, Being Listened to Is a Privilege” (Books blog, Feb. 27, 2014), should I try to trademark the name of the series?

You can't trademark an individual book or movie title, but you can brand a series (like "Star Wars" or "Harry Potter") or even the lead character of a series (like Tarzan, probably).  It's common for unrelated single books and movies to have the same name, although sometimes there have been fights (as with the :eee Daniels "The Butler" film).    
I don’t know yet, and the motive for doing so would be to help improve sales potential for the books and any potential derivative films.  I absolutely have no intention of behaving like a “troll” and disturbing others who use the common English, politically-related phrase (clearly related to the “don’t ask, don’t tell” policy regarding gays in the military from 1993-2011). 

In fact, the phrase would make a good name for a motion picture company that produces and/or distributes films on social and political issues.  The closest example today might be Participant Media, a name which itself makes sense.  But I can imagine getting together with some other people, and doing kickstarter for a few interrelated media projects.  That is still somewhat “down the pike” (to borrow a phrase from a young medical student).

It's noteworthy that in the movie business, companies often both produce and distribute content.  At some point, production is probably regarded as a service, where as actual film copies are goods.  It appears that the USPTO allows and expects them to register marks for each business activity, which may often be based on the same wordmark and trade dress.  However, some variations may occur in the way trade dress is displayed to consumers;  most movie companies have musical trade dress motives as well as visual but don't always use them, and sometimes vary their marks slightly in different distribution environments. 
I have not yet called a trademark attorney.  I may very well do so.  But I did look at what USPTO says about the process online, and the main link seems to be this. Both six-minute videos are important. 
Note the trap: it is possible to pay the application fee, fill out the forms wrong and blow the fee which is not refundable.  It’s critical to distinguish between “goods” (or products) and “services”. 

What then gets interesting is the “Trademark ID Manual”, link. The most applicable category for my books would seem to be 139-016, “Series of non-fiction books in the field of (indicate topic or field)”.  But the last of my series has both a “non-fiction” and a “fiction” section.  About 60% of the text is in the “non-fiction” portion.  Also, it isn’t about just one “field”.  It’s about “connecting the dots” among all fields.  I really have no clue yet as to whether this would be a problem for USPTO.  

Update: April 2, 2014

See my "Book Reviews Blog" April 1, 2014 for discussion of the new website "Doaskdotellbook3", by Xlibris, promoting the latest book in my "Do Ask, Do Tell" series.

Monday, March 03, 2014

Supreme Court hears oral arguments on patent trolls, while Senate ponders House Innovation Act and proposes transparency in demand letters

Erik Mershon has an important story in Politco, Feb. 27, 2014, “’Patent Trolls’ Draw High Court Scrutiny”, p. 6.  The article does not seem to be online yet.
Ju stices at the Supreme Court heard oral arguments Feb. 26 in “Octane Fitness v. Icon Health and Fitness” and then “Highmark Alliance v. Allcare Management Systems”.  The Court reportedly was skeptical about questioning the DC Federal Circuit on where to draw the line on requiring losers to pay in the case of seemingly frivolous litigation. The Federal Circuit, said to be a guru in patent law, has said that current law requires fee-shifting only in exceptional cases of gross abuse or bad faith.  The justices said it could be difficult for them to second guess the Federal Circuit’s judgment on what is exceptional.
The Senate Bill for “Targeting Patent Trolls” is reportedly on fast track, with the House having passed the Innovation Act, HR 3309 in December., 325-91, with a report here
There are many bills, identified on the website Patent Progress, here.  Some of them overlap.  The most important Senate bill seems to be the Patent Transparency and Improvements Act, S1720.