CA to Donate to the Patent Commons, Signs IBM Cross-Licensing Agreement

Computer Associates (CA) announces:

Computer Associates . . . today pledged open access to key innovations covered by 14 of its U.S. patents — and counterparts of these patents issued in other countries — for individuals and groups working on open source software. CA also announced it has reached a long-term, patent cross license agreement with IBM, creating an exchange of license rights and releases between the companies.

In making its patent pledge to the open source community, CA is joining IBM in encouraging other companies to create an industry-wide "patent commons" in which patents are pledged royalty-free to further innovation in areas of broad interest to developers and users of information technology.

Prior posts:
    June 3, 2005 - Red Hat Announces Software Patent Commons.
    Apr. 12, 2005 - IBM's Shifting Patent Policies.
    Feb. 26, 2005 - IBM Donates Open Source Projects to SourceForge.

Banning Criminals from the Internet

Techdirt takes an interesting look at banning computer criminals from the Internet.

Filing Provisional Patent Applications With or Without Claims

The IP Counsel Blog discusses whether provisional patent applications should include claims:

In Claims in Provisionals, Russ [Krajec] advocates that provisional patent applications should be filed without claims. Russ' reasoning is that provisional applications filed with claims can only have a negative effect in view of prosecution history estoppel. . . .

I feel that it is prudent to include the broadest claims in the original application. If the validity of the patent is ever attacked, there is a record of the broadest claim in the application with the earliest filing date or priority date. At the risk of establishing a record for prosecution history estoppel, it is necessary to preserve a record for claim interpretation and to satisfy written description requirements.

Check out the rest.

Is Wal-Mart a Copyfighter?

Find out from Donna Wentworth.

Symbol, Intermec Settle RFID Patent Dispute

Symbol announces:

Symbol Technologies . . . and Intermec Technologies . . . have reached an agreement that settles their RFID (radio frequency identification) intellectual property dispute. In addition, all other pending and anticipated legal actions have been placed on hold while the two companies attempt to resolve their remaining intellectual property disputes. . . .

Under terms of this agreement between the two companies, Symbol Technologies has joined Intermec's Rapid Start RFID intellectual property licensing program. The Rapid Start Licensing Program provides Symbol access to a number of Intermec RFID patent portfolios, including RFID tags and fixed and portable readers. Symbol also is providing Intermec access to Symbol's RFID intellectual property by exercising the cross-licensing provisions of the Rapid Start program.

More: TechWorld.

Prior posts:
    Apr. 28, 2005 - Symbol Brings New Patent Suit Against Intermec Over Bar Code Technology.
    Mar. 24, 2005 - Intermec Responds and Files Counterclaim in Patent Infringement Suit Against Symbol Technologies.
    Mar. 12, 2005 - Symbol Filed Patent Infringement Suit Against Intermec Relating to 802.11 (or Wi-Fi) Wireless Communication Standard Technologies.

Supreme Court IP Cases for the October 2005 Term

provided by Patently-O.

Dennis provides a list of the cases and the primary issue in each case, as well as a link to a paper by attorney Hal Wegner going into a little more detail on each case.

Microsoft Patents Kazaa Playlist

according to Techdirt:

How long until a greedy lawyer connects the two [Microsoft and Kazaa] and suggests that Microsoft is now "inducing" copyright infringement by encouraging people to use Kazaa with this patent?

Kazaa Ruling to Have Little Effect on Filesharing

says Patrick Gray and Evan Hansen in a Wired News commentary:

Now, litigation is poised to put Kazaa out of business, following a ruling here Monday that closely mirrors the U.S. case that effectively closed the books on Napster.

Once again, a court stepped in to sharply limit a popular P2P network. And, once again, it appears that the demise of a file-swapping leader will have negligible impact on the file-trading phenomenon as a whole.

Prior post:
    Sept. 5, 2005 - Kazaa Loses in Australian File-Sharing Case.

Microsoft Sues European Commission over IP Secrets

Reuters reports:

Microsoft has filed a new lawsuit against the European Commission, the latest move in its long-running battle against antitrust sanctions imposed by the Commission for abuse of its dominant Windows software.

The lawsuit before the Court of First Instance in Luxembourg is to clear up whether some Microsoft software protocols -- or computer rules of the road -- should be made public or be kept secret as intellectual property.

Prior posts:
    June 30, 2005 - What Is Wrong with EU Antitrust Policy?.
    June 6, 2005 - EU to Suspend Part of Ruling Against Microsoft.
    June 6, 2005 - European Commission Praises Microsoft Antitrust Proposal.

Lessig the Whiny IP Nihilist?

The IP Blog takes issue with Larry Lessig's recent article in Wired:

"Innovation will continue to suffer"? Larry? In what countries is innovation suffering? IN THOSE WITH WEAK OR NONEXISTENT IP PROTECTION! . . .

Those of you who have apparently decided that all original ideas are over, and that the only thing left is to copy, paste, and remix ARE WRONG. It's actually a very negative view of the future, if you think about it. Actually, it's nihilism, now that I think of it.

Larry Lessig, the IP Nihilist. . . .

I have news for you: The inventor or creator has an inherent right to own that which he or she creates. It's not just in the Constitution--it's in human nature, and you can't change it. Now, the desire to take what you want from others without compensation is ALSO in human nature--but it's the dark side of human nature. Whose side do YOU want to be on?

Check out the rest.

Prior posts:
    Aug. 31, 2005 - Lessig: The Grokster Pundits Are Idiots.
    Aug. 31, 2005 - Lessig on the Public Domain.
    June 30, 2005 - Grokster: The Day Entrepreneurship Died.

Free Software Foundation to Punish Enforcers of Software Patents

Reuters reports:

The free software foundation said on Tuesday it would start adapting rules for development and use of free software by including penalties against those who patent software or use anti-piracy technology. . . .

The idea is that if someone uses software patents against free software, that company or person loses the right to distribute that particular program and use it in their product.

More: Free Software Foundation.

CAN-SPAM Loopholes

getting noticed by Techdirt.

Prior posts:
    Aug. 26, 2005 - First Conviction in US for Obscene Spam E-mails.
    Apr. 24, 2005 - CAN-SPAM Suit Filed Against Kraft Foods.
    Feb. 15, 2005 - Is the US CAN-SPAM Act Working?.

Samsung, Motorola Sign Patent Licensing Agreement

Korea Herald reports:

Samsung Electronics Co., the world's third-largest handset maker, said yesterday it has signed an agreement with Motorola Inc. of the United States to share each other's patents on wireless communication technologies.

Unfortunately, no details.

Samsung and Motorola had signed a preliminary agreement back in July.

Prior posts:
    Aug. 25, 2005 - Patent Infringement Litigation in the Wireless Industry.
    Apr. 28, 2005 - Report: Wireless 3G Patent Licensing Fees Could Stifle Mobile Phone Industry.

Interview with Mom in RIAA File-Sharing Suit

P2PNet.net interviews Patricia Santangelo, a mother being sued by the RIAA for alleged file-sharing on a computer at her address.

Hat tip: Donna Wentworth.

Prior posts:
    Aug. 29, 2005 - RIAA v. Soccer Mom - The Transcript.
    Aug. 22, 2005 - Soccer Mom Takes on Record Companies in P2P File-Sharing Case.

Kazaa Loses in Australian File-Sharing Case

First, the decision [rtf].

Bloomberg reports:

An Australian court ruled today that Internet file-sharing operator Kazaa infringed the country's copyright laws and it ordered the company to install filters to prevent future violations.

After an 18-month trial, the Federal Court of Australia ruled that Kazaa violated Australian copyright law by authorizing users to infringe music companies' copyright in recordings.

Financial Times writes:

The ruling ordered Sharman Networks to filter out copyrighted material from its Kazaa Media Desktop software within months or face closure. . . .

In his judgement Murray Wilcox, Australian federal court judge, said: "Both the user who makes the file available and the user who downloads a copy infringes the owner's copyright."

Silicon Valley Media Law Blog summarizes the key facts that the court relied on to support its conclusion.

[Content removed on Sept. 8, 20005.]

In a post well worth a full read, Weatherall's Law compares Kazaa to Grokster:

In Grokster, the US Supreme Court had to decide whether the 9th Circuit was right to uphold a trial judge's decision granting summary judgment to Grokster and other P2P software providers. . . .

Unlike Grokster, however, Kazaa is a judgment after a full trial. [Kazaa] is a final judgment on liability - subject to any appeal (to the Full Federal Court, or, following that, to the High Court).

And finally, Michael Geist weighs in with the Canadian perspective:

From a Canadian perspective, the case highlights a growing divergence between Canadian and Australian copyright law such that the outcome of a similar case in Canada could potentially be much different . . . .

[U]nder Canadian law, Kazaa would be entitled to presume that its services are being used lawfully consistent with its legal terms. Could the music industry rebut the presumption against a Canadian Kazaa? Hard to say.

Prior posts:
    Sept. 4, 2005 - Australian Judge to Rule in Kazaa Case Tomorrow.
    Apr. 24, 2005 - File Sharers' Parents Plan to Sue Kazaa.
    Mar. 22, 2005 - Final Arguments Begin in Kazaa Lawsuit.
    Mar. 7, 2005 - Kazaa's Assets Frozen in Australia.

Fight the Patent Trolls

says Bob Cote, a partner in Orrick's IP litigation group, in an article at Managing Intellectual Property:

To thrive in the new IP economy it is essential that institutions in the financial industry put in place a culture of innovation and build proper IP infrastructure employing best practices in IP management. It also is essential such companies plan for patent litigation and act proactively to minimize the occurrence and risk of such litigation. To discourage further patent troll growth within the financial industry, a hard line is the right approach.

In a comment on Cote's article, Philip Brooks writes:

As I read the article, I was struck with the complexity of the decision on whether to proceed to litigation when faced with a patent infringement suit or instead attempt to reach a settlement. The decision must reach beyond just the cost of the litigation (Mr. Cote indicates this can be in the range of $5 million) and the risk of losing and paying a large damage award. As he properly points out, a settlement can have large precedential value for your company and your industry. The same is true of a large damage award.

Both articles are well worth a full read.

More: Bob Cote bio.

Prior posts:
    Aug. 25, 2005 - Is Ross Perot a Patent Troll?.
    May 1, 2005 - No Product Does Not Mean No Patent Rights.
    Apr. 1, 2005 - Are Patent Trolls Good or Bad?.

Australian Judge to Rule in Kazaa Case Tomorrow

Yahoo! News (AP) reports:

A long-running court battle between Australia's record industry and file-swapping giant Kazaa reaches a climax Monday, when a judge is to rule on whether the peer-to-peer network is no different from a photocopier or is a giant "engine of copyright piracy."

The report includes commentary from Prof. Michael Geist and EFF's Fred von Lohmann.

Lexmark's "Shrinkwrapification" of Patented Goods

Lexmark has long been looking for ways to thwart the refilled toner cartridge market. It was unsuccessful earlier this year when the Sixth Circuit ruled against Lexmark's DMCA defense.

EFF writes of the latest method, shrinkwrapification:

Now Lexmark . . . has turned to patent law to prop up its effort to keep its customers in bondage. According to Lexmark, the "single use only" label on the boxes of their "Prebate" printer cartridges creates an enforceable contract between Lexmark and consumers. By opening the box, you're agreed to the contract. . . .

If you step outside the bounds of the "contract" (by giving your spent cartridge to a remanufacturer), you're suddenly a patent infringer. More importantly, Lexmark can sue cartridge remanufacturers for "inducing" patent infringement by making and selling refills.

More: ACRA v. Lexmark, No. 03-16987 (9th Cir. Aug. 30, 2005) [pdf - holding that Lexmark's "Prebate" program did not constitute deceptive and unfair business practices].

More: Lexmark press release ("Ninth Circuit Court of Appeals Upholds Lexmark Cartridge Return Program"):

Joining every other court that has ruled upon challenges to the Lexmark cartridge Return Program (formerly known as Prebate), the Ninth Circuit reaffirmed the legality of this highly successful and environmentally friendly program.

Lexmark offers customers discounts on new cartridges in return for their agreement to return the used cartridges only to Lexmark for remanufacturing or recycling. Lexmark uses the cartridges in its remanufacturing business. In order to facilitate competition and customer choice, Lexmark has always offered cartridges without a discount that may be remanufactured by anyone for those customers who desire it.

Prior posts:
    June 8, 2005 - Lexmark Loses Supreme Court Bid in DMCA Suit Against SCC.
    Mar. 17, 2005 - Review of Two DMCA Cases: Lexmark and Chamberlain.

Update (Sept. 5, 2005): More at Patently-O (including overview of the 9th Circuit case, commentary, and additional links).

Support Katrina Relief Efforts

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Volunteer Legal Services.

Intel, Microsoft Take Different Sides in RIM, NTP Patent Case

RCR Wireless News reports:

The courts have ruled that RIM's BlackBerry offering infringes on NTP's patents even though BlackBerry e-mails are managed from an operations center in Canada. . . .

Intel . . . backs RIM's position, arguing that U.S. patents should not extend outside the country's borders.

Microsoft . . . argues the opposite. Microsoft said RIM's position would encourage companies to "locate certain aspects of their systems outside the United States, primarily to avoid infringement liability. Such an outcome would likely result in loss of jobs, skilled workers, capital and information technology abroad."

Prior posts:
    June 22, 2005 - Two More NTP Patents Rejected in RIM Patent Case.
    June 20, 2005 - USPTO Rejects Another NTP Patent in RIM Patent Dispute.
    June 16, 2005 - Backup RIM Technology If NTP Deal Falls Through.

Blizzard Wins Video Game DMCA Suit

First, the decision [pdf].

CNet News reports:

A federal appeals court has ruled that computer programmers do not have the right to reverse-engineer Blizzard Entertainment's video games to improve their playability.

The 8th Circuit Court of Appeals in St. Louis ruled Thursday that federal law--specifically, the Digital Millennium Copyright Act--disallows players from altering Blizzard games to link with servers other than the company's official Battle.net site.

Video Game Law Blog adds:

When the defendants agreed to Blizzard's Terms of Use and End User Licence Agreement, the defendants contractually agreed not to reverse engineer any of Blizzard's software. The Court of Appeal ruled that this contract was binding and enforceable, and that the defendants had breached it. Also, the Court of Appeal ruled that the defendants had breached the DMCA’s anti-circumvention provision.

Donna Wentworth comments:

The DMCA, which is supposed to protect copyright without harming innovation, has a clause specifically exempting reverse engineering. But as today's ruling proves, it's far too narrow and weak to protect third-party innovators.

EFF adds:

"This ruling is bad for gamers, but it could also be terrible for the software industry," said EFF Staff Attorney Jason Schultz. "It essentially shuts down any competitor's add-on innovation that customers could enjoy with their legitimately purchased products. Add-on innovation is one of the hottest areas of creativity and economic growth right now in software, and this decision will slow investment and development in that field."

Finally, from Techdirt:

As some are noting, this seems to go directly against what the backers of the DMCA originally claimed about it: that it would protect copyrights without harming innovation. It's hard to see what this has to do with protecting copyrights however.

More: Silicon Valley Media Law Blog (including an excellent background and summary of the case).

Prior post:
    June 20, 2005 - Blizzard v. BNETD DMCA Case: Oral Arguments Today.

US, India to Sign Science and Technology Agreement

EE Times reports:

The U.S. and India will sign an Indo-US Science and Technology Umbrella Agreement that is expected to resolved lingering intellectual property issues, according to India’s minister for science and technology.

Windows Media Player Hacked by DVD Jon

The Register reports:

Norway's best known IT export, DVD Jon, has hacked encryption coding in Microsoft's Windows Media Player, opening up content broadcast for the multimedia player to alternative devices on multiple platforms.

Jon Lech Johansen has reverse engineered a proprietary algorithm, which is used to wrap Media Player NSC files and ostensibly protect them from hackers sniffing for the media's source IP address, port or stream format.

More: Slashdot.

Prior posts:
    Apr. 19, 2005 - Musik: Next Generation PyMusique Adds Support for Napster.
    Mar. 24, 2005 - Lessons Learned from iTunes Hack.
    Mar. 22, 2005 - Johansen Reenables PyMusique Apple iTunes Hack.

$128M Verdict Upheld in Cellular Patent Suit

Yahoo! News (AP) writes:

A judge on Thursday upheld a jury's $128 million patent infringement verdict that threatens to bankrupt a provider of billing services to some of the nation's largest cellular carriers.

U.S. District Judge Edward F. Harrington denied Boston Communications Group Inc.'s motion to reduce a jury's May 20 damages award.

The damages were awarded to Freedom Wireless.

Prior posts:
    May 23, 2005 - Freedom Wireless Wins Jury Trial in Cellular Patent Suit.

The Customer Is Always Wrong: A User's Guide to DRM in Online Music

from EFF:

This guide "translates" the marketing messages by the major services, giving you the real deal rather than spin. Understanding how DRM and the DMCA pose a danger to your rights will help you to make fully informed purchasing decisions.

Prior post:
    Aug. 26, 2005 - Taking on EFF's Anti-DRM Position.

The Basics of Patent Portfolio Management

from Bill Heinze, highlighting an article written by Dave Fisch titled Patent Portfolio Management.

Edelman: How Yahoo Funds Spyware

Ben Edelman, spyware guru, tells us how Yahoo funds spyware:

In my testing, Yahoo's funding of spyware is widespread and prevalent -- an important source of revenue for many spyware programs installed on millions of users' PCs. Were it not for Yahoo's funding of these programs, the programs would be far less profitable -- and there would be fewer such programs trying to sneak onto users' PCs.

More: Internetnews.com.

Prior posts:
    May 5, 2005 - Goldman on AskJeeves Spyware Problem.
    May 3, 2005 - Edelman's Research on Spyware Makes a Difference.
    Mar. 10, 2005 - Edelman: Comparison of Unwanted Software Installed by P2P Programs.

USPTO Resources for Small Business

The USPTO has launched a program to encourage and help small businesses get easy-to-understand information in intellectual property issues.

About the program:

[T]he USPTO has launched a nationwide program to encourage small businesses to recognize and consider the benefits of strong IP protection-both domestically and abroad. Specifically, the USPTO wants businesses to know:

    * When to apply;
    * What type of protection to apply for;
    * Where to apply; and
    * How to apply.

As part of the campaign, the USPTO has developed this Web site to help small businesses better identify and address their IP protection needs.

Hat tip: The Entrepreneurial Mind.

Privatizing the PTO, a Bad Idea?

rethink(ip) asks whether privatizing the PTO is a bad idea:

If Congress can't improve the process/quality by allowing the PTO to keep the user fees and use it to improve quality and service, let's innovate around them.

Head over a let them know what you think.

IBM Exec Praises Software Patents

Irving Wladawsky-Berger, a VP at IBM, writes in his blog on the topic of software patents:

When thinking about software patents, the focus should be on the quality of the idea being patented, not on whether it is about software or is being expressed as a software computer program. A number of functions that in the past could only be done in hardware are now being carried out in software due to advances in technology and programming tools. If the function was innovative enough to legitimately qualify for a patent when expressed in hardware, it should still merit a patent if now carried in software. . . .

I am concerned that if we eliminate software patents, an unintended consequence will be a slowing of innovation in services, business solutions, business processes, and similar new fields of endeavor, and will cause people applying for legitimate patents in these areas to attempt to express their ideas in some other less precise way just to avoid their being viewed as software innovations.

Patent regimes around the world, especially in the US, are in dire need of reform. We should focus all our energies on getting this done and not let the debates over software patents divert us from that very important task.

Prior posts:
    Aug. 31, 2005 - Don't Fear Software Patents.
    June 20, 2005 - Comparing Software Patents to 19th Century Literature Patents.
    June 5, 2005 - Software Patents Will Not Kill Open Source Software.

IBM, WARF Settle Patent Infringement Suit

Star Tribune writes:

International Business Machines Corp. on Tuesday became the latest company to settle charges of infringing a patent owned by the University of Wisconsin's research arm in making computer chips.

The Wisconsin Alumni Research Foundation, which owns patents granted to UW researchers, had accused IBM in a federal lawsuit of infringing on patented technology in making and selling copper-based chips.

More: WARF.

France Declares War on US Content Industry

Jacques Chirac is apparently fed up with Hollywood and the rest of the American content industry supplanting European culture. And so the race is on to build a counter-weapon: a government-sponsored eurocentric search engine.

The Telegraph writes:

French president Jacques Chirac yesterday pledged to help fund a new European internet search engine to rival Google and Yahoo as he railed against what he sees as the threat of Anglo-Saxon cultural imperialism. . . .

Mr Chirac's intention is to provide forgivable loans to a Franco-German "multimedia search engine for the internet".

Between the Lines responds:

Next, Chirac . . . is going to claim that Google and Yahoo are hiding WMD in their algorithms. Cultural imperialism is a scourge, but creating another multimedia search engine and fomenting a search technology arms race is not a solution.

Prior posts:
    Aug. 30, 2005 - Chirac Pleas with High Tech Business to Stay in France.
    Apr. 3, 2005 - Googlephobia in France.

Update: More at IP Democracy:

French President Jacques Chirac is on a crusade to stamp out Anglo-Saxon cultural imperialism by mounting European competition to Google and Yahoo. I kid you not.

Update (Sept. 2): Apparently, Google is listening to the European complaints, as Yahoo! News (AP) reports:

Google Inc. is asking European book publishers to submit non-English material to its Internet-leading search engine — a move that may ease worries about the company's digital library relying too heavily on Anglo-American content. . . .

Google hopes to substantially increase the volume of non-English books in its database . . . .

If Google achieves that objective, it could mute European critics who sniped at the company earlier this year for giving a top priority to scanning English-language books.

More: Slashdot.

Microsoft's Public Policy Goals: Help Foster Growth and Innovation

Microsoft discusses its top legislative issues - free trade, spyware, cybersecurity, patent reform, and research.

On patent reform:

We have four primary goals.

First, we want to ensure high patent quality, in part by making certain that the Patent Office has the resources it needs to examine increasingly complex patent applications in the technology space. Second, we support efforts to curb excessive litigation and litigation abuses that have emerged in the patent space. Third, we want to see greater harmonization of the various patent systems around the world. And finally, we support legislation to increase access to the patent system for small inventors.

Check out the rest, which provides a nice overview of the important policy issues facing US technology companies today.

Microsoft to Develop Law Enforcement Portal

CNet News writes:

Expanding its efforts to help law enforcement with cybercrime investigations, Microsoft plans in the coming months to launch a new online resource.

The Web site will include training, tips and tools for investigations and information on cybercrime, Richard LaMagna, director of worldwide law enforcement programs at Microsoft, said in an interview with CNET News.com on Wednesday at the annual High Technology Crime Investigation Association event here. . . .

The new Law Enforcement Portal should be online by November.

Prior post:
    Apr. 7, 2005 - Microsoft's Child Exploitation Tracking System to Help Police Fight Child Pornography.

Don't Fear Software Patents

says the former Patent Commissioner Bruce Lehman in an August 30 Wall St. Journal editorial (subscription required to access online).

The Patent Prospector provides a nice summary for us.

States Encourage Internet Tax

Yahoo! News (AP) reports:

Come this fall, 13 states will start encouraging — though not demanding — that online businesses collect sales taxes just as Main Street stores are required to do, and more states are considering joining the effort. . . .

The states are offering businesses a promise — and an implicit threat. If businesses register and start collecting taxes this year, they're given a yearlong amnesty from the possibility that states may seek back taxes for online purchases.

The 13 states include Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Nebraska, New Jersey, North Carolina, North Dakota, Oklahoma, South Dakota, and West Virginia.

Prior posts:
    Apr. 19, 2005 - Senators Introduce Bill to Extend Ban on Internet Taxes.
    Feb. 28, 2005 - Are We Ready for an Internet Tax?.

Obtaining a Patent in 30 Days or Less

IP Counsel discusses an article written by Joseph Berghammer of Banner & Witcoff titled Speeding the Patent Process [pdf - Aug. 2005]:

[A]pplying the “follow-up and follow-up again” strategy in the Swiss Office may result in patent applications that publish in less than 30 days. . . .

Thus, by filing a patent application in Geneva, it may be possible to toll the start date for acquiring damages in as early as 30 days.

754 More RIAA P2P File-sharing Lawsuits

reports Reuters, bringing the total to over 14,000.

Prior posts:
    Aug. 29, 2005 - RIAA v. Soccer Mom - The Transcript.
    Aug. 26, 2005 - More P2P File-sharing Lawsuits.
    Aug. 22, 2005 - College Students Still Downloading Music Illegally.

Update: More at Slashdot.

A Key to Good Patent Drafting

from Anything Under the Sun Made by Man.

Did MPAA and RIAA Design Windows Vista?

asks osViews, which writes:

For the first time, the Windows operating system will wall off some audio and video processes almost completely from users and outside programmers, in hopes of making them harder for hackers to reach.

Update: RealTechNews asks if the DRM features in Microsoft OS's mean the end of fair use.

Lessig: The Grokster Pundits Are Idiots

In back-to-back Lessig posts...

Lessig writes a Wired article titled The Rotten Ruling:

Pundits bathed the Court in praise for its "sensible balance" between the demands of Hollywood and the pleas of technologists. The pundits are idiots. The Grokster case revealed the worst in Supreme Court ivory towerism. Astonishingly, hardly anyone noticed.

Hat tip: eLegal Canton.

Prior posts:
    Aug. 25, 2005 - The "Chilling Effect" of Grokster.
    Aug. 22. 2005 - Grokster Cited in Federal Circuit Case.
    June 29, 2005 - Grokster Bloggers Like Lab Monkeys on Meths.

Lessig on the Public Domain

Lessig writes a piece in the September/October edition of Foreign Policy titled The Public Domain:

Within every culture, there is a public domain—a lawyer-free zone, unregulated by the rules of copyright. Throughout history, this part of culture has been vital to the spread and development of creative work. It is the part that gets cultivated without the permission of anyone else. . . .

It is essential to how cultures develop.

EpicRealm and Dynamic Web Page Patent Litigation Update

vnunet provides an update on EpicRealm, and the litigation surrounding its patents covering broad aspects of dynamic web pages:

If the patents are upheld in court, they could apply to "most modern ecommerce sites that are involved in dynamic web page generation and caching," said Ira Rothken, founder of the Rothken Law Firm that is representing Friendfinder.

Friendfinder is one of the defendants in the lawsuits, which were brought earlier this year against a total of 12 defendants.

More: The two EpicRealm patents, U.S. Patent No. 5,894,554 and U.S. Patent No. 6,415,335.

Chirac Pleas with High Tech Business to Stay in France

LA Times reports:

The president [Jacques Chirac] reserved a pointed message for France's blue-chip companies, which in many cases have substantial operations outside French territory.

"It's time for you to invest more and better in research on our soil," Chirac said. "I don't see any contradiction between the international nature of your business ... and the privileged link you must retain and strengthen with France."

"Everything favors the situating of high-technology operations in France and Europe," Chirac told business leaders. "I'm counting on you."

Nintendo Patents Video Game Insanity

U.S. Patent No. 6,935,954:

A video game and game system incorporating a game character's sanity level that is affected by occurrences in the game such as encountering a game creature or gruesome situation. A character's sanity level is modified by an amount determined based on a character reaction to the occurrence such as taking a rest or slowing game progress and/or an amount of character preparation. . . . As the character's sanity level decreases, game play is effected such as by controlling game effects, audio effects, creating hallucinations and the like. . . .

More: Slashdot.

A Brief History of Cyberlaw

by Orin Kerr at Balkinization.

Hat tip: Volokh Conspiracy.

Creative's Zen Patent May Be Trouble for Apple

Creative Technology announces:

Creative Technology . . . today announced that it has been awarded U.S. Patent 6,928,433, which Creative is referring to as the "Zen™ Patent." The Zen Patent was awarded to Creative for its invention of the user interface for portable media players, including many of the Creative Zen and NOMAD® Jukebox MP3 players, and found in some competing players, such as the Apple iPod and iPod mini. The Zen Patent covers the user interface that enables users of portable media players to efficiently and intuitively navigate among and select tracks on the players.

More: U.S. Patent No. 6,928,433 [pdf].

More: engadget.

Update (Aug. 31, 2005): Techdirt calls Creative's patent nothing more than a publicity campaign.

iSuppli: Semiconductor IP Market Growing

EE Times writes:

The market for semiconductor intellectual property (IP) is set to grow to more than $2.04 billion in 2009 from $1.2 billion in 2004, according to market research company iSuppli Corp.

More: iSuppli.

Hunsaker: New Definition of Prior Art Promotes Imitation Not Innovation

Kelly C. Hunsaker writes a piece titled Taking Care of Business, which takes a look at the Patent Reform Act of 2005.

Hunsaker believes the Act "goes a long way toward addressing many troubling aspects of the current patent system." Hunsaker, however, does take issue with a new limitation on prior art.

New Section 102(b) states that subject matter is publicly known only when it becomes "reasonably and effectively accessible," i.e., a person of ordinary skill in the art must be able to "gain access to" and "comprehend" the subject matter without resort to "undue efforts."

On this new limitation, Hunsaker writes:

This proposed "clarification" of prior art is about as clear as mud. It breeds uncertainty and, many will argue, drastically narrows the body of prior art. . . .

The bottom line is that the redefinition rewards imitation, and would be litigated for the next decade to show otherwise.

Prior posts:
    Aug. 29, 2005 - Patent Reform Act Amendment to Make Inequitable Conduct a Circus.
    Aug. 24, 2005 - Cringely: Patent Reform Unfair to Absent-Minded Inventors.
    Aug. 23, 2005 - Draft Amendment to Patent Act of 2005 Circulating.

Chinese Anti-Online Game Addiction System Sets 3-Hour Time Limit

vnunet.com reports:

China is limiting the amount of time gamers can spend online in an attempt to cut down the phenomenon of marathon gaming.

According to reports from China's Interfax press agency, from October the government will introduce penalties for those who play an online game for more than three hours. Once the time limit has been reached the characters in the game start to lose their powers and, after five hours, games will flash up a warning message every 15 minutes.

The gamers are starting to protest.

Game Politics writes:

Interfax is reporting today, however, that Chinese WoW players have begun an Internet petition drive to protest the government action. . . .

As of Monday, over 1,000 Chinese gamers had signed the petition.

RIAA v. Soccer Mom - The Transcript

I blogged last week about a mom (Patricia Santangelo) not willing to settle with the record industries in a P2P file-sharing lawsuit.

This week a few bloggers are commenting on the transcript from their initial appearance in court earlier this year.

Godwin's Law writes:

I urge you to read the transcript of Ms. Santangelo's court appearance . . . . It is fun to read, and it has made me an instant admirer of Judge McMahon, who refused to be a mere conduit steering Ms. Santangelo to the RIAA's "conference center" (which should properly be called a "surrender center").

Godwin then provides an interesting excerpt from the transcript highlighting the judge's refusal.

In response to Godwin's post, Donna Wentworth writes:

Nice. And a wonderful reminder that the lawsuits affect real people with real lives — even busy judges who may chafe at the role they're being asked to play in this unfortunate, ineffective "education" campaign.

IP Democracy adds:

Judge Colleen McMahon of the U.S. District Court for the Southern District of New York seems to be on Santangelo's side. According to a transcript of a hearing held in the case, Judge McMahon made clear she doesn’t like the tactics of the RIAA.

Finally, Techdirt weighs in:

As Copyfight implies, the judge is making it clear to the RIAA that this is a court case and not an education campaign, as the RIAA likes to think of it. While it would be great if this case does go to court, all this publicity is upping the ante for the RIAA to push for a settlement as quickly as possible.

Prior post:
    Aug. 22, 2005 - Soccer Mom Takes on Record Companies in P2P File-Sharing Case.

Update (Aug. 30, 2005): (via Copyfight) P2Pnet.net interviews Ray Beckerman, the attorney representing Ms. Santangelo. Two quotes from Beckerman:

We expect Ms Santangelo's costs to be picked up by the RIAA, since (a) the copyright statute permits the Court to shift the attorneys fees to the losing party, (b) these cases were clearly frivolous and brought in bad faith, and (c) it is a matter of public interest that the RIAA be deterred from bringing more such meritless cases. . . .

It will be an interesting conversation when and if I get to talk to whoever has managed to convince the gullible people in charge of the RIAA that their terrorism is helping them.

More: Ray Beckerman's bio and blog and court documents.

Patent Suit Filed Against Dell, Office Depot, J.C. Penney, Williams-Sonoma, J. Crew

Internet Media Corp. announces:

Internet Media Corp. filed a patent infringement lawsuit today against Dell . . ., Office Depot . . ., J.C. Penney . . ., Williams-Sonoma . . ., and J. Crew Group. . . .

Filed in U.S. District Court in Delaware, the suit charges the named parties with infringing Internet Media's patent related to the use of codes to facilitate access to the Internet.

It is not clear from the press release which patents are involved, however, there are two listed on Internet Media Corp's website.

From the abstract of U.S. Patent No. 6,049,835 [pdf]:

A system for quickly and easily accessing preselected desired addresses or URLs on the Internet is disclosed in which a published list of Internet or World Wide Web sites together with their unique jump codes is utilized in connection with a corresponding specialized Web site which is accessed by a user using either a personal computer or a TV Internet Terminal and remote control, after which access a jump code corresponding to the preselected desired URL is entered by the user and software contained in the specialized Web site immediately and automatically accesses the desired Web site.

From the abstract of U.S. Patent No. 6,769,018 [pdf - 1.1M]:

A system for quickly and easily accessing preselected desired addresses or URLs on the Internet is disclosed in which a unique jump code for a particular desired address is published by printing it in an advertisement in a Yellow Pages directory or in a newspaper advertisement or by announcing it during a television or radio program. The user enters the jump code into an Internet location for receiving it, e.g., the home page of the Yellow Pages publisher, to access the desired address without typing the full URL. The user can then receive more information, promotional coupons, or the like.

More: Ronald J. Schutz (attorney at Robins, Kaplan, Miller & Ciresi representing Internet Media Corp.)

$1.25M Patent Application Fee with 13,305 Claims

You don't see a $1.25M patent application fee every day.

The above link takes you to the image file wrapper for Application No. 11/006,891 Electrical devices and anti-scarring agents.

The "Claims" indicate a total of 13,305 claims.

The "Pre-Exam Formalities Notice" indicates a $999,600 fee for 9,996 independent claims over 3, and a $249,475 fee for 9,979 total claims over 20. (Apparently, either the PTO system is unable to process more than 9,999 claims, or the PTO stops charging for claims greater than 9,999.)

The "Transmittal letter" indicates the specification (including claims) was 1,895 pages in length.

A subsequent amendment appears to get the number of claims to below 100.

Hat tip: Now, Why Didn't I Think of That?.

Patent Reform Act Amendment to Make Inequitable Conduct a Circus

writes Lee Thomason at Patent Baristas:

[W]hat is the worst havoc that the "Amendment" allows an infringer to craft around a colorable claim of inequitable conduct. I think that the grandest fracas would be (1) a suit pleading invalidity, unenforceability and attempted monopolization, and (2) a "referral" per §136(c) of the alleged inequitable conduct for a Special Office investigation, and (3) if you time it right, a post-grant opposition proceeding per §321 of the proposed Reform bill. That three-ring circus should keep the patentee occupied, whilst the infringement continues, for a good long while!

Check out the rest.

Prior posts:
    Aug. 24, 2005 - Cringely: Patent Reform Unfair to Absent-Minded Inventors.
    Aug. 23, 2005 - Draft Amendment to Patent Act of 2005 Circulating.

Piracy Crackdown Causes Shift from BitTorrent to eDonkey

Reuters reports:

Traffic in the popular file-sharing network BitTorrent has fallen in the wake of a crackdown on piracy, but file sharers have merely shifted to another network, eDonkey, new data released on Monday showed. . . .

A study by the Cambridge-based Internet analysis firm CacheLogic found that eDonkey is now roughly on par with BitTorrent in the United States, China, Japan and Britain.

More: CacheLogic.

Update: Nerdlaw.org asks, Is Anyone Surprised?.

More: TechNewsWorld.

More on Sun's Open Source DRM DReaM

Sun Microsystems announced its Open Media Commons initiative last week, which included the open-source DRM project titled DReaM.

This week in his blog, Jonathan Schwartz, President and COO of Sun, puts it all in context and adds some clarification:

Our view is that an effective solution to the challenge of ensuring IP owners can manage their own security and access controls - and compensation, if that's what they seek - must make a few basic assumptions. Let's outline them:

There is no one busines model for all intellectual property.

There must be no royalty or patent risk.

There must be no hard linkage to any one device.

There must be no hard linkage to any one media format.

Hat tip: IPcentral Weblog.

Prior post:
    Aug. 22, 2005 - Sun Launches Open Media Commons Initiative.

Who Owns the Patents for Carbon Nanotubes?

Find out at AZoNano.

Hat tip: IPBiz.

Patent Prosecution Is NOT a Commodity

writes rethink(ip):

When preparation and prosecution becomes a loss leader, so do your clients.

GoogleNet: Google's Own Internet?

Business 2.0 speculates about the possibility of a free internet run by Google and accessible to all through Wi-Fi.

More: Slashdot.

UN Control of Internet Is Out of the Question

says Sen. Norm Coleman [R - Minn.].

Free2Innovate.net agrees:

The UN has no business taking over the Internet and no track record to indicate that allowing it to do so would be anything other than detrimental to the continued innovation of the Internet and a disaster for the Internet's continued use as a tool to undermine oppressive governments.

Prior posts:
    Mar. 29, 2005 - UN Interested in Governing the Internet.

How the Internet Is Shaking Up the Music Business

Chris Dahlen at Pitchfork has written an interesting article titled The Chumbawamba Factor:

Everybody knows by now that the internet has shaken up the music business. But one of the subtler changes has been the amount of raw information that the industry collects-- to study the music that sells, and to face up to the music that doesn't.

It's stunning to think about how much music fans are telling us about themselves, in their search queries, the libraries on their hard drives, and the lists they print on their MySpace pages. It's the same kind of quantum leap that we forget to appreciate in, say, web surfing or TiVO, where someone's collecting exponentially more information about you than they ever could before.

The article focuses on BigChampagne, a market research firm specializing in P2P networks.

Read on for more (and to find out what the "Chumbawamba Factor" is).