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).

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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.