Herring and Patents – And no, I don’t mean fish.

The other day I mentioned a chart from the Economist outlining the largest patent granting countries – with Japan coming out on top.

The Intellectual Asset Management Magazine also picked up on the online chart and added some additional thoughts to the debate concerning software patents.  They posit that it is the certainty of the legal protections afforded rather than the existence of protection for information technology that ensures a competitive industry.  In other words, patent protection for software is a debate that has little, if anything, to do with maintaining open and competitive IT industries.

Some food for thought…

Is the software patent debate a red herring?

That said, the EIU sees the legal infrastructure in a country as being much less important than other factors, such as IT infrastructure, human capital, R&D environment and support for IT industry development. Of course, it could be that all of these are actually affected by the IP infrastructure of a country (in other words, for example, maybe a company is more likely to invest in R&D or to attract funding for R&D, if the right IP protection is available); but it could also well be that, if the EIU is right, the vitriolic nature of the debate around software patents is actually little more than hot air because, in the end, as long as there is legal certainty – of whatever kind – other factors are far more important in ensuring strong competition in the IT industry. (Emphasis added)

Posted by Douglas Sorocco, August 5, 2007 at 9:15 pm
Permalink: Herring and Patents – And no, I don’t mean fish.
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EFF Sues Michael Crook for Bogus DMCA Claims

Be very careful when you make threats against ISPs under the Digital Millennium Copyright Act (DMCA).  The Electronic Frontier Foundation is taking the issues seriously and are pushing for a preliminary injunction to stop the potential harassment and abuse. 

As a primer: under the DMCA, a copyright holder can request that an ISP remove offending material from the web.

With respect to the EFF action (at Laughing Squid):

“The EFF has just filed suit against Craigslist copycat scammer Michael Crook for filing bogus DMCA claims. In September, a blog post about Michael Crook on 10 Zen Monkeys (which is run by Jeff Diehl) used a screen shot from Fox News of Michael Crook. Michael then send a DMCA (Digital Millennium Copyright Act) takedown notice to Jeff’s web host, claiming that he had a copyright on the image. Jeff’s web host then forced him to remove the image or his account would be suspended. Jeff then moved 10zenmonkeys.com to Laughing Squid Web Hosting (the web hosting company that we run). Within 24 hours, our data center was sent a DMCA claim from Michael Crook, requesting that the image be removed. I immediately contacted Jeff to discuss the situation, as well as Jason Schultz, an attorney at The Electronic Frontier Foundation. A few weeks later, EFF filed the complaint.”

Source: Laughing Squid » EFF Sues Michael Crook for Bogus DMCA Claims

Posted by Douglas Sorocco, November 1, 2006 at 8:55 pm
Permalink: EFF Sues Michael Crook for Bogus DMCA Claims
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Microsoft files for patent on curse words.

Well, not really.  But I figured that headline might get all the anti-patent folks riled up.  Turns out the Microsoft filed a patent application (Pub. App. 20060095262) in 2004 on a method of automatically sensing and removing curse words. 

Arstechnica is on the case “unearthing” this patent application … um, a note to the writers over there – there really isn’t much to “unearth” – the vast majority of patent applications are published 18 months after they are filed.  The use of the term “unearthing” makes it sound like y’all were doing some sort of Indiana Jones or Dora the Explorer expedition or something. 

Anyway, back to the subject at hand:

A recently unearthed patent application originally filed in October 2004 by Microsoft could make television and radio broadcasters very happy. In it, Microsoft describes the use of an “automatic censoring filter” that can censor undesirable speech in real-time (or batch mode, for Chris Rock). Here’s how it works [according to the abstract]:

 

The automatic censoring filter employs a lattice comprising either phonemes and/or words derived from phonemes for comparison against corresponding phonemes or words included in undesired speech data. If the probability that a phoneme or word in the input audio data stream matches a corresponding phoneme or word in the undesired speech data is greater than a probability threshold, the input audio data stream is altered so that the undesired word or a phrase comprising a plurality of such words is unintelligible or inaudible.

A quick check of the status of the application shows that Microsoft hasn’t yet filed an information disclosure statement listing all known prior art – I wonder if it will include a statement that it is “well known in the art that mothers have washed their kids mouths out with soap” for engaging in such “undesired speech”?

Posted by Douglas Sorocco, May 6, 2006 at 10:00 am
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Trying to Burst the bubble – Just another troll?

So last week we asked ya’ll to give us your best shot at a litmus-test definition for the term ”patent troll.”  It’s an understatement to say that the response was somewhat underwhelming.  We received a grand total of……zero definitions.

We’ve decided to take that as an indication of the difficulty associated with defining the term and not a statement about the readership of the blog (which, for the record, is reaching all time highs right now).

We do believe that the issue is important enough for a follow-up, though.  How about a real life example?

Check this out – Burst.com recently filed a patent infringement suit against Apple Computer.  The patents at issue relate to technology that speed the delivery of data, including audio and video files, over a network.

We’ve got a question for you.  A simple one.  Is Burst.com a patent troll?

Wait…don’t answer.  Consider a few facts first:

The company has two (count ‘em, 2) employees and a portfolio of ten (count ‘em, 10) U.S. patents.  It routinely asks companies to license its patents, and sues them if they don’t.  It focuses on software and high-technology companies for some reason (must have something to do with the fact that the technology relates to that area).  Just last year, it successfully settled a dispute with Microsoft for a reported $60 million.

Hmmm…smacks of a patent troll by most definitions, right?

Consider this description from the company’s web site:

The company focuses exclusively on licensing activities and strategic relationships.

(emphasis is ours)

Are you serious?  An exclusive focus on licensing and strategic relationships?  Does that mean they don’t actually produce anything?  (based on the web site, it’s hard to tell if any “products” are available from the company at this time)

Surely there must be a bridge running over the Burst.com headquarters in Santa Rosa.

But, don’t answer the question yet…Here’s a few more facts:

According to a recent article in BusinessWeek, the Microsoft settlement reportedly earned the lawyers a fee of about $20 million.  That lawsuit was apparently financed by “an investor.”  Oh, and the company openly states that its goal in the Apple lawsuit is to seek a chunk of the growing revenues for online music distribution. 

A troll for sure, right?  These guys are Pure Evil.  Damn trolls.

Humor me, though.  Don’t answer yet.  As Lee Corso would say, “not so fast, my friend.”

Here are a few more facts that you should consider:

The founder of Bust.com is recognized by many as a true visionary in computer network technology.  He’s an inventor.  His technology apparently wowed the crowd at the Consumer Electronics Show in 1991.  He had invented improved methods for transmitting data over computer networks long before large video and audio files were of concern to the masses.  The company was once viewed as a real tech startup success story, and had even grown to include 110 employees in the late 1990’s.

But when Microsoft upgraded its Media Player software, Burst’s product, Burstware, stopped working.  Strange.  Payroll shrank immediately from 110 to 4.

Ok…now give us your answer (or keep it to yourself, we don’t care…just try to answer the question).  Is Burst.com a patent troll?

Or is it just an angry innovator seeking to protect its property?

Do you see the challenge?

Posted by Douglas Sorocco, April 18, 2006 at 10:40 am
Permalink: Trying to Burst the bubble – Just another troll?
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handbook on patent mapping from Japanese patent office

Steve Nipper sent me a handbook from the Japanese Patent Office outlining different methods of mapping patent information and data. (JPO Patent Map Handbook (294 KB))  Steve always comes up with these little jems that he finds while scouring the Internet.

As Steve knows, Matt and I are deeply interested in the use of software, such as the excellent mindmapping software “MindManager” by Mindjet, to graphically display and present patent information. We have used this type of a system for freedom to operate opinions, state of the art searches, competitive intelligence reviews and strategic patenting initiatives.  The JPO Patent Map Handbook is an interesting read that presents patent mapping initiatives from the point of view of a national patent office.

Well worth a glance if you, or your clients, do any kind of strategic patenting activities. 

Posted by Douglas Sorocco, March 23, 2006 at 3:09 pm
Permalink: handbook on patent mapping from Japanese patent office
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what do anti-software patent advocates want?

No software patents at all, of course.

To the die hard advocates it isn’t about the quality of the patents being issued or the term of exclusivity that is being given.  It is about very existence of patent rights for software – period.

In an article at NewsForge (the online newspaper for Linux and open source) about IBM’s new initiative with the US Patent Office to create repositories of prior art for the USPTO to use in examining software patents, one prominent anti-software patent advocate sums it up:

Software developer and patent opponent Florian Mueller says, “Those patent pools and prior art initiatives aren’t harmful per se, but the intention behind them is to give people comfort when there are serious reasons to be worried and to push for a legislative ban of software patents.”

Mueller, the founder of NoSoftwarePatents.com and a key figure in the fight against software patents in Europe, says the efforts might reduce the number of US patents that are granted, given prior art. However, he added that those are the kinds of patents that can be invalidated anyway by later proving that prior art existed at the time of the patent application.

“The patents that really give reason for concern, such as the Eolas patent or Microsoft’s File Allocation Table (FAT) patents, survive any prior-art check, so they can’t be prevented by that initiative,” Mueller says. “So far, the users or vendors of no major open source program have been successfully sued over a patent in a way that made headline news, but the day it happens, the problem will be understood by many, and people will then look at those patent pools and prior-art libraries and realize that those don’t solve the patent problem to any meaningful extent.”

Posted by Douglas Sorocco, February 17, 2006 at 9:14 pm
Permalink: what do anti-software patent advocates want?
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IP and Music – A Documentary

Steve Cummings at Hodges Partnership was kind enough to send me a link to an interesting documentary (documentary is enttiled “What Do you Think?”) he directed for the IP Institute at the University of Richmond School of Law.

It is a great tutorial and raises some interesting questions relating to intellectual property, file sharing, copyright and the role of each in today’s society.  While geared toward undergrad students, I think it would be a useful tool for any class or academic situation exploring these issues.

Thanks for the link Steve!

Posted by Douglas Sorocco, December 11, 2005 at 12:34 pm
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Engines of Growth – Report of the Economic Contributions of the US Intellectual Property Industries

According to an article entitled Content must catch up with new-media world, the real world ramifications of “rampant” intellectual property theft are shocking:

A study released by NBC Universal on Monday put a fine point on just what is at risk not only to media and entertainment industries but also to the overall U.S. economy. “Engines of Growth: Economic Contributions of the U.S. Intellectual Property Industries,” (PDF) commissioned by NBC Universal, yielded “shocking” conclusions according to NBC Uni chairman and CEO Bob Wright regarding copyrighted music, books, TV shows, films and patents.

The piracy of intellectual-copyrighted products is costing the U.S. about $250 billion annually. Globally, it is estimated that more than one-third of all software is pirated. Domestically, what hits home is that 40% of the growth of U.S. private industry contributing to the all-important gross domestic product is from intellectual property-related industries. In other words, this still problematic matter is a U.S. economy-buster.

Well worth the read, whether your are pro-IP or a copyfighter at heart – thanks to IPcentral for hosting the PDF. 

I would suggest reading the report in tandem with Nicholas Carr’s blog post entitled “The Amorality of Web 2.0” – why you may ask?  Well, take this excerpt for example:

But the yearning for a higher consciousness didn’t burst with the bubble. Web 1.0 may have turned out to be spiritual vaporware, but now we have the hyper-hyped upgrade: Web 2.0.

. . . .

The promoters of Web 2.0 venerate the amateur and distrust the professional. We see it in their unalloyed praise of Wikipedia, and we see it in their worship of open-source software and myriad other examples of democratic creativity. Perhaps nowhere, though, is their love of amateurism so apparent as in their promotion of blogging as an alternative to what they call “the mainstream media.”

To those of you copyfighters who want everything free, open and accessible without limitations on access – I have a question:

Is free information that is incorrect, inaccurate, incomplete and incoherent really free?

Just asking.

Posted by Douglas Sorocco, November 8, 2005 at 9:58 pm
Permalink: Engines of Growth – Report of the Economic Contributions of the US Intellectual Property Industries
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eTV: Another Attack on Entertainment Industry

Digital Video Recorders (DVRs), such as TiVo are sweeping the country. If you do not have at least one DVR, you are really missing a new way to watch television. When you choose to record your favorite programs, you get to watch what you want, when you want. If you do not own a DVR, you can Rent my DVR. Okay, so it is not my DVR, but that is the name of the site. You can have someone record five shows for a Euro. Of course, you must click a box saying that you have the right to view the programs. If you do not have Discovery, Comedy Central, Showtime, or FX Network, you technically should not ask them to record shows that air on those channels. This is not the only way to transmit recordings from the TV broadcast to a computer. In fact, TiVo ToGo allows transfers to PCs, DVD, or mobile devices.

Another example, wwiTV has 1047 stations listed around the world, and even tells you how to record programs using your computer. I could not find anything talking about permission to broadcast. However, it does seem that most of the stations are local broadcast stations.

While the advancements above are suspect, more clear violations are happening.

Did you know that you can watch ESPN and Discovery Channel without paying? See PPLive (in China), and coolstreaming (in Hong Kong and currently shut down due to copyright infringement allegations). There is little question that this online sharing of premium content violates the owner’s copyright. However, enforcement is already difficult. An ipFrontline article discusses the copyright challenges this poses. For example, the server with information about violators may be out of the jurisdictional reach of the copyright owners.

What is an entertainment industry to do?

Posted by Douglas Sorocco, October 7, 2005 at 10:38 am
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ip memes’ newest members

IP Memes will include a couple of new contributors in the next issue due out on September 26 – namely, Matt Buchanan of the Promote the Progress blog and myself.
If you’re not familiar with The TechnoLawyer Community…you should be. TechnoLawyer provides a number of great newsletters (including IP Memes), and a forum where “technolawyers” can ask one another questions about technology (i.e., “has anyone every used _______ and what did you think about it?”). It is an excellent resource for all tech attorneys, and has an archive which I have searched from time to time with questions (what scanner to purchase, whether I should upgrade to the latest version of __________, etc.). The best part? It is free. Try it, if you don’t agree you can easily unsubscribe.

Over the past year Steve Nipper of The Invent Blog has been writing the IP Memes newsletter. IP Memes is described as “a weekly newsletter that explores emerging technology-related intellectual property issues — or “memes” as we call them. Think of it as your coal-mine canary for intellectual property issues.”

Steve has been doing a solid job this past year – Matt and I are both thrilled to be asked to join him to continue IP Memes’ tradition of excellence and join some of the IP community’s finest commentators and thinkers – including Dennis Kennedy, Denise Howell, Gail Standish, Kevin Grierson and Kurt Calia – all of whom, are IP Memes alumni.
Click the image above to be taken to the signup form for IP Memes and yes, it is just another example of the collaboration taking place over at Rethink(IP). You never know where we might “pop up” next.

Posted by Douglas Sorocco, September 7, 2005 at 8:06 pm
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