The Huffington Post: There’s plenty going on in Washington DC today in the world of intellectual property with the US Trade Representative, Ron Kirk, standing in as the sole witness before the Senate Finance Committee as it holds a meeting on the 2010 Trade Agenda. James Love, Director of Knowledge Ecology International, offers some thoughts on why the USTR is increasingly being seen by many to be “anti-consumer” and in the pocket of high-powered lobbyists representing big pharma, media and other IP-centric corporations. In his topical piece, US Trade Rep Serves Drug Companies, Publishers and Pushes Anti-Consumer Agenda, he writes:
From the point of view of many consumers, public health, digital rights and development groups, USTR is a major disappointment, as it pushes an anti consumer agenda on dozens of issues. Industry lobbyists, on the other hand, are pretty happy. One PhRMA lobbyist told Knowledge Ecology International (KEI) that they were amazed at how “malleable” USTR is under Kirk. General Electric lobbyists on climate change practically write the USTR work program on patents and climate change. When publishers were rebuffed by the White House office of disabilities and the US Patent and Trade Office (USPTO) on a proposed treaty for copyright exceptions for persons who are blind or have disabilities — they turned to USTR to reign in the Obama administration’s bleeding hearts. When the White House issued a new memorandum on transparency, the USTR laughed, and declared negotiations on an international agreement on damages for patent and copyright infringement to be a state secret — except for hundreds of corporate lawyers and advisors who are briefed under non-disclosure agreements.
The international act in question is ACTA which has come under close scrutiny by consumer advocacy groups and those interested in holding the Obama administration to their promise of openness and freedom of information. The secretive meetings surrounding the international accord on protecting intellectual property flies in the face of the principles of citizen government and certainly isn’t in keeping with the greater ideas of democracy. What ever happened to all the change that was promised?
Inc.: So exactly how much could it cost your company if you incorrectly label your products as having a pending patent or with the wrong number? Turns out that the price of such a mistake just went through the roof. Courtney Rubin’s recent article, New Patent Law Ruling Could Cost You Big Bucks, explains just how serious fake claims of patent protection have become. Here’s the rub:
On December 28, 2009, the Federal Circuit Court of Appeals held in the case of Forest Group Inc. v. Bon Tool Co. that patent owners and others may be fined up to $500 ($250 for the plaintiff and $250 for the federal government) for every product or advertisement bearing a false patent marking. (Note that the fine is per item – if you’ve got 1,000 items mislabelled, you could be liable for $500,000 – a big change from pre-ruling, when it was a single $500 fine per decision). What’s considered false marking? Saying there’s a patent pending when you haven’t actually filed an application, using a patent number that doesn’t cover the product, and marking a product with a number that has expired. (If you think it was such a struggle to get the patent that you’d never let it expire, keep in mind that if you miss a maintenance fee, your patent can lapse prematurely).
What can a business do to mitigate such a disaster, you ask? Rubin offers the following advice:
Lawyers Gerry Kraai and Justin Poplin of intellectual property firm Lathrop & Gage suggest documenting your reasons for marking a product as you have. You can get a lawyer to do this but the notes of a supervisor or engineer will suffice – the point is to show that you have a review process in place and could help you demonstrate good faith if a suit is ever brought.
Second, avoid any conditional language – both “this product may be protected by” or “this product is protected by one or more of” (in the latter, you need to know exactly which patents it’s protected by). If you’re not sure if you can use a patent number, you’ll need to consult a lawyer – this goes back to the court’s ruling that it’s up to the holder to pay for any costs associated with using a patent.
In any case, do not think you can gain some kind of product protection with an incorrect label of patency without taking into consideration the huge financial implications that go with it.
Law.com: Nathan Myhrvold’s non-practicing entity, Intellectual Ventures (IV), is offering up its patents for rent by companies seeking to defend themselves via counterclaims against those who would bring a lawsuit against them for patent infringement. Verizon Case Marks a First for Patent Holder by Zusha Elinson at The Recorder details this new move by IV to increase the value of their tens of thousands of patents. She writes:
Verizon Communications, which agreed to pay IV as much as $350 million in a 2008 deal, is using one of IV’s patents to strike back at TiVo in a patent fight.
Don Merino, vice president of licensing at IV, said it’s an example of IV taking “a much more customer-centric approach.”
“We want to figure out how to get out of the, ‘I win, you lose’ to a much more collaborative, ‘We both win,'” said Merino.
This is new talk from IV, whose secrecy and vague business plans caused big tech companies to worry in the past about what exactly IV was going to do with all of its intellectual property.
Well, now they know! IV is going to make its growing tech portfolio of patents a kind of mercenary IP soldier for hire tp the highest bidder. Read all about this recent shift, and how one company is influencing Myhrvold’s decisions, in the rest of Elinson’s piece via the link above.
ZDNet – UK: Here’s an eye-catching paragraph about the escalating battle between major smartphone players and upstart companies such as HTC, with deep patent portfolios taking on the role of ICBMs to blow away the competition:
These weapons of the IP cold war have not gone away. They are poorly forged, indiscriminate and dangerous. Despite Apple’s use of them on a hardware maker, they could easily be extended in one form or another to other manufacturers, other operating systems, even entirely different devices. If any of HTC’s partners with a lot of IP to their name decide to strike back, escalation could be hard to control.
Or, if you like, the author offers up a second take on what’s happening in the heavily cross-licensed smartphone ecosphere:
If you can stand the sight of big companies claiming moral superiority while spitting in each other’s soup, it’s even entertaining. Think of it as a natural history programme with silverback gorillas ripping chunks out of each other before reaching an understanding over how to divide the females and foliage.
As Apple prepares to meet HTC head-on with a significant legal effort to prove infringement on a number of important patents, the smartphone marketplace, and Google, are holding their collective breath waiting to see if Apple will be able to force HTC to stop importing its new Android smartphone. Read all about it in Apple’s HTC attack is a very dangerous game.
TechDirt.com: There’s news today of a Supreme Court ruling that could affect the intellectual property rights of freelance authors. Mike Masnick has his finger on the pulse of the issue with his related piece, Supreme Court Says Courts Still Have Jurisdiction Over Unregistered Copyrights. He offers these thoughts for the gentle reader on the Supreme Court’s take:
…[C]ontrary to what the Appeals Court had ruled, it is perfectly fine to include unregistered copyrights in the court’s jurisdiction. While some are reporting that this means you no longer need to register to sue, I don’t think that’s what the ruling is actually saying. It simply says that just because you haven’t registered, it doesn’t mean that it’s outside of the court’s jurisdiction. So it sounds like this means that unregistered copyrights can get included in a settlement/class-action lawsuit like this one, but the holders of those unregistered copyrights might still have difficulty (or great limits) should they try to bring the lawsuit directly themselves.
Masnick calls for opinions by experts in the field of copyright law to weigh in via the comments section of his piece. Maybe an Innovators-Network member could offer some assistance?