IPcentral Weblog: August 2006 Archives

August 2006 Archives

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08.30.2006

Predicting Fair Use

Perhaps the only doctrine of copyright law its critics love is that of fair use.

Professor Barton Beebe from Cardozo law school recently presented his statistical research on 271 opinions from the federal courts between 1978-2005 which made “substantial use of the Section 107 four-factor test for copyright fair use.” The goal of Professor Beebe’s work is to find how the four factors are weighed, how they interact and drive the outcome of cases. The cases included seven from the Supreme Court, 77 from appellate courts and 187 district courts. 21% of the opinions addresses motion picture or television mediums, 12% of opinions between 1990-2005 involved computer software and 12% involved the Internet.

Professor Beebe states: its “unclear whether fair use win rates” should be “considered disappointingly low or reasonably high.” 29% of 41 preliminary injunctions found fair use, while 31% of bench trials did. 83% found no fair use in the 23 where plaintiffs sought summary judgment with no cross-motion by the defense. Of 34 cases where defendants sought summary judgment, 77% found fair use.

Here is a summary of the four-factor fair use test in fair use and general conclusions of the presentation for each:

1. Purpose and Character of Use: has a strong correlation with the overall outcome of the test.
2. Nature of the Copyrighted Work: a relatively large % of cases did not consider this factor or found it irrelevant.
3. Amount and Substantiality of the Portion Used: nearly all opinions that gave this factor to the defendant eventually ruled for it.
4. Effect on the Market: this factor is “nearly decisive” in all cases, with a slightly higher correlation with the plaintiff.

Continue reading Predicting Fair Use . . .

posted by Noel Le @ 4:03 PM | Access: Commons, Fair Use, Orphan Works, Public Domain , DMCA

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Patents and Development

John Lauerman of Bloomberg news reports that poor countries are hoping to patent strains of the bird flu, in the hope of using the patents as a bargaining chip in negotiating lower prices for vaccines and treatments.

Continue reading Patents and Development . . .

posted by Solveig Singleton @ 1:42 PM | Patents

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08.29.2006

Foreign JVs and FDI

The creation of R&D centers by American companies in the BRIC economies and other areas is accompanied by concerns for protecting valuable IP assets. Organizationally, companies can modularize IP sensitive R&D between different facilities, thereby limiting the amount of valuable information mis-appropriable in any one facility. They can invest little and limit the scope of R&D in the foreign country. Or, firms can work with the host government for gradual changes in local laws. Another approach studied by several European scholars Alireza Naghavi and Dermot Leahy, is to shape the way in which American companies, and multinationals from other countries, choose to serve a market. IPRs and Entry into a Foreign Market: FDI vs. Joint Ventures (June 2006). FEEM Working Paper No. 97.06.

Firm… assets may be knowledge based and can be protected by a patent. The patent …creates incentives for it to move to a foreign market. 2.

When an enforcement mechanism to protect patents is absent in the target country, the firm’s desire to protect its knowledge based assets can influence how (if at all) it chooses to enter that foreign market. 2.

Continue reading Foreign JVs and FDI . . .

posted by Noel Le @ 5:33 PM | International

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Thats an Obvious Patent, Duh

Computer World New Zealand reports of an "open source victory" over Microsoft on a patent related to XML technology after Microsoft made "changes to its patent" following presentation of prior art uncovered by the New Zealand Open Source Society.

My opinion on the specific patent aside, this is a good development, an example of an open source group using existing policy infrastructure to effect its goals: to unmask obvious patents (and everyone I know dislikes obvious patents). Even more, its an example of a private party's ability to curb concerns on stifled innovation from obvious patents under current patent policies, thereby dispelling the myth that software patents will cause the technology industries to implode unless there are fanatical and unconsidered changes such as eliminating software patents altogether.

The patent will no longer cover the XML file formats that Microsoft is using and therefore anyone is free to interoperate with Microsoft file formats without fear of patent litigation from this particular patent.

The Microsoft patent in question "governs word processing document[s] stored in a single XML file that may be manipulated by applications that understand XML”. With modifications to the patent, the open source group inis no longer concerned about using the relevant technology. A Computer World reports quotes a representative:

Microsoft made “significant changes” so that the prior art the society uncovered, primarily in the form of word processor Abiword’s handling of XML, would no longer apply.
...(following the amendment) templates stored in binary blocks inside the document were now a required feature to infringe the patent.

The open source group stated that it may pursue similar action in the future to prevent obvious patents from harming "open source and the software industry."

posted by Noel Le @ 1:07 PM | Patents

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The Market is Ever Less Nascent

My latest in an ongoing series on the nascent digital media market leads us to the Financial Times, which discusses Universal Music's plan to give away songs and rely on ad revenues. Users can download unlimited numbers of songs from the world's largest music company to their computer and one device, and must check in once a month to keep access to the songs. This suggests a DRM technology such as Janus, the Microsoft format used in my Napster to Go service. This means the CopyLeft still won't be satisfied with this; they want music at marginal cost (zero) with no DRM. Well, Universal doesn't really care about the CopyLeft, they care about consumers, and we'll see how this latest model plays with them. My hope is that artists will see appropriate compensation from this model.

posted by Patrick Ross @ 11:29 AM | Markets: Business, Investment & Innovation

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All the KSR Briefs you ever wanted

From Dennis Crouch's site, Patently Obvious...Dennis Crouch’s website, Patently O, all the KSR v. Teleflex briefs. And more. Many comments, for example, addressing the question of hindsight in detail.

Most of the patent bar's experience is with filing, rather than with litigating cases. (This is true simply because so many more patents are filed than are ever litigated). As I noted in our brief, this gives their vast experience a dimension that might--and might not--skew their arguments about obviousness in the direction of predictability, familiarity, and ease of application for the filing claimant. But this is not necessarily the best angle from which to approach the question of the best rule to be applied once the patents get to court. So solve the problem of hindsight at the PTO some other way (I don't mean apply some other legal standard, that wouldn't make sense, rather, I mean some other institutional device or methodology in the absence of ready access to real-life PHOSITA's).

posted by Solveig Singleton @ 7:39 AM | Patents , Supreme Court

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08.28.2006

"Children of the Lessig God"

Entertainment lawyer Chris Castle has a brilliant posting on Sweden's Pirate Party here.

posted by Amy Smorodin @ 3:36 PM | Access: Commons, Fair Use, Orphan Works, Public Domain , Free Culture Movement , Internet: P2P, Search Engines...

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Duffy on the Non-Obvious Doctrine

At a recent IP conference, Professor John Duffy, a former physicist, spoke about the origins, evolution, function and importance of the non-obviousness doctrine in American patent law.

The non-obvious doctrine shapes many issues surrounding patenting standards and patent quality. The topic of non-obviousness is central in the current KSR v Teleflex heading to the Supreme Court, and in disputes between commercial and free software supporters on the effects of software patents. Those of you with inclination and ability in the liberal arts can review Professor Duffy's extensive historical account of international patent law (and feel free to post your reading notes as comments:). Here is what Professor Duffy has to say about the non-obviousness doctrine, and other aspects of patent law, in modern innovation.

The (non-obviousness) doctrine is widely understood to be so fundamental to the proper functioning of the patent system that it can be accurately described as the “final gatekeeper of the patent system,” the “ultimate condition of patentability,” and “the heart of patent law.”

Continue reading Duffy on the Non-Obvious Doctrine . . .

posted by Noel Le @ 2:31 PM | Patents

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The FTC Spanks Rambus

Thanks to Greg Aharonian for the link to the FTC's material on Rambus, for naughtily trying to sneak patented tech into a standard:

"Rambus withheld information that would have been highly material to the standard-setting process within JEDEC. JEDEC expressly sought information about patents to enable its members to make informed decisions about which technologies to adopt, and JEDEC members viewed early knowledge of potential patent consequences as vital for avoiding patent hold-up. Rambus understood that knowledge of its evolving patent position would be material to JEDEC's choices, and avoided disclosure for that very reason."
"Through its successful strategy, Rambus was able to conceal its patents and patent applications until after the standards were adopted and the market was locked in," states the opinion. "Only then did Rambus reveal its patents - through patent infringement lawsuits against JEDEC members who practiced the standard."

Analyzing Rambus's conduct under the standards of Section 2 of the Sherman Act, the Commission found that "Rambus engaged in exclusionaryconduct that significantly contributed to its acquisition of monopoly power in four related markets. By hiding the potential that Rambus would be able to impose royalty obligations of its own choosing, and by silently using JEDEC to assemble a patent portfolio to cover the SDRAM and DDR SDRAM standards, Rambus's conduct significantly contributed toJEDEC's choice of Rambus's technologies for incorporation in the JEDEC DRAM standards and to JEDEC's failure to secure assurances regarding future royalty rates - which, in turn, significantly contributed to Rambus's acquisition of monopoly power."

Since I am skeptical of antitrust concepts generally, I can't help but wonder how this would have played out as a plain old contract suit, assuming the standards-setting body dealt with Rambus on those terms.

And lest this be taken for a screed in favor of excluding patented tech from standards no matter what, I add this

Continue reading The FTC Spanks Rambus . . .

posted by Solveig Singleton @ 1:20 PM | Antitrust , Patents , Standards

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"Copyright is Even More Right in the Digital Age"

I'm back from Aspen now, missing the beauty of Colorado but enjoying the oxygen available at sea level. There's so much one could write about, but I'd like to focus in this entry on our Chairman's Dinner speech featuring Viacom and CBS Corp. Executive Chairman Sumner Redstone. (A stream of his speech is available online.) It was a very impressive speech, and it's not just me saying that -- a leading expert in telecom sitting next to me at the dinner said it may have been the highlight of the conference, a big statement given this individual doesn't work much in intellectual property. A techie who is scarred from the Napster-Grokster wars said that if the wisdom Sumner offered had been put forward then, much of the conflict may have been avoided. I think that's a bit unfair, but it's nice to see the speech appreciated from erstwhile opponents. It's important to me because it seems that Sumner's speech in many ways challenged IPcentral on its more reasonable days.

Continue reading "Copyright is Even More Right in the Digital Age" . . .

posted by Patrick Ross @ 12:17 PM | Big Tent

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08.28.2006

Innovation and Patents, Its Not that Simple

posted by Noel Le @ 9:54 AM | Academia , Markets: Business, Investment & Innovation , Patents

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08.27.2006

Saving the Benefits of DRM

posted by Noel Le @ 11:33 PM | DMCA , DRM & Watermarks, etc.

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