Friday, October 27, 2006

Structured Claim Drafting [Patent Law Principles]

Stephen Becker has a useful technique for improving the quality of your claims. (Article).

1. List the elements sought to be protected and their interrelationships.
2. Analyze each element asking:
a) Is the element necessary for preserving functionality?
b) Is the element needed to distinguish over the prior art?
c) Can the element be generalized in a way that retains claim novelty?
d) Can elements be combined in a way that retains claim novelty?
3. Review the entire claim, discarding any words not absolutely necessary for functionality or novelty.
According to Stephen:
Sanitizing the wordage, generalizing terminology and combining claim elements will improve the likelihood of literal infringement, because a competitor will find it more difficult to argue persuasively that a claim element is missing, from its competitive product or service.

Certiorari Petition Granted in Microsoft v. AT&T

On October 27, 2006, the U.S. Supreme court granted Microsoft's petition for a writ of certiorari in Microsoft Corp. v AT & T Corp., No. 05-1056, proceedings below, AT&T Corp. v. Microsoft Corp., 414 F.3d 1366 (Fed. Cir. 2005). The questions presented in Microsoft's Brief are:

"(1) Whether digital software code – an intangible sequence of ‘1's’ and ‘0's’ – may be considered a ‘component[] of a patented invention’ within the meaning of Section 271(f)(1); and, if so,
"(2) Whether copies of such a ‘component[]’ made in a foreign country are ‘supplie[d] ... from the United States.’"
According to Harold C. Wegner, author of "A Foreign Square Peg in a Domestic Round Hole: The Eolas-AT&T-Carbide Trilogy," Hot Topics in Patent Law, George Mason University School of Law, July 18, 2006, Arlington, Virginia (available at, in asking for grant of certiorari, the United States government stressed the anti-American result of the Federal Circuit’s decision has on the domestic software industry:

Under the court of appeals’ decision, companies that design software in the United States cannot distribute their software abroad without running the risk that they will be compelled to pay royalties under United States patent law with respect to all of their foreign sales. Their foreign competitors, by contrast,
run no such risk of global liability under United States law, because they are exempt from application of Section 271(f) with respect to their foreign conduct.

As a result, United States software companies will find themselves at a substantial competitive disadvantage in foreign markets, and may even be foreclosed from competing in those markets altogether. That disadvantage will harm the software sector of the American economy and could ultimately compel
some software companies to relocate their research and development operations abroad. Moreover, the logic of the court of appeals’ decision could be extended to other high-technology industries.

Wednesday, October 25, 2006

IBM vs. Amazon – 5 Patents Threaten The Online Retailer [US]

With IBM's filing of two patent infringement lawsuits against today, there's sure to be a bevy of litigators brought in by Amazon to uncover chinks in the enforceability of IBM's five patents. In Amazon's defense, they will be looking a patent quality – or more precisely, looking for elements of the patents that are arguably of "poor quality".

In response to outcry from many companies defending infringement suits that revolve around patents many agree should never have been issued, the US Patent and Trademark Office has endeavored to implement programs to ensure the granting of higher quality patents.

One such program is "The Second Set Of Eyes", a process that requires a second examination professional to review the work of the primary patent examiner.

There is also pending legislation intended to raise patent quality standards, including a provision Post Grant Opposition. This process would allow third parties to review newly granted patents, and provide relevant prior art which, had the patent examiner been privy to, may have caused the patent examiner to disallow the patent. The notion is that if patent applicant knows that their patent will be subject to public scrutiny, they will be more diligent in crafting patents that claim truly novel inventions.

And IBM recently announced a new corporate patent policy that included as two primary tenants:

  • Patent applicants are responsible for the quality and clarity of their patent applications.
  • Patent applications should be available for public examination (taking the lead on the approach of the proposed Post Grant Opposition)

    Ultimately, "patent quality" correlates to "patent value" – either as determined by the licensing revenue that patent may earn during its useful life, or perhaps the ability of a patent to survive opposition or invalidity challenges in order to preserve or enhance a company's monopolistic market position.

    With all this effort to ensure patent quality, the definition of "patent quality" still remains elusive. But one such measure is a qualitative analysis of patent quality using statistical processes.

    PatentCafe, a provider of an advanced technology international patent search engine, and patent analysis software tools, took a look at the patents central to the IBM / Amazon litigation to see whether there are obvious quality issues.

    The Patent Factor Index Report is a statistical analysis tool that assesses 20 different quality indices, looking separately at legal, commercial and technology factors. Using its Patent Factor Index Reports, PatentCafe analyzed the five IBM patents being asserted against (click on any patent to download the full Patent Factor Index Report):

  • US 5,796,967 - Presenting Applications in an Interactive Service
  • US 5,442,771 - Storing Data in an Interactive Network
  • US 7,072,849 - Presenting Advertising in an Interactive Service
  • US 5,446,891 - Adjusting Hypertext Links with Weighted User Goals and Activities
  • US 5,319,542 - Ordering Items Using an Electronic Catalogue

    "The "quality" of a patent has many dimensions, and the perspective of the quality of a patent changes depending on who's looking at it," says Andy Gibbs, PatentCafe Chief Executive Officer. "If we compare patent analysis to car-shopping, we’d see that a small, gas-miser car would earn a "high quality" score by a cost-conscience commuter, but a Ferrari would be considered "high quality" to someone who wanted speed at any cost. PatentCafe's PFI Reports take subjectivity out of patent analysis, and provide an objective score of the various qualitative elements."

    PatentCafe's PFI Reports statistically analyze 20 different quality factors, and provide a weighting of each factor compared to the 100 most closely related patents. The results are not necessarily absolute, but rather highlight potential strengths and weaknesses in the legal, commercial and technology areas.

  • The PFI Reports will show a variation of quality – from relatively weak to relatively strong. Overall, all of IBMs patents score 500 or better (out of 1,000). High commercial quality can offset lower technology quality, or poor technology quality maybe offset by very strong legal quality.

    The following scoring charts show how the scores of the factors vary, contributing to the overall quality of each of IBM's patents.

    Will statistical patent quality analyses replace humans?

    Gibbs says "In a world where more information is required faster, statistical patent analysis helps cut down weeks of traditional front-end patent review work to just a few minutes – something that we'd expect a tool to do."

    Humans will never be eliminated from the patent analysis formula. PFI Reports are a fast method to identify the elements of a patent that may be extraordinarily high – or low. Then it's time for licensing professionals or litigators to start dissecting the claims, the patent specification, and file wrappers.

    But, from that point, it comes down to how skillful the litigators are in clearly presenting the patent quality information to a jury.

    IBM Files Patent Infringement Lawsuits Against [US]

    Two infringement lawsuits filed on October 23 [2006] by IBM (NYSE: IBM) against, Inc. (NASDAQ: AMZN) pit Big Blue's huge R&D investments against's online retail business model where consumers can buy almost anything with just "One Click".

    The lawsuits seek unspecified damages, and come after nearly four years of attempts by IBM to resolve its concerns with over infringement of IBM's patents. The suits were filed in two District Courts for the Eastern District of Texas: one suit in the Tyler Division and the other suit in the Lufkin Division (Download copy of complaint).

    Dr. John E. Kelly III, senior vice president of IBM Technology and Intellectual Property said "We filed this case for a very simple reason. IBM's property is being knowingly and unfairly exploited. … Everything we do is premised on the fundamental principle that IBM's intellectual property is one of our core assets, and represents the work product of tens of thousands of scientists and engineers and billions of dollars of investment."

    IBM believes that's entire business model is built on IBM's patents. The patents that IBM said has willfully infringed include:

    1. US 5,796,967 - Presenting Applications in an Interactive Service: relates to how Amazon presents, and navigates between, interactive applications.
    2. US 5,442,771 - Storing Data in an Interactive Network: relates to the way in which Amazon stores application data in a network.
    3. US 7,072,849 - Presenting Advertising in an Interactive Service: relates to methods Amazon is using to present and store advertising in a computer network.
    4. US 5,446,891 - Adjusting Hypertext Links with Weighted User Goals and Activities: related to how Amazon uses hypertext links to make recommendations to a user.
    5. US 5,319,542 - Ordering Items Using an Electronic Catalogue: relates to how Amazon enables customers to electronically order goods from an electronic catalog.

    For a closer look at IBM's patents, see "IBM vs. Amazon – 5 Patents Threaten The Online Retailer"

    Steve Roth, Consulting Attorney to IBM said that licensing discussions with Amazon began in September 2002. was contacted more than a dozen times about (delete on) the infringement, but has shown no willingness to have meaningful discussions.

    Roth told IPFrontline: "It's important for juries to fully understand the technology and claims of the patents in a lawsuit. In order to prevent the technologies and claims of all five patents from overwhelming one jury, IBM filed two separate lawsuits. Both lawsuits were filed in the Eastern District of Texas, with the first lawsuit relating the '967, '771, and '849 patents filed in the Tyler Division, and the second lawsuit relating to the '891 and '542 patents filed in the Lufkin Division."

    According to IBM, many companies have already licensed these patents in "field of use" patent licenses, but citing confidentiality agreements with the licensees, would not disclose those licensees.

    Gail Zarick, Intellectual Property Counsel for IBM told IPFrontline that "IBM spends about $6 billion in R&D each year, and we've had more U.S. patents than any other company in the world for each of the past 13 years. IBM has a responsibility to its shareholders to ensure that it realizes a benefit from this huge R&D investment."

    In addition to its responsibility to its shareholders, IBM, which received about $1 billion in intellectual property income last year (delete about $1.7 billion verify in patent licensing revenue last year), also has a responsibility to other licensees.

    Zarick notes that failure of IBM to "enforce our patent rights would be a discredit to those who have fairly and lawfully taken these licenses", and that the current litigation is consistent with IBM's commitment to protect the intellectual property derived from its substantial R&D investments.

    So is IBM enforcing "pure business method" patents? Zarick says that the five patents being asserted are not pure business methods since they do claim innovations of "technical merit. These high quality patents are the result of IBM's substantial R&D investment".

    IBM has recently taken a leadership position in developing and sponsoring innovative policies supporting improved patent quality, collaborative innovation, and patent commons.

    In January, 2005, IBM pledged 500 software patents freely available to anyone incorporating those patents into Open Source projects such as the Linux operating system.

    And this past September, IBM announced a new, groundbreaking corporate policy governing the creation and management of patents. Two notable provisions of IBM's new patent policy are:
    - Patent applicants are responsible for the quality and clarity of their patent applications, and
    - Pure business methods without technical merit should not be patentable.

    Patent infringement lawsuits typically take years, sometimes even a decade or more to resolve, so its likely that you'll be clicking more than once on updates to these lawsuits ... maybe until your finger turns Blue.

    Tuesday, October 24, 2006

    Court Defines Procedure for Determining Arbitrability [US]

    In Qualcomm Incorporated, et al. v. Nokia Corporation, et al. (October 20, 2006), the Federal Circuit considered what inquiry the district court should perform in order to be "satisfied" under section 3 of the Federal Arbitration Act as to the arbitrability of an issue before ordering a stay.

    Section 3 of the Federal Arbitration Act, 9 U.S.C. § 3, provides:
    If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.
    The Federal Circuit concluded that, in order to be "satisfied" of the arbitrability of an issue pursuant to section 3 of the FAA, the district court should first inquire as to who has the primary power to decide arbitrability under the parties’ agreement.

    If the court concludes that the parties clearly and unmistakably intended to delegate the power to an arbitrator, then the court should also inquire as to whether the party’s assertion of arbitrability is "wholly groundless." If, however, the court concludes that the parties did not clearly and unmistakably intend to delegate arbitrability decisions to an arbitrator, the general rule that the "question of arbitrability . . . is . . . for judicial determination" applies and the court itself should then undertake a full arbitrability inquiry in order to be "satisfied" that the issue involved is referable to arbitration.

    In this case, the parties clearly and unmistakably intended to delegate arbitrability questions to an arbitrator as evidenced by their incorporation of the AAA Rules into the 2001 Agreement. The remaining question is whether Nokia’s assertions that its estoppel and license defenses "aris[e] out of or relat[e] to" the 2001 Agreement are "wholly groundless." On remand, the court should not undertake to determine whether Nokia’s assertions are in fact arbitrable, but rather should merely determine whether Nokia’s assertions of arbitrability under the 2001 Agreement are "wholly groundless" and, if not, stay the trial of the action to permit an arbitrator to rule on the arbitrability of those issues.

    Accordingly, we vacate the district court’s March 14, 2006 Order with respect to its denial of Nokia’s motion to stay and remand to the district court.

    Friday, October 20, 2006

    Ringtone Prices May Drop Under Compulsory Copyright License

    In a little-known decision of the U.S. Copyright Office that pitted the Recording Industry Association of America (RIAA) against the National Music Publishers Association, Inc., the Songwriters Guild of America, and the Nashville Songwriters Association International, In the Matter of Mechanical and Digital Phonorecord Delivery Rate Adjustment Proceeding, Docket No. RF 2006-1 (October 16, 2006), the U.S. Copyright Registrar concluded that ringtones qualify as digital phonorecord deliveries (“DPDs”) under 17 U.S.C. § 115 and are therefore subject to compulsory licensing.

    The decision of the Copyright Registrar states:

    Ringtones that are merely excerpts of a preexisting sound
    recording fall squarely within the scope of the statutory license, whereas those that contain additional material may actually be considered original derivative works and therefore outside
    the scope of the Section 115 license. Moreover, we decide that a ringtone is made and distributed for private use even though some consumers may purchase them for the purpose of
    identifying themselves in public. We also conclude that if a newly created ringtone is considered a derivative work, and the work has been first distributed with the authorization of the copyright owner, then any person may use the statutory license to make and distribute the musical work in the ringtone. For those ringtones that are covered by Section 115 of the Copyright Act, all of the rights, conditions, and requirements in the Act would apply. For those ringtones that fall outside the scope of Section 115, the rights at issue must be acquired through voluntary licenses.
    The U.S. Copyright Act contains compulsory licensing provisions governing the making and distribution of phonorecords of nondramatic musical works. Section 115 of the law provides that, once phonorecords of a musical work have been publicly distributed in the United States with the copyright owner’s consent, anyone else may, under certain circumstances and subject to limited conditions, obtain a “compulsory license” to make and distribute phonorecords of the work without express permission from the copyright owner.

    The person wishing to make and distribute phonorecords of a nondramatic musical work may negotiate directly with the copyright owner or his or her agent. But, if the copyright owner is unwilling to negotiate or if the copyright owner cannot be contacted, the person intending to record the work may use the compulsory licensing provisions of the copyright law.

    According to Profesesor Patry, "Since the [compulsory royalty rate] amount paid for ringtones may be substantially less than the free market rate, the cost to consumers may go down as to payments to music publishers decrease."

    Wednesday, October 18, 2006

    IP@School - Inventions and Patents

    "Inventions and Patents" is the first publication in WIPO’s new Learn from the Past, Create the Future series, created for school children as future innovators. Geared towards students from 8 to 13 years old, the publication takes the form of a self-contained work-book, which can be photocopied for classroom use. It teaches theory through practice, and IP concepts through case-studies. To play the PCT Detective game, for example, students learn to search patent applications in WIPO’s online PCT database.

    Tuesday, October 10, 2006

    No Double Counting of Patent and Trademark Infringement Damages

    n AERO Products International, Inc., et al. v. INTEX Recreation Corp., et al. (October 2, 2006) the Federal Circuit concluded that an award of both patent infringement and trademark infringement damages in favor of Aero was an impermissible double recovery, and vacated the award of $1 million in trademark infringement damages.

    At trial, Aero sought patent infringement damages in the amount of $3.4 million. This was based upon the testimony of Aero’s damages expert, Mark Alan Peterson, that Aero was entitled to a 15.7% reasonable royalty on $21.8 million in sales of the accused Intex mattress, which would amount to $3.425 million. At the same time, Aero sought trademark infringement damages in the amount of $2.2 million. This was based upon Aero’s contention that defendants had made $2.2 million in profits based on sales of the accused Intex mattresses. Defendants’ damages expert, Roy Weinstein, testified at trial that Intex had sold $22 million worth of accused Intex mattresses, and Intex’s profits were 10.4%, so Intex had made approximately $2.2 million in profits. In short, Aero used defendants’ patent infringement damages calculations in support of its proposed amount of trademark damages.

    According to Circuit Judge Schall,

    The jury awarded Aero $2.95 million dollars for the patent
    infringement—presumably a reasonable royalty as Aero requested—and $1 million in Intex’s and Quality Trading’s profits for the trademark infringement. This was less than the damages that Aero requested—reasonable royalty damages of $3.4 million for the patent infringement and disgorgement
    of Intex’s profits of $2.2 million for the trademark infringement.

    . . . the record demonstrates that Aero based both its patent and trademark damages solely on sales of the accused Intex mattresses. Aero did not rely on any other evidence in support of its trademark damages. In other words, there was no evidence introduced at trial of Intex’s use of the mark "ONE TOUCH" other than in connection with the sales of mattresses that formed the basis for Aero’s patent infringement claim. In short, all of the damages awarded to Aero flowed from the same operative facts: sales of the infringing Intex mattresses. Aero was fully compensated for defendants’ patent infringement when it was awarded a reasonable royalty for patent infringement based on sales of the infringing Intex mattresses. It could not also be awarded defendants’ profits for trademark infringement based on the same sales of the same accused devices. This is the result compelled by Bowers, Catalina Lighting, Junker, Celeritas, and CPG Products. We thus hold that the district court abused its discretion by allowing to stand the jury’s award to Aero of $1 million in trademark damages.

    Finally, we do not think that Nintendo helps Aero. Nintendo stated that, "[p]ut together, selling the cartridges may have been one act, but it was two wrongs [trademark and copyright infringement]." 40 F.3d at 1011. The Nintendo court reasoned that "Congress created two separate statutory schemes to govern copyrights and trademarks; in order to effectuate the purposes of both statutes, damages may be awarded under both." Id. Further, the court reasoned that Nintendo "did not recover the same type of damages under both acts" because it recovered actual damages under the Lanham Act and it elected and recovered statutory damages, instead of actual damages, under the Copyright Act. Id. From our standpoint, the problem with Aero’s reliance on Nintendo is that an award of both patent and trademark infringement damages in this case would be contrary to our decisions in Bowers, Catalina Lighting, Junker, Celeritas, and CPG Products. Under these cases, even though damages are claimed based upon separate statutes or causes of action, when the claims arise out of the same set of operative facts, as is the case here, there may be only one recovery.

    WIPO Moves Forward on Development Agenda, Broadcast Treaty, and Traditional Knowledge

    The Assemblies of the member states of the World Intellectual Property Organization (WIPO) concluded on Tuesday, October 3, 2006. Among other things, the General Assembly agreed to renew the mandate of the Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA) for a further year. The PCDA will hold two 5-day sessions to allow for structured in-depth discussions on all 111 proposals made so far. (For further details of the decision see

    The General Assembly also agreed to convene a diplomatic conference from November 19 to December 7, 2007 to update the rights of broadcasting organizations with a view to concluding a treaty on the protection of broadcasting organizations, including cablecasting organizations. The discussions are confined to the protection of traditional broadcasting organizations and cablecasting following a decision by the May 2006 session of the SCCR to examine questions of webcasting and simulcasting on a separate track. For more information please see

    Member states also expressed their commitment to advancing the work of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) and underlined the importance of accelerating the committee’s work and generating tangible results. The mandate of the IGC was extended for two years by the WIPO General Assembly at its 2005 session. The renewed mandate, in line with the General Assembly’s 2003 directions to the IGC, excludes no outcome, including the possible development of an international instrument or instruments in this field. Member states also welcomed the implementation of the Voluntary Fund established at the 2005 General Assembly to finance the participation of representatives of accredited observers representing indigenous and local communities. The Voluntary Fund has attracted a number of pledges which promise to make it operational in time for the December meeting of the IGC (for background information on the Voluntary Fund please see

    Friday, October 06, 2006

    An Introduction to the Big Tent Theory of Intellectual Property

    According to Professor Richard Epstein's keynote address at the The Progress & Freedom Foundation's 2006 Aspen Summit entitled "The Structural Unity of Real and Intellectual Property," there is one obvious difference between real property and intellectual property that helps explain the key trade-offs between rewarding creation and protecting dissemination:

    In the real estate situation, if the law creates strong and perpetual rights, it's not going to hamper the dissemination, because the current owner will have all the proper incentives to decide whether to keep it or to sell the underlying asset. The party who values it most will end up its sole owner. In patents
    and copyrights (but not other forms of IP), if the law bestowed perpetual rights, the exclusionary costs at the back-end are much higher than with real estate because they eliminate the right of other individuals to use those ideas when the marginal cost of the additional use is zero. To be sure, if licenses could be negotiated at zero cost, the usual Coasean solution would
    apply. It would not matter how long the patent or copyright lasted, for the initial legal decision would only have a wealth effect, not an allocative one. But the one point on which there is no disagreement is that these transactions costs are never

    How then should the law take that powerful truth into account? Well, I think the simplest approach is to try to manipulate one and only one variable from the legal regime that governs land
    and chattels, and that's duration. With copyright, the relevant
    period clearly ought to be longer than it is for patents, because no matter how rapidly technological innovation comes, nobody would have been able in the fullness of time to write the Beatles' Help from scratch. That song, like all others, is and will remain unique. In contrast, with the laser, Charlie Townes invented it, but, given the pace of technical knowledge, within two or three years somebody else would have invented it anyhow.

    The patent system moves the whole cycle of innovation forward, so that the closeness of a patent race does not measure the positive innovative effects of the system. Remember, Elisha Gray lost the telephone patent by an eyelash. Had fate intervened, you’d have had the Gray Telephone Company instead of the Bell Telephone Company if he had filed the day before. So if the durability of patents and copyrights reflected this fundamental difference, we would shorten the copyright from its outsized duration today, and paradoxically,
    particularly with respect to pharmaceuticals where patented products are mired in FDA deliberations, lengthen the term for patents.

    But when the dust settled patents would always have a shorter duration than copyright. The ability to focus as much
    of the difference in various forms of property rights to the single variable of duration can only strengthen the parallels that exist across fields on other key attributes. Of course, this point has some unavoidable oversimplification given the problem that the patent law faces with matters of claim definition where the law cannot survey a patentable domain by metes and bounds. But with common sense and some patience, those issues can also be handled.

    I'm not going to introduce the special rules governing the doctrine of equivalents and derivative work at this late moment. I shall just conclude by noting that the key issues on boundaries in intellectual property have some instructive parallels in the law of real property. But those weighty matters will have to wait for another day. Jim DeLong paid me a high compliment when he called me a big tent theorist.

    The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. Click here to see a complete list of all their works on Intellectual Property.

    Google Code Search Indexes Prior Art Software

    Google Code Search indexes function definitions and sample code by giving you one place to search publicly accessible source code hosted on the Internet. It supports POSIX extended regular expression syntax, excluding backreferences, collating elements, and collation classes. You can even submit your code using their online form.

    They're crawling as much publicly accessible source code as they can find, including archives (.tar.gz, .tar.bz2, .tar, and .zip), CVS repositories and Subversion repositories. Google Code Search respects robots.txt, so there are a couple ways you can block them from crawling your code.

    They do their best to determine the software license for code packages by looking for a license in the comments or in a separate license file. If they can't find a license, they indicate that the license is "Unknown." But the Code Search results can't tell you what patents may cover a piece of software.

    Learn more about Google Code Search at Peter Zura's Two-Seventy-One Patent Blog and their discussion group.

    And, if you have not seen it already, Google Blog Search include all blogs, not just those published through Blogger. It is continually updated, and you can search not just for blogs written in English, but in French, Italian, German, Spanish, Korean, Brazilian Portuguese and other languages as well.

    Monday, October 02, 2006

    The European "Circle-T" Symbol [EU]

    In "Semiconductor Chip Protection," the IPR HelpDesk notes that the "circle- T" symbol can be affixed to the products containing a protected semiconductor topography in order to to inform the public that the topography contained in the product is protected. The symbol is generally followed by the date on which the topography was first used and the name of the rightful holder of the topography. It is not obligatory to affix the symbol. In certain countries, national legislation provides for the possibility of affixing this symbol (which is not expressly prohibited by other legislation) for as long as protection is valid.

    In most European countries, semiconductor chip protection requires registration with the relevant national authority (usually the Patent Office) within two years of its first use in commerce. The duration of so-called "topographic rights" in Europe is fixed at 10 years by Article 7 (3) of Directive 87/54 starting from the end of the year when protection started. In France, Portugal, Austria, Denmark, Finland, Germany, Spain, Greece, Italy and Luxembourg, the starting point for protection is the eraslier of
    • "when the topography is first commercially exploited anywhere in the world";
    • "when an application or registration has been filed in due form"; or
    • "when the topography is first fixed or encoded."

    In the UK and Sweden, the starting point for protection is the eralier of

    • "when the topography is first commercially exploited anywhere in the world"; or
    • "when the topography is first fixed or encoded."

    NIPLECC Issues Fifth Annual Report [United States]

    On September 28, 2006 the National Intellectual Property Law Enforcement Coordination Council (NIPLECC) released its 2006 Report to the President and Congress on Coordination of Intellectual Property Enforcement and Protection.

    The NIPLECC was established in 1999 to bring together the leaders of the key operational entities within the federal government that are responsible for IP enforcement, providing the infrastructure that supports the Administration’s efforts. The Council includes the Office of the U.S. Trade Representative; the Department of Commerce – including the U.S. Patent and Trademark Office and the International Trade Administration; the Department of Homeland Security, which includes U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement; the Department of Justice; and the State Department. The U.S. Copyright Office serves in an advisory capacity.

    Highlights of their 2006 report include
    • The Commerce Department is expanding its education and capacity building programs through the Global IP Academy located at the USPTO.
    • The Commerce Department is continuing to expand its IP attaché program in China and positioning new regional attachés in Brazil, Russia, India, Thailand and the Middle East.
    • Since 2001, the Department of Homeland Security has initiated more than 31,000 seizures of counterfeit products with an estimated retail value in excess of $482 million. Seizures of fake and counterfeit goods at America’s borders have doubled since 2001.
    • The Department of Homeland Security deployed an online recordation tool for rights holders to record their trademarks and copyrights with CBP. Recordation provides a higher level of protection for trademarks and copyrights and makes it easier for DHS to identify fake goods at our borders.
    • The Department of Justice created five new Computer Hacking and Intellectual Property (CHIP) units in the U.S. Attorney’s Offices in Nashville, Orlando, Pittsburgh, Sacramento, and Washington D.C., bringing the total number of specialized units to 25. DOJ also increased the total number of CHIP prosecutors nationwide to 230. In districts with CHIP units, the number of defendants charged with federal IP crimes climbed from 109 in FY2004 to 180 in FY2005 – a 65% increase. Over the past 5 years, approximately half of all defendants convicted of federal intellectual property crimes in the United States received some amount of jail time.