Friday, November 30, 2007

EU To Publish Online Content Rule As Industry Launches IP Standard

The European Commission’s is expected to publish by year’s end a communication on creative content online that will address how to improve the competitiveness of European online content production and distribution industry, European officials said Thursday.

In remarks broadcast at the unveiling of the Automated Content Access Protocol (ACAP) in New York, Viviane Reding, European commissioner for information society and the media, said the online content market in Europe can be developed faster through industry agreements, self-regulation and stringent application of competition policy.

“The uncertainties associated with the shift to digital technologies inhibit the development of many potential online services,” Reding said, adding that moving content online calls for changes in the way content rights are traded and exploited.

The commission’s policy statement will likely lead to a recommendation after consultation with the European Parliament and the member states, said Angela Mills Wade, executive director of the European Publishers Council. The communication will include codes of conduct between policy holders and intermediaries to deal with piracy. The intent is to establish an online content platform concentrating on three areas: access to creative content, multi-territory licensing and digital rights management. It likely will include a European code of conduct on users’ digital rights.

“These are things that have just been left and not dealt with over the last few years,” Wade said. “We’re going to be quite busy in the coming year.”

Reding next week will participate in a publishers’ forum in Brussels to develop some of these themes, Wade added.

An international group of publishers and media groups on Thursday launched ACAP, a standard aimed at protecting the intellectual property of those wanting to make content available on the Internet. Reding said the European Commission is watching ACAP closely, adding it offers possibilities for a “win-win situation for all stakeholders.”

ACAP was developed at the behest of the World Association of Newspapers, International Publishers Association and the European Publishers Council and with the help of search engines as an automated technical solution that allows publishers to express access and use policies in a language that search engines’ indexing software - known as “crawlers” - can be taught to understand. That way, the search engine can comply with the specific policy or licence on how it can use that site’s content.

Currently, search engines like Yahoo and Google voluntarily abide by a Website’s wishes outlined in a text file known as “robots.txt,” which a search engine’s crawler knows to look for as it scours sites. A site can block indexing of individual Web pages, certain directories or the entire site. ACAP wants to have extra commands that could, for example, try to limit how long search engines can retain copies of the site’s indexes.

ACAP members - which include the Associated Press, Recording Industry Association of America and the Federation of European Publishers - hope the tool will encourage rights holders to make their works easily available online while avoiding expensive legal battles between search engines and content providers. Publishers rely on being able to control online distribution of articles in order to charge for the content.

Machines already know how to talk to each other through various communication protocols like TCP/IP - used on the Internet and commercial networks - and Web feed formats. But machines don’t know how to communicate access and use policies. ACAP version 1.0 gives content owners and publishers a way to express those policies in a language that search engine robots and similar automated tools can read and understand.

The ‘big three’ search engines - Google, Yahoo and MSN - have not formally endorsed ACAP but have been involved in discussions.

Joe Siino, vice president of intellectual property at Yahoo, said his company is “very eager at this point to see what ACAP has in store for the future and to learn more about it” but will continue being part of the talks as a third-party only. “We really feel like we have to take a few first steps to get this moving in a way that makes publishers comfortable,” he added.

Siino said it is not likely one solution that satisfies both content owners and search engines will fully develop anytime soon. “It’s hard to know in this industry but I think it’s going to be a multi-year evolution,” he said.

Change your passwords for Computer Security Day [Data Security]

Most people keep the same password for too long and use it for too many purposes. So if you do one thing to mark Computer Security Day, change your passwords. If you do two things, change your passwords and vacuum your computer.

These are among the tips from the US organisers of the global event, including Security Awareness Inc. and the Information Systems Audit and Control Association. Now in its ninth year, Computer Security Day exists to remind people to protect their computers and information.

The day is on 30th November each year and the organisers list 53 ways that offices can participate.

Suggestions include:

  • Check for viruses
  • Protect against static electricity
  • Vacuum your computer and the immediate area
  • Back-up your data
  • Post 'No drinking' and 'No smoking' signs in computer areas
  • Hold a discussion of ethics with computer users


Almost two-thirds of people never change their passwords, according to a survey of 1,800 adults reported by the Department of Trade and Industry in June. One in five people said they use the same password for non-banking websites as well as their online bank. And over one-third recorded their password or security information by either writing it down or storing it somewhere on their computer.

Such behaviour is asking for trouble, according to US security guru Bruce Schneier.

"People should change their online access passwords regularly," Schneier. "The risk is that a password has been compromised, and changing your password regains security."

Microsoft suggests that a password that is shorter than eight characters should be considered "only good for a week or so," while a password that is 14 characters or longer (provided it follows Microsoft's rules and tips for passwords) can be good for several years. Others suggest that you can safely keep a password for 60–90 days as a general rule of thumb.

The HMRC incident has prompted many individuals to take protective steps. HMRC wrote to the families potentially affected by the data loss. Its letter addressed online banking risks and stated: "If your password uses any of your personal data, for example your child's name or date of birth, you may also wish to consider changing any passwords you use."

According to APACS, the UK payments association, 10% of Child Benefit recipients have since changed their online banking passwords. Six percent changed their PINs.

How to choose a new password

Andrew Moloney, a director at security firm RSA who specialises in the financial services market, offers the following tips:

  • "If your password is linked to personal data – e.g. a date of birth or child’s name – it should be changed.
  • The longer a password, the more difficult it is to crack. Thus, make yours of a decent length, say 10 to 16 characters if possible.
  • Replace words for numbers e.g. For = 4, to/too = 2, add punctuation like exclamation marks and change capitalisation
  • Consider using a phrase that includes both numbers and words and use the first letters/numbers from that. An example would be “On the 12 days of Christmas my true love gave to me = Ot12docmtlgtm”. This has a great combination of being hard to guess but easy to remember. That's the ideal scenario."

Amazon surrenders on One-Click shopping monopoly [Patent Law]

In October, the US Patent and Trademark Office (USPTO) rejected 21 of the 26 claims of Amazon's famous patent after an Auckland patent enthusiast, Peter Calveley, produced evidence of prior art. The USPTO indicated at the time that two of the rejected claims could become patentable if they were narrowed. These claims, numbers 1 and 11, were the broadest claims in the patent.

Amazon had an opportunity to fight that decision but has now capitulated. In a conference call on 15th November with USPTO examiner Matthew Graham, Amazon lawyers agreed to amend both claims.

The changes "appear to place the claims in condition of patentability," according to Graham's report of the call. "Further review and search would be required," he wrote in his Re-examination Interview Summary (1-page, 48KB PDF).

The prior art evidence that he presented included a patent for a system called DigiCash, filed one year before Amazon's. That patent describes a system where a user has access to electronic cash to purchase items electronically. The reason that five claims in Amazon's patent withstood the challenge of the DigiCash patent is that the DigiCash patent did not propose a shopping cart ordering component, whereas Amazon did. So the USPTO told Amazon in October that two other claims could survive if they were amended to refer to a shopping cart model.

The changes to claim 1 (1-page, 26KB PDF) and claim 11 (1-page, 15KB PDF) mean that the patent will no longer cover any system for purchasing an item "in response to only a single action being performed". If the amendments are approved the patent will cover only an item "purchasable through a shopping cart model". That means that a payment system that does not also offer a shopping cart will not infringe Amazon's patent.

Calveley wrote in his blog last night that the amendments, if made, "will free people to use pre-Amazon methods of 'one Click shopping' such as DigiCash-type systems" and will "allow people to implement new and exciting ways of shopping with one click, perhaps using new technologies that didn't exist in 1997."

Calveley called the shopping cart model "an old technology that needs to be put to bed."

Tuesday, November 27, 2007

Adler on Patent Quality: Corporate Filers Should Conduct Pre-Filing Search

According to a presentation by IPO President and Rohm and Haas Chief IP Counsel Marc Alder to the Trilateral Users Conference in Washington, DC, on "Quality Patent Examination and Prosecution," in order to ensure quality examination corporate filers should start with a quality search
  • Corporate filers should conduct a pre-filing search citing the most relevant art to the examiner. Applicants should avoid flooding the examiner with cumulative prior art references.
  • Office should fully evaluate this and any other prior art brought to its attention to build a reliable and complete record of examination.

and "end with quality claims:"

  • Corporate filers will measure the quality of granted claims based on claims that:
    – clearly and thoroughly protect all aspects of invention embodied in newly commercialized product or process and defend strategic goals.
    – recite the uses of invention in all appropriate streams of commerce.

Alder also asserts that "patent offices will grant high-quality patents if they:"

  • Insure an independent search and examination
  • Do not depend solely on applicant’s search or analysis
  • Share results with other patent offices in real time
  • Shift examiner incentives toward quality and away from goals based purely on production
  • Encourage pre- and post-first action interviews between examiners and applicants
  • Apply improved quality metrics
  • Rely on meaningful measures that can improve the end result. Share measures with other offices and the public
  • Develop resources to manage new technologies
  • Train examiners in new technologies with the aid of private industry Patent

Call me skeptical, but I would rather know what percentage of Rohm and Haas's patent budget is actually dedicated to comprehensive prior art searching, and how those search results are presented to the persons who actually make the initial decision on whether to file the patent application.

  • Does Rohm and Haas utilize a dedicted patent searching process or organization?
  • Are invention disclosures and search results reviewed in detail by those who will actually have to write the resulting patent applications, before a decision is made on whether to file?
  • Does that anlaysis go so far as to prepare a draft caim for business value justification before the disclosure is sent (to an outside law firm) for preparation and prosecution?
  • Or is the process mostly left to attorneys with other obligations, who, in turn, carefully avoid these significant up-front commitments of time and resources by relying hapless inventors for their information?
  • How does his organization draw the line on such "analysis paralysis" over these relatively small and discrete expenditures, without simply foisting the same problems onto outside counsel and/or the USPTO later in the process, where the issues are much more resource-intensive to address at both the individual and systemic levels?
  • What meaningful measures does his organization use to improve the end result?
  • Is there accountability for failure to obtain the initially justified scope of protection?
  • And just how does Adler prevent his own business organization from obsessing over the same two internal production metrics (numbers filed and cost) as everyone else?

Now those are some questions that would would make for an interesting presentation, and a lightning rod for debate!

Get more of Adler's dos and dont's for patent quality here.

What is Inventorship?

According to "Determining Inventorship for US Patent Applications," by Patrick Gattari, the following points should help in an inventorship determination:
An inventor is:

• A person who conceives the subject matter of at least one claim of the patent.
• Two or more persons who collaborate to produce the invention through aggregate efforts.

An inventor is not:

• Someone whose only contribution is reducing an invention to practice by exercising ordinary skill in theart.
• A technician who simply performs experiments or assembles the invention.
• The supervisor or department manager of the person who conceived the invention.
• Someone whose only contribution is an obvious element to the invention.
• Someone whose only contribution is participation in consultations about the invention before or after conception of the invention.
• A person who only conceives of the result to be obtained but not the idea of how to achieve it.
• A person who only discovers the problem (unless he contributes to the solution).
• A person who merely provides a suggestion or improvement but who does not
work to fit the suggestion or improvement into the invention.
• A second inventor of the subject matter of the invention who did not collaborate with a first inventor ofthe subject matter of the invention.

Electronic Discovery: Notes for the Firm

Last December's revisions to the Federal Rules of Civil Procedure, addressing discovery of electronically stored information, underscored the fact that no lawyer today can afford to ignore e-discovery. No matter the case, no matter the court, digital data is likely to be implicated.

That means lawyers urgently need to understand electronic data discovery and keep abreast of developments in the field. In this month's column, the first of two parts on EDD, we look at some of the more useful Web sites for learning about and keeping current with this essential area of practice. Next month in part two, we will survey EDD blogs and look at some vendors' sites that include useful resources.

Getting Started

For all it offers may be the leading e-discovery portal. Even though the site's sponsored by EDD vendor Fios Inc., it forgoes commerce in deference to its mission, which is to provide news, information and resources. Through both original content and outside links, the site provides timely news stories, substantive articles, tutorials, seminars, podcasts, legal forms and other tools.

Another useful entry point to resources on e-discovery is the American Bar Association's Legal Technology Resource Center. The site devotes a section to courtroom technology and, within that, a guide to EDD resources. While not extensive, the guide is a good starting point.

If you want to know what federal judges know about e-discovery, you will find no better source than Ken Withers. In his former role as education attorney for the Federal Judicial Center, Withers taught judges about EDD and technology. Now director of judicial education for The Sedona Conference, Withers' personal site archives his many articles and presentations, discusses EDD rule making, and provides links to resources elsewhere on the Web.

California lawyer Richard Best started posting his civil discovery outlines on the Web in 1999 and has continued to update them ever since at California Civil Discovery Law. From his home page, follow the "electronic data" link for his extensive collection of resources covering state and federal e-discovery, as well as related issues such as EDD ethics.

The Electronic Evidence Information Center is a fairly modest collection of links to resources and conferences relating to e-discovery and computer forensics. Worth noting is the site's page collecting links to mobile phone forensics tools.


The rapid growth of EDD in recent years has often left the horse trailing the cart. A number of organizations are now working to develop standards and practices with the goal of harmonizing e-discovery across courts and industries.

A leader in this research is The Sedona Conference, a nonprofit organization devoted to innovation in antitrust law, complex litigation and intellectual property law. It has devoted substantial work to the establishment of best practices in e-discovery. In June 2007, it released the second edition of The Sedona Principles on e-discovery. This document and many others are available through the Sedona site.

Given its goal of enhancing the administration of justice, the National Center for State Courts is immersed in issues surrounding e-discovery in state courts. In August 2006, it published an extensive set of e-discovery guidelines for state trial courts, which is available as a download from this site. Elsewhere, the site compiles research and resources on e-discovery and houses a variety of articles on the topic.

Directed by legal technology consultant Tom O'Connor (a member of LTN's Editorial Advisory Board), the Legal Electronic Document Institute is a nonprofit organization devoted to the development of education and standards related to legal electronic documents. Its areas of focus include practice management, electronic trial practice and litigation support, e-filing, e-signatures and e-discovery. Similarly, the Electronic Discovery Institute describes itself as a public-interest organization conducting research into the efficacy of various methods of e-discovery. According to the site, the institute's inaugural study is underway, testing the reliability of search and retrieval technology. Once completed, the study will be published here.

While the foregoing entities focus on EDD practices, Socha Consulting takes a different tack with its annual Socha-Gelbmann Electronic Discovery Survey. Think of it as the Consumer Reports of EDD vendors. The survey ranks the top e-discovery companies and provides information on many others. The full survey is pricey -- $5,000 for 2007 -- but a free summary is published each August in Law Technology News. Socha's site includes various free resources as well.

From the publishers of the Socha-Gelbmann survey comes this related site, The Electronic Discovery Reference Model. The site originally was devoted to development of a model set of standards and guidelines governing EDD. With the model now in place and in the public domain, the site focuses on its deployment.

EDDix is a company devoted to research, analysis and reporting on e-discovery. The "ix" in its name stands for "information exchange." Through this site, it sells various publications containing its research and also provides links to news and resources relating to e-discovery.


A number of sites house original news stories, practice pieces, white papers, seminar presentations and other materials devoted to e-discovery. Legal Technology, for example, maintains a useful section devoted to EDD. It features news articles and expert commentary written for the site and drawn from legal newspapers and magazines. An "E-Discovery Road Map" lets you navigate your way through steps in the EDD process and learn about requirements and best practices. ( is a sibling entity to LTN.)

Readers of LTN know Craig Ball for his award-winning column here. Ball is a board-certified trial lawyer and a certified forensic examiner -- a combination that qualifies him as an EDD consultant -- and prolific writer on e-discovery and computer forensics. His Web site collects his column, with a variety of his articles and presentations. has long been a superior site for articles and resources on law technology and practice. From its main page, click on "E-Discovery" in the right-hand navigation column or use the site's search feature to find a library of articles and updates covering e-discovery.

A collection of EDD materials from the Federal Judicial Center can be found by following the "materials on electronic discovery" link from its front page. The collection focuses on civil litigation and includes FJC workshop and seminar materials, research and publications, along with links to selected external materials. A link points to a separate page of materials focused on search and seizure of electronic data in criminal cases.

FindLaw's Electronic Discovery Center provides substantive articles and white papers on e-discovery along with vendor press releases. An "EDiscovery Wizard" provides checklists and links to articles regarding specific provisions of the federal rules.

Law Journal Newsletters, a division of ALM, publishes the newsletter E-Discovery Law & Strategy, which can also be reached through LTN's site. Subscribers can view the full text of articles as well as download the entire newsletter in PDF. Nonsubscribers can view article summaries and purchase individual articles.

Michael Arkfeld's book, "Electronic Discovery and Evidence," is a leading treatise. The book is available for purchase through Law Partner Publishing. Purchasers get password-access to Web-only resources available here, including updates, forms and checklists.

A unique EDD resource is the Litigation Support Vendors Association. This site is home to multiple, free discussion forums covering such topics as e-discovery, computer forensics and best practices. All are moderated by industry experts and representatives of legal-technology companies. Also posted here are jobs within the litigation support industry.

Electronic Discovery: Blogs and Tools [International]

Of the 19 blogs surveyed here, some focus on e-discovery law and practice and others on the e-discovery industry, but all are potentially useful for keeping current with the field.

Alextronic Discovery. Alexander Lubarsky, the California litigator who writes this blog, admits to a bit of writer's block lately, but vows to pick up the pace of his postings. If he does, his blog is worth following.

Dennis Kennedy. Lawyer and consultant Kennedy writes about a range of legal-technology topics and frequently covers e-discovery.

EDD Blog Online. Written by Jeff Fehrman, president of Electronic Evidence Labs, a division of vendor ONSITE3, and consultant Bob Krantz, this blog promises an "insider's look" at e-discovery. Many of the posts are excerpts of articles from other sources.

EDD Update. Unveiled in September as a joint project of Law Technology News and Legal Technology, this blog is a venue for posting breaking news, key verdicts and judicial rulings, articles, press releases and more. It features a board of contributors that includes leading lawyers and consultants in the field -- and also me.

E-Discovery and Computer Forensic Blog. The blog of a Los Angeles e-discovery company, many posts are full-text articles from other sources.

E-Discovery in the Trenches. When he launched this blog in April 2007, Jerry Bui, an e-discovery manager with KPMG, dedicated it to those who work "directly in the trenches on EDD projects." Since May, he has posted nothing new.

E-Discovery Team. Ralph Losey, co-chair of the e-discovery team at the law firm Akerman Senterfitt in Orlando, Fla. writes this top-notch blog. His posts are frequent and substantive, covering both EDD law and practice.

E-discovery 2.0. Subtitled, "Thoughts about the evolution of e-discovery," this blog is written by Aaref Hilaly, CEO of e-discovery company Clearwell Systems Inc.

Electronic Discovery and Evidence. Michael Arkfeld, author of the treatise, Electronic Discovery and Evidence, uses this blog to report updates in the law of e-discovery, although his postings are infrequent.

Electronic Discovery Blog. Before he became an attorney, the author of this blog, W. Lawrence Wescott II, was an IT manager, a background that enables him to write knowledgeably about both law and technology.

Electronic Discovery Law. Technology lawyers at the firm K & L Gates write this blog that includes summaries of court decisions and updates on related legal issues.

Information Governance Engagement Area. Rob Robinson, a marketing veteran who has worked with several EDD companies, maintains this blog as somewhat of a clipping tool for aggregating e-discovery news.

In re Discovery. It's the blog of Socha Consulting, the firm that publishes the annual Socha-Gelbmann Electronic Discovery Survey (see part one, October).

LawTech Guru Blog. A well-known writer on a range of legal technology issues, Jeff Beard frequently blogs about new developments in e-discovery.

Litigation Support Industry News. This blog tracks news about the companies that provide litigation support and EDD services. It is written by Brad Jenkins, president and CEO of Trial Solutions of Texas.

On the Mark. Launched in October 2007, this is the blog of Mark Reichenbach, a vice president at MetaLincs and two-decade veteran of e-discovery and litigation support for companies and law firms. In his blog, he comments "on the issues and happenings of our industry."

Ride the Lightning. The author of this blog, lawyer Sharon Nelson, is president of computer forensics company Sensei Enterprises Inc. and a widely known speaker and writer on legal technology. She introduced her blog in July 2007 with the goal of helping readers better understand electronic evidence.

Sound Evidence. One of the best known e-discovery blogs, it is written by Mary Mack, technology counsel to e-discovery company Fios Inc. and co-author of the book, "A Process of Illumination: The Practical Guide to Electronic Discovery."

Strategic Legal Technology. Lawyer and legal technology consultant Ron Friedmann writes about e-discovery, litigation support, knowledge management and other technology topics.


A number of companies that market e-discovery services also provide useful resources on their Web sites.

In part one of this article, I described, an e-discovery portal sponsored by the company Fios.

The company's main site at provides an array of resources in its own right, some that overlap with its other site and some that do not.

Other companies whose sites include useful resources for lawyers include:

Applied Discovery. This LexisNexis division offers the Applied Discovery Law Library, a surprisingly diverse selection of case summaries, model forms, articles and white papers. Worth noting is the library's collection of court rules, covering state as well as federal rules and including links to related ethics rulings.

Attenex. Among the various resources available here, two offerings stand out as particularly useful.

First is the collection of "on-demand Webcasts" -- previously recorded Web seminars on topics such as best practices, controlling costs, and native file review.

Also worthwhile is the library of white papers on a range of practical e-discovery topics, many written by practitioners.

Catalyst Repository Systems. CEO John Tredennick is nationally known both as an accomplished trial lawyer with Holland & Hart and as a writer and speaker on legal technology. Find your way to the site's news page, then click the "articles" tab, for articles written by him and others on EDD and document management.

CT Summation. A small collection of white papers focuses on topics relating to EDD and use of electronic evidence.

Merrill Corp.. Within the Legal Solutions section of Merrill's site is a Knowledge Center with a selection of articles to download. Topics include choosing an e-discovery vendor and managing electronic evidence.

Ontrack Data Recovery. Discovery of electronic data sometimes requires recovery of lost electronic data, thanks to hard-drive damage or system failure. Ontrack's site offers more than threedozen substantive articles and white papers on data recovery. The easiest way to find them is via the site map.

Sensei Enterprises. If you've ever been to a legal technology seminar or read a legal technology magazine, odds are you have encountered either Sharon Nelson or John Simek, Sensei's principals. Both are popular speakers and authors. Fortunately for those who have not, they provide a library on their website of their broad-ranging articles dating back to 2002.

Stratify. Skip the "eDiscovery Resources" section of this site, where the focus is on pitching Stratify's products, and go instead to its selections of white papers and published articles. The latter, in particular, has several good pieces on e-discovery practice and technology.

Monday, November 26, 2007

Patent Firm Lays Global Plans [International]

Intellectual Ventures LLC, a low-profile investment firm run by former Microsoft Corp. executive Nathan Myhrvold, is laying plans to go global: It hopes to raise as much as $1 billion to help develop and patent inventions, many of them from universities in Asia.

The move could help the firm, formed seven years ago to purchase patents and help inventors dream up new ones, expand its already-vast store of patents. But the new push also could exacerbate concerns that Intellectual Ventures will begin launching lawsuits to pressure companies to pay for use of its intellectual property.

Mr. Myhrvold said that his firm hasn't sued anybody for patent infringement but that he can't rule it out in the future.

Intellectual Ventures, which said it couldn't comment on any current fund raising, employs about 200 people. It is also raising another, separate fund valued at more than $1 billion to buy up existing patents globally, people familiar with the matter say.

Until now, the firm has focused mainly on buying existing patents in the U.S. -- though it has done some work overseas -- and on dreaming up new inventions in-house with its own group of experts. It has bought thousands of patents but only 26 of its own inventions have been approved so far, according to a spokeswoman. The original patents cover areas such as digital imaging, medical devices and solid-state physics.

The firm had licensing revenue in the hundreds of millions of dollars last year, one person familiar with the matter said.

Intellectual Venture's business model has stirred debate. Officials from some U.S. universities -- including Stanford University and Massachusetts Institute of Technology -- say they aren't working with the firm because they worry it could use its patents for litigation or other purposes that don't promote innovation.

"We want to work with companies that are really going to develop the technology, and I'm not sure if they will or not," said Katharine Ku, who heads Stanford's Office of Technology Licensing. "They keep saying they're not a litigation play necessarily, but we'll just see."

Mr. Myhrvold noted that his firm has deals to buy or license patents with more than 80 universities, including the University of California system and Boston University, "so any reluctance to work with us is a distinctly minority view." He said that his firm simply wants to get "fair compensation" for new inventions, and help inventors do the same, and that its goal has always been to create a more liquid market for intellectual property.

The overseas effort is being bankrolled by a new fund, called Invention Development Fund I. An August regulatory filing with the Securities and Exchange Commission said the fund could raise as much as $1 billion and had already collected $355 million from several big-name investors, including the University of Pennsylvania, the University of Notre Dame and the William and Flora Hewlett Foundation. All either declined to comment or didn't respond to requests for comment.

Other people familiar with the fund said it is focused on nurturing "prepatent" ideas, particularly those coming from Asian universities. The firm would work with inventors there to develop ideas and then help to patent and license them, much as big U.S. universities do through their technology-transfer offices. Intellectual Ventures would own the patents, or have exclusive rights to them, but the original inventors would get a cut of any revenue generated from them.

Though officials of the firm declined to comment on specific funds, Mr. Myhrvold confirmed his company is pursuing a new business strategy of helping outside inventors develop ideas before they are patented. He also said Intellectual Ventures wants to work more with inventors overseas and hopes to soon open offices in China, India, Japan, South Korea and Singapore. Mr. Myhrvold's co-founder, Edward Jung, also a former Microsoft executive, recently spent a year living in South Korea to try to forge relationships with Asian research institutions.

"There are a lot of folks in the world who have the fundamental skills and educational background, and talent, to be an inventor," said Mr. Myhrvold, a mathematician and physicist. But these people "don't have a set of folks providing additional expertise and capital to help them get that traction. That's our job, to help inventors get traction."

Mr. Myhrvold said his firm wouldn't rule out doing pre-patent deals with people at U.S. universities or other institutions. But he said many American universities already have plenty of licensing infrastructure and might not need his help.

India hits second spot on entrepreneur rankings

More Indians have been bitten by the entrepreneurial bug than before. About 82 Indian companies made it to the Deloitte Technology Fast 500 Asia-Pacific companies this year, compared with 48 last year.

India tied with South Korea for the second spot for the number of entrepreneurs, according to Steven Dow, programme director, Deloitte Asia-Pacific Regional Office.

At the number one spot is Taiwan, which had 99 companies in the Deloitte Technology Fast 500 Asia-Pacific list. Compared to India, China trails behind with only 53 companies, while Japan and Australia have 63 and 62 companies, respectively in the list.

The companies that made it to Technology Fast 50 of India have recorded an average three-year revenue growth of 489%. The top five companies have a collective average three-year revenue growth of 1,637%. The fastest growing company in this list was RateGain IT Solutions, a firm providing technology solutions to travel and hospitality industries.

The Technology Fast 50 list was dominated by software companies (52%) followed by communications and networking companies (12%). The rest were internet communications, biotech and pharma firms.

According to a majority of the winners, the factor that contributed most to their growth was entering new markets and expanding their customer base. The biggest operational challenge in maintaining this rapid growth was expectedly, finding, hiring and retaining qualified employees.

For India, more than for Asia Pacific and EMEA, the initial funding was mostly through own efforts and resources rather than through venture capital, angel investors or private equity.

But more interestingly, a larger percentage difference was in how companies protected their intellectual property. In India, compared to Asia Pacific and EMEA, more companies protected their IP by training their employees to reduce IP theft as opposed to hiring third party specialists to advise on IP protection.

Patent rule change to aid biodiversity protection [India]

An October proposal at the Council of Trade-Related aspects of Intellectual Property Rights, or TRIPS, of the World Trade Organization (WTO) that suggested compulsory declaration by patent applicants worldwide of the source of origin of any data related to natural resources is expected to substantially help India to protect its vast biodiversity and traditional knowledge from being exploited by private organizations that don’t share the benefits with local communities where the products originated.

The proposal, mooted by Peru and supported by several countries, including India, Brazil and Tanzania, has now led to an amendment to the TRIPS rule. A deadline for the amendment has also been extended to end-2009 as it requires the ratification of about 100 countries.

Aysha Shoukat, a patent lawyer and an intellectual property rights activist in Chennai, says: “Though India has been vigilant in legislating for the patent protection of traditional knowledge and biological related inventions, many herbs and formulations that constitute the country’s traditional medicine were appropriated by the Western pharma and nutraceutical industry without adequate compensation to the communities, which originally discovered them.”

She points to the Naga Jolokia pepper, which originates from the Naga tribal community, as one such example. “Since it has been found valuable for its medicinal properties, a genetic testing was conducted on it to isolate the responsible gene by a foreign institute,” she claims. “However, no news thereafter of follow up or benefit and compensation to the Naga tribal community has been discussed yet.”

Jeevani, an energy drink developed from a green plant grown in the Agastyar hills of Kerala, is also another case in point, she added. “In this case, despite the granting of a patent for the product to the Tropical Botanical Garden and Research Institute at Thiruvananthapuram, there are loopholes in the system that allow circumvention and misappropriation of the traditional knowledge pertaining to this patent by others.”

The traditional knowledge of Jeevani belongs to a tribal community. New York-based Nutrisciences Innovations LLC holds a trademark for this product, which is commercially very successful in the US and Europe.

Similarly, several products, which have their quality or designs associated with geographical origins in India, had also been used by commercial organizations elsewhere without sharing the benefits with the communities who developed them originally.

Shamnad Basheer, an associate at Oxford University’s IP Research Centre, notes: “Though India has built in this provision for disclosures into its patent regime as far back as 2002, unfortunately, there are no provisions in the rules telling us as to what level of ‘disclosure’ would be sufficient in this regard.”

“I’m not sure how many patent applicants comply with this provision,” he says. “To the best of my knowledge, no patent application has been opposed or revoked on the ground that it doesn’t disclose ‘biological material’ or ‘traditional knowledge’. Therefore, one is not sure at this stage whether or not this provision is being complied with by patentees. One is also not sure if the patent office in India is really enforcing this provision and checking that every application claiming biological material is disclosing the source and origin.”

Several community and trade lobbies in India have come forward to secure such rights. The Andhra Pradesh Technology Development and Promotion Centre, for instance, is proposing to secure geographical indication coverage for native art, bearing antecedent of origin to the state.
The other popular traditional knowledge and innovations for which geographical recognition has been sought by the centre includes Nirmal paintings and furniture, and leather puppetry known as Tholu Bommalaata of Nimmalakunta in Andhra Pradesh, Anab-e-Shahi grapes, Venkatagiri and Gadwal sarees.

Friday, November 23, 2007

The battle for ayurveda: India is racing to record the details of its traditional medicine

They range from the everyday to the decidedly obscure, from items with a specific, specialised use to those with a host of applications. Their common heritage is one of the world's oldest cultures, and their details are being gathered together to guard against theft by the West.

For several years the Indian authorities have been collating information about hundreds of thousands of plants, cures, foods and even yoga poses to create a vast digital database of traditional knowledge dating back to up to 5,000 years ago, available in five international languages. Now, the first part of that database – relating to ayurveda or traditional Indian medicine – has been completed and it is set to launch the fight back against what some have termed "bio-colonialism".

"The ayurveda part has been completed," said Dr Vinod Gupta, the chairman of India's National Institute for Science Communication and Information Resources (Niscair), which is overseeing the project. "Now we are negotiating an agreement with international patent offices [for access to this database]."

The database, totalling more than 30 million pages and known as the Traditional Knowledge Data Library, has come about for one very simple reason: to prevent Western pharmaceutical giants and others using this traditional Indian information to create a product for which they then obtain a patent.

The danger of such "misappropriation" is all too real. In 1994 an American company was granted a patent for a product based on the seeds of the need tree, an item that had for centuries been used in India as an insecticide. It took the Indian authorities more than 10 years to have the patent overturned. Similar battles were fought over a product based on the spice turmeric – traditionally used to heal wounds – as well as a Texan company's attempt to trademark its strain of rice as "Texmati".

"In 2000 we did a study of the US patent database. We found there were 4,986 patents for products based on medicinal plants," said Dr Gupta. "Of those around 80 per cent were based on plants from India ... 50 percent of those patents should never have been given – there was no change to the traditional knowledge."

Under international guidelines, patents should not be given if it is shown there is "prior knowledge" or existing information about the product or item. In the United States – where many of the patent applications have been made – this prior existing knowledge is only recognised if the information has been written down. It does not consider information passed down for centuries by means of oral tradition to be valid.

Unlike many cultures from which traditional information has been misappropriated, India has an extensive written tradition. But most of the writing was in languages not widely read in the West. For example ayurvedic texts were written in Sanskrit or Hindi, writings about unani medicine – based on Ancient Greek practices now only practiced in the sub-continent – were in Arabic and Persian, while writings about another form of traditional medicine known as siddha was in the Tamil language.

To get around this challenge, Dr Gupta called in more than 100 practitioners of Ayurveda, siddha and unani to help compile the information using computer software. The database is being made available in Japanese, English, German, French and Spanish and the contents will be made available to patent officials once agreements on protecting the information and preventing it from being passed to corporations, are reached.

Also included within the database are more than 1,500 positions or asanas of yoga. This is because in recent years several yoga teachers in the West have tried to copyright methods of teaching yoga that they are argue are unique but which have existed for centuries in India.

One high-profile case involved Los Angeles-based Bikram Choudhury, the self-styled "yoga teacher to the stars". Mr Choudhury, who moved to America in the 1970s, first obtained a copyright for a book he wrote. But when other teachers began copying the way he taught yoga – with 26 specific poses performed in a room heated to 41C (105F) – he sought legal advice and was told to obtain a copyright for the moves themselves. It has been recognised by the US courts despite India's objections.

Dr Dinesh Katoch, an adviser on ayurveda within India's Ministry of Health and Family Welfare, said more than 50,000 different ayurvedic formulations for treating everything from heart disease to memory loss had been entered into the database. Some of the information is mentioned in the Vedas, the ancient Hindu texts that date back several thousand years.

"We want to use this information for the global benefit but it should be done in a judicious way, not by stealing," he said, sitting in his office in central Delhi. "We want to prevent misappropriation. Prevention is the most important thing because it is not easy to repeal a patent."

In addition to the considerable cost incurred by the Indian authorities fighting patents they do not believe are genuine or fair, there is a widespread feeling that Western corporations should not be making vast profits from traditional knowledge while the people who discovered the information receive no benefit.

But campaigners say the misappropriation also has cultural and political implications. "I have termed it bio-colonialism," said Vandana Shiva, an Indian environmental activist and author.

"The international intellectual property laws as promoted by the World Trade Organisation [WTO] promote bio-colonialism because while they say there should be a global system to patent everything, the reality is that patent inspection is done at a national level. If you want to have a global system you have to have global inspection," she said. "This would involve setting up a global database. This will take a decade and cost billions of dollars."

Vital ingredients

* Arjuna Tree

The bark is a traditional Ayurvedic herbal cure for a variety of ills and is now widely used throughout the world as a high-blood pressure treatment. It is thought to improve the function of the cardiac muscle and to stabilise cholesterol levels, and it contains anti-oxidant properties.

* Basmati Rice

Authentic basmati rice is grown in the foothills of the Himalayas and the Indian government has tried hard to protect the grain. A patent granted by the US Patent Office to a local company for new strains of rice similar to basmati was revoked after a legal battle with the Indian government.

* Turmeric

It is grown mostly in Bengal and other areas of south-east Asia but, in addition to a curry spice, it can be used to heal wounds. In 1995, the US Patent Office granted a patent on its healing properties but Indian scientists protested and it was revoked.

* Brahmi

This creeping herb is used in many Indian preparations and has gained global recognition for its ability to improve mental acuity and fight cognitive decay. It is thought that brahmi boosts the memory and has calming properties. In India, the plant is often used in salads and soups.

Jeremy Laurance: Little evidence, but much tradition

It is an ancient form of therapy with 5,000-year history and a string of modern celebrity followers but there is "no convincing evidence" that ayurvedic medicine works.

Enthusiastically promoted by users including Cherie Blair, Madonna, Sting and Gwyneth Paltrow, ayurveda has become more of a brand than a treatment in the West. There are ayurvedic recipes and it embraces meditation, diet, yoga and herbal medicine, as well as featuring a lexicon that defines consciousness as the "dream state of the cosmic being".

Offered in hotels, spas and retreats, as well as in the charitable Ayurvedic hospital in west London, its underlying principle is that the body and mind must be maintained in balance. Ayurvedic medicines are combinations of different herbs, tailor-made for each individual, which are given to correct imbalances that would otherwise lead to physical or psychological ill health.

In Britain, practitioners must undertake a three-year BSc degree course, followed by a 1,000-hour internship with an ayurvedic doctor, in order to be registered with the British Association of Ayurvedic Practitioners. They charge £50-60 on the first occasion and around £30 for follow-up appointments.

Despite the long training, scientific peer-reviewed evidence for the effectiveness of what ayurvedic practitioners do is scant. The House of Lords Science and Technology Committee investigation into alternative medicine concluded in 2005 that the case for ayurvedic medicine was "not proven".

Some studies have suggested that certain herbal combinations may be effective for heart disease and rheumatoid arthritis. Triphala, the most popular ayurvedic remedy in India, made from the powdered and dried fruit of threeplants and taken as an aid to digestion, has been shown to slow cancer growth in mice.

Max Pittler, deputy head of the department of complementary medicine at Exeter University said: "There may be individual trials that suggest certain herbal combinations may be effective but there is no really convincing body of evidence that specific ayurvedic mixtures have specific effects. There is no good evidence that it is beneficial. "

What's your intellectual property worth?

Coller IP Management has launched a service that puts an exact figure on just how valuable an organisation’s intellectual property is.

Intellectual property (IP) makes a large but notoriously hard-to-measure contribution to an organisation’s overall value, and Coller’s service contrasts sharply with the more general guidance offered by many IP agencies.

Coller CEO Jackie Maguire told IWR: “Other people will give an opinion but often they sit on the fence and aren’t clear. We give a firm opinion.

“We have had quite a bit of experience helping people take their ideas and inventions to market and we found people need to have a good understanding of IP before they try to set out. If they try to get going without thinking about IP, they come unstuck.”

Engineering companies, for example, can request a valuation of their intellectual capital and decide whether new ideas are sound enough to invest time, effort and money in.

The valuation service looks beyond formal IP such as trademarks and copyright to the wider intellectual capital of an organisation such as the processes it has developed, branding and the value of staff with ideas.

Maguire said the service was for companies at all stages of development, from corporates to one-man bands.

“We do have every small clients, it doesn’t have to be expensive,” she said. “Some large corporates have a large IP portfolio that is out of line with their corporate strategy.”

The service is also aimed at investors who need to understand the key IP issues in a business proposition. They can commission an independent view on the robustness and market attractiveness of the IP portfolio. Coller’s valuations support M&As, IPOs and licensing negotiations.

“We found people in venture capitalists didn’t understand the nuances of the IP they were buying, so we developed valuation and opinion services,” said Maguire.

Red Hot Chili Peppers could struggle in 'Californication' lawsuit

LA rockers Red Hot Chili Peppers are suing the network behind TV hit Californication, alleging that the title is stolen from their 1999 single and album. But the group may struggle because it failed to protect its brand, according to a legal expert.

Anthony Kiedis, Chad Smith, John Frusciante and Michael 'Flea' Balzary, doing business as Red Hot Chili Peppers, are suing Showtime Networks and others. They argue that the creation and marketing of the TV series "constitutes a false designation of origin, and has caused and continues to cause a likelihood of confusion, mistake, and deception as to source, sponsorship, affiliation, and/or connection in the minds of the public".

The album Californication sold 14 million copies and was listed among Rolling Stone magazine's Top 500 Albums of All Time. The group say that the US series, starring David Duchovny, dilutes the quality of their brand. They are seeking unspecified damages and a new name for the TV show.

The lawsuit notes that a recurring character in the TV show is called 'Dani California'. That is also the name of a character who is the subject of or mentioned in three songs by the Chili Peppers, including the song Californication. The band also wrote a hit single called Dani California.

The lawsuit does not mention it, but according to Wikipedia, a character in one episode narrates the line, "It's the edge of the world and all of western civilization," a lyric from the song Californication.

Further, the lawsuit notes that a search on 'Californication' in Apple's iTunes Music Store retrieves the band's works and the TV show's compilation albums. The band says that causes confusion.

However, Showtime Networks is expected to argue that the band did not coin the word, a portmanteau of California and fornication. It first appeared in print in Time Magazine in 1972, in an article called The Great Wild Californicated West. Time reporter Sandra Burton wrote, "Legislators, scientists and citizens are now openly concerned about the threat of 'Californication'—the haphazard, mindless development that has already gobbled up most of Southern California."

Kim Walker, head of intellectual property at Pinsent Masons, the law firm behind OUT-LAW.COM, said that the band should have registered Californication as a trade mark. Instead, the only trade mark application was filed in April in the US, by Showtime Networks. The mark has not yet been registered.

"Successful songs, albums and movies can become brands in themselves. What's really surprising is how few songs and albums are properly protected," said Walker. "The Chili Peppers could almost certainly have registered a trade mark for 'Californication', notwithstanding Time's article. They made the word famous, but it doesn't automatically follow that they can stop its use in a TV show."

"If they had registered the title as a trade mark covering entertainment services, I very much doubt we'd have seen a lawsuit. The TV show would have been called something else," he said. "As it is, the band faces an uphill struggle."

A quick search on Rolling Stone's Top 10 Greatest Albums of All Time at the trade mark registries of the US and UK shows that none of the album titles are protected by the artists or their record companies.

An individual applied to register Highway 61 Revisited, the Bob Dylan album that appears at number 4 in Rolling Stone's list; but that application was abandoned. Rubber Soul, ranked number 5, is registered as a mark, but not to The Beatles. And Sgt. Pepper's, the top-ranked album, is registered as a footwear brand by a company in Spain and as a pepper spray brand in the US.

David Bowie appears to be more savvy than most of his counterparts, though: he has registered Ziggy Stardust as a trade mark for music and entertainment services. The Rise and Fall of Ziggy Stardust and the Spiders From Mars is ranked at number 35 in Rolling Stone's list.

Trademark clarification over Tarzan's yell [International - Trademark]

A sound can be registered as a trade mark if it can be written in musical notation. But a sound like Tarzan's yell can also be registered if a graphical representation is accompanied by an MP3 file, according to Europe's trade mark registry.

The Office for Harmonisation in the Internal Market (OHIM) issued a clarification this month after widespread coverage of its recent decision to reject an application for the famous call of Edgar Rice Burrough's fictional character.

The application had included two pictures said to represent the sound of the jungle resident's cry, one an image of a wave form representation of the sound, the other a spectrogram of the frequencies of the yell.

It came with a text description: "sustain, followed by ululation, followed by sustain, but at a higher frequency, followed by ululation, followed by sustain at the starting frequency…"

That application, originally made in 2004, was rejected. Upholding the rejection in 2007, the Board of Appeal wrote, "Nobody can read a spectrogram as such."

But OHIM has now explained that Tarzan's yell is already registered as a mark. Another application, also made in 2004, included the yell in musical notation. That was accepted for registration, OHIM said.

Wednesday, November 21, 2007

Harnessing User Content [Legal Technology]

Marketers are tapping into the user-created content phenomenon and running UGC contests and other promotions online, sometimes promising to run the winning video as a television commercial. Marketers are engaging in online promotions within the virtual communities of social networking and massively multiplayer online games (MMOGs). In addition, online promotions frequently encourage certain online user activities, such as recommending products to friends on their blogs and sending e-mails about a product or service to their friends, sometimes by rewarding such activities with cash, coupons, prizes or sweepstakes entries.

UGC presents a host of potential legal problems, such as third-party intellectual property infringement (and in recent years, we have seen a great deal of litigation generated in this area). Sponsors and promoters that engage users in their promotions run the risk that user conduct and content will be attributable to them and that they will be deemed responsible for what the users say and do in connection with the promotion. In addition, the use of Web sites and Internet services are subject to the terms and conditions of each provider, and promotions must follow the rules of the applicable venues.

The combination of the ease in which digital media tools enable content creation and the ability to publish and distribute that content via the Internet has led to a proliferation of UGC. Social networking sites, MMOGs, blogs and UGC sites, such as YouTube, Facebook and MySpace, are immensely popular. Television and cable networks are developing vibrant online sites to create a two screen experience; offering viewers the ability to interact, participate and create via the online offering. For example, on, the online offering of Al Gore's youth-oriented cable net Current TV, users can connect with each other, contribute video programming that has the potential to migrate to the cable network and even create commercials for the network's advertisers. Knowing that engaging consumers is more valuable than bombarding them with banner and pop-up ads, online marketers are rushing to get Internet users to directly participate with their brands and are involving bloggers, UGC and social networking sites and other virtual communities as a way to do so. In the MMOG Second Life, for example, dozens of real-life brands have established themselves within the game environment, and ad insertion functionality and product integration are being added to many online games.

An initial area of concern for Web site providers, promotions operators and sponsors with respect to UGC and user participation is the distinct possibility that the user will infringe third-party intellectual property or personal rights. However, there are two laws that provide the possibility that the Web site that hosts such content is not liable for such content.

Monday, November 19, 2007

Intellectual Property Rights a Guide for Artists and Designers

Intellectual Property Rights: A Guide for Artists and Designers is a readable, practical handbook that can save you time and money. Co-authored by the well-known art and design lawyer Henry Lydiate, with Lubna Azhar and Rob Grose, themselves both lawyers and creative practitioners, it provides an up-to-date and comprehensive guide to managing intellectual property (IP) rights in, primarily, visual art and design, explaining key concerns and legal principles relevant to the protection and exploitation of creative work.

The IP guide covers - for hard and digital media - copyright, moral rights, commissioning, confidentiality and contractual arrangements; the commercial exploitation of three-dimensional works and the use of design right; and also explains the law relating to trade marks, patents and passing off. Making clear throughout the distinction between unregistered rights (that come into existence automatically on creation of a work) and registered rights (requiring an investment of time and money, and formal application), it takes readers through the registration and application processes and the logic behind them.

Each chapter is structured around specific examples and images to illustrate and demystify the fundamental legal concepts. Detailed references to legal statutes and decided cases supplement the text. The book is written from the perspective of the law in England and Wales, with additional information on Scottish law, although international variations are clarified where appropriate.

By unravelling the complexities of IP law in plain English Intellectual Property Rights enables you to spot trouble before it goes too far, as well as identify creative opportunities. Aimed primarily at creative practitioners, designers and their clients, design and brand managers, it will also be of benefit to legal practitioners as an introduction to or update of the subject; to picture researchers and picture libraries; and to students and directors of higher education courses in visual communication, design and art and related professional practice studies.

In Defense of Intellectual Property [David H. Carey]

One reason why intellectual property in some new technologies may appear to be unlike other forms of property lies in its indefinite replicability -- multiplication without diminution.

You and I, and indefinitely many others, each may have access to some item of computer software just as we all may share the ideas in this paper. Each copy is as good as the original. Your having a copy in no way diminishes my use of, or access to, my copy. In contrast, a tangible item of property can be in only one place at a time and may well be diminished by multiple uses. This contrast between tangible and intellectual property has led some to think that intangible items cannot or ought not to be restricted as tangible items are. If you take my pen, I cannot use it, but if you take my idea, I suffer no analogous loss. Thus, it might seem that new technological developments that result in perfect replicability (such as computer software or genetic coding) may render traditional notions and norms of property obsolete.

One philosopher who has raised this, along with several other objections to intellectual property, is Edwin Hettinger. He asks, “Why should one person have the exclusive right to possess and use something which all people could possess and use concurrently? The burden of justification is very much on those who would restrict the maximal use of intellectual objects.”

To this objection we reply: Income from selling one’s product is a form of use; so it is not the case that sharing intellectual property is loss-free to the sharer. While sharing intellectual objects may not involve loss of possession or loss of personal use, the loss of income incident to such sharing is a true and significant loss and not to be dismissed.

Second, Hettinger spells out the puzzle involved in determining what value ought to be ascribed to one’s labor. For instance, market value does not solve the puzzle for two reasons: Market value is “a socially created phenomenon,” and not in any direct sense the product of one’s own labor. Market value results from many factors and not just “the latest contributor,” so that it would seem unfair to reward only this latest contributor with the value of a product, but then how would such value be divvied up? “To what extent individual laborers should be allowed to receive the market value of their products is a question of social policy,” Hetinger argues, “it is not solved by simply insisting on a moral right to the fruits of one’s labor.”

Our response is that, in principle, at least, all predecessor contributors to a product could get their due in a free market (if we understand their due to be determined by the free transactions of willing sellers and buyers, the essence of a free market).

A closely related attempt to justify intellectual property is the argument from desert. The basic idea here is that one deserves to be rewarded for worthwhile labor. To this Hettinger objects that property rights to the results of one’s labor are not necessarily the form that such reward should take. Here, he adduces Lawrence Becker’s counterexample: Parents do not deserve property rights to their children. Even if it could be established, moreover, that property rights should be proportional to the value of one’s labor, this would not justify patents, copyrights, or trade secrecy, in that none of these forms of intellectual property guarantees a reward neither more nor less than one deserves.

We grant that intellectual property rights do not guarantee a just reward. We know of no automatic device that would provide such a guarantee. Nor are such rights “necessarily the form that such reward should take.” Rather, their justification, in our legal system, at least, rests chiefly on the social bargain by which such rights are offered in return for the ultimate enrichment of the public domain. Accordingly, these rights are social constructions rather than natural endowments. To admit this, however, is not to impugn their justice any more than the merely conventional status of traffic laws impugns the justice of traffic fines.

This article is excerpted from the new Acton Institute monograph, “The Social Mortgage of Intellectual Property.” David H. Carey is professor of philosophy at Whitman College in Walla Walla, Washington. The book may be purchased online through the Acton Book Shop.

Friday, November 16, 2007

European Commission will investigate Google's DoubleClick deal

Google's purchase of advertising giant DoubleClick has been thrown into doubt by the European Commission, which has announced that it will launch an in-depth investigation into the deal on competition grounds.

The decision will be a blow to Google, putting a question mark over the deal until at least next spring. The Commission has 90 working days in which to make its decision on the future of the combined company. A decision must be made before 2nd April 2008.

The internet search giant makes most of its money from text ads that appear beside the answers to search queries. Doubleclick is an online ad-serving company whose systems post and monitor internet adverts.

The European Commission, which regulates competition law in Europe, has wide-ranging powers, including the power to block the merger in Europe.

The investigation will look at whether the combined company will be able to use its power to stop others competing with it in the future.

"[The Commission] will investigate whether the merger, which combines the leading providers of respectively, on the one hand, online advertising space and intermediation services, and, on the other hand, ad serving technology, could lead to anti-competitive restrictions for competitors operating in these markets and thus harm consumers," said a Commission statement.

The investigation will also make a more complicated analysis when it decides whether Google's purchase has the effect of eliminating a future competitor.

"The Commission will, in particular, investigate whether without this transaction, DoubleClick would have grown into an effective competitor of Google in the market for online ad intermediation," said the Commission.

The European Commission has been very active in competition cases in the technology sector this year, and won a major victory when Microsoft said it would not appeal a Commission ruling it had disputed since it was made in 2004.

Since summer it has accused memory maker Rambus of abusing its dominant market position and conducting a "patent ambush", and has said that a six year investigation into Intel revealed that the chip giant had an "overall anti-competitive strategy".

'Chewy Vuiton' Wins Trademark Suit

Luxury handbag maker Louis Vuitton claimed a Las Vegas company infringed on its trademark with furry "Chewy Vuiton" dog toys, but a federal appeals court refused to bite.

A three-judge panel of the 4th U.S. Circuit Court of Appeals affirmed a lower court's ruling that Haute Diggity Dog's toy was a successful parody of the products from the French fashion company.

Judge Paul V. Niemeyer found that Chewy Vuiton is "a joking and amusing parody" that "pokes fun at the elegance and expensiveness of a LOUIS VUITTON handbag."

Louis Vuitton sued Haute Diggity Dog, its principal owner Victoria Dauernheim, and retailer Woofie's Pet Boutique in Ashburn, Va., in 2006 for trademark, trade dress and copyright infringement.

Louis Vuitton, which also makes some of its own pet products, argued the toy company infringed on its trademarks because the toys are likely to cause confusion.

"We believe the court misapplied the law of parody, which is designed to protect freedom of speech, but not to allow infringers to make money by exploiting the good name and famous trademarks of a company such as Louis Vuitton," the company said in a statement.

Pamela Reeder, co-owner of Haute Diggity Dog, said she was relieved by the outcome of the case, which has cost more than $300,000 in legal fees for the company that started in her guest bedroom in August 2004.

Tuesday, November 13, 2007

Inside the Study ‘Maximizing Intellectual Property Value’ Lawyers Discuss the IP Discovery Process, Frequently Negotiated Terms, Common Deal Killers,

Research and Markets has announced the addition of Maximizing Intellectual Property Value: Leading Lawyers On Leveraging Your IP Portfolio, Negotiating IP Transactions, And Creating Intellectual Capital (Inside The Minds) to their offering.

Maximizing Intellectual Property Value is an authoritative, insiders perspective on best practices for successfully negotiating and settling IP cases. Featuring partners and chairs from some of the nations leading law firms, these experts guide the reader through the various components of IP law, discussing strategies for successful negotiations and protecting ones IP assets. From understanding the roles of key players involved and conducting due diligence to calculating damages and lost profits, these lawyers discuss the IP discovery process, frequently negotiated terms, common deal killers, protection strategies, and more. These top lawyers give tips on deciding when to settle vs. litigate, obtaining the proper documentation, evaluating contracts, building an IP portfolio, and identifying infringement risks. Additionally, these leaders reveal their strategies for avoiding common mistakes, planning defensively, and keeping abreast of change, The different niches represented and the breadth of perspectives presented enable readers to get inside some of the great legal minds of today as these experienced lawyers offer up their thoughts around the keys to success within this ever-changing field of law.

Inside the Minds provides readers with proven business intelligence from C-Level executives (Chairman, CEO, CFO, CMO, Partner) from the worlds most respected companies nationwide, rather than third-party accounts from unknown authors and analysts. Each chapter is comparable to an essay/thought leadership piece and is a future-oriented look at where an industry, profession, or topic is headed and the most important issues for the future. Through an exhaustive selection process, each author was hand-picked by the Inside the Minds editorial board to author a chapter for this book.

Chapters Include:

1. James F. Smith, Shareholder, Clausen Miller PC - Negotiating IP From the Next Door

Neighbors Perspective

2. Karen Kreider Gaunt, Partner, Keating, Muething & Klekamp PLL - Building a Strong

IP Portfolio

3. Randall K. Broberg, Partner, Allen Matkins Leck Gamble Mallory & Natsis - The Impact of IP in Venture Capital Transactions

4. Charles S. Baker, Partner, Porter & Hedges LLP - The Intellectual Property Negotiation Process

5. Jacob C. Reinbolt, Partner, Procopio, Cory, Hargreaves & Savitch LLP - Intellectual Property as Intellectual Capital: How to Maximize the Value of Your IP

6. Edward V. Filardi, Partner, Skadden, Arps, Slate, Meagher & Flom LLP - Meeting the Goal for a Successful IP Settlement

7. Paul L. Gale, Partner, Ross, Dixon & Bell LLP - Successfully Burying the Hatchet

8. Manjit Gill, Partner, Becker & Poliakoff PA - The Categories of IP

9. Grady M. Garrison, Member, Baker, Donelson, Bearman, Caldwell & Berkowitz - Providing Value in an IP Transaction

Appendices Include:

Appendix A: Inbound Biotech License Term Sheet

Appendix B: Software License Agreement

Appendix C: Pharmaceutical License Agreement

Appendix D: Settlement Agreement I

Appendix E: Settlement Agreement II

Appendix F: XYZ Patent Settlement Agreement

Appendix G: Consent Judgment and Permanent Injunction

Appendix H: Sample Settlement Agreement I

Appendix I: Sample Settlement Agreement II

Appendix J: Trademarks: A Protocol

Appendix K: Employee Acknowledgment and Agreement for Disclosure, Assignment, Confidentiality, Non-Competition and Non-Solicitation

Appendix L: Contractor Acknowledgment Agreement and Agreement for Disclosure, Assignment, and Confidentiality

Intel Official: Say Goodbye to Privacy

A top intelligence official says it is time people in the United States changed their definition of privacy.

Privacy no longer can mean anonymity, says Donald Kerr, the principal deputy director of national intelligence. Instead, it should mean that government and businesses properly safeguards people's private communications and financial information.

Kerr's comments come as Congress is taking a second look at the Foreign Surveillance Intelligence Act.

Lawmakers hastily changed the 1978 law last summer to allow the government to eavesdrop inside the United States without court permission, so long as one end of the conversation was reasonably believed to be located outside the U.S.

The original law required a court order for any surveillance conducted on U.S. soil, to protect Americans' privacy. The White House argued that the law was obstructing intelligence gathering.

The most contentious issue in the new legislation is whether to shield telecommunications companies from civil lawsuits for allegedly giving the government access to people's private e-mails and phone calls without a court order between 2001 and 2007.

Some lawmakers, including members of the Senate Judiciary Committee, appear reluctant to grant immunity. Suits might be the only way to determine how far the government has burrowed into people's privacy without court permission.

The committee is expected to decide this week whether its version of the bill will protect telecommunications companies.

The central witness in a California lawsuit against AT&T says the government is vacuuming up billions of e-mails and phone calls as they pass through an AT&T switching station in San Francisco.

Mark Klein, a retired AT&T technician, helped connect a device in 2003 that he says diverted and copied onto a government supercomputer every call, e-mail, and Internet site access on AT&T lines.

Thursday, November 08, 2007

Harry Potter And The Intellectual Property Lawsuit [Copyright - International]

J.K. Rowling and Warner Bros. are suing a US publisher for infringement of intellectual property rights over its plans to release an encyclopedia about the phenomenally-successful Harry Potter books. The British author and Warner Bros., the studio behind the movie versions of the books, filed the lawsuit in New York on Wednesday alleging "widespread misappropriation of Ms. Rowling's fictional characters and universe."

"It's... old news that I hope one day to write the definitive Harry Potter encyclopedia," Rowling said in a statement, adding that she intended all the royalties from the publication to go to charity.

"I cannot, therefore, approve of 'companion books' or 'encyclopedias' that seek to preempt my definitive Potter reference book for their authors' own personal gain," she added.

"The losers in such a situation would be the charities that I hope, eventually, to benefit."

The lawsuit seeks unspecified damages and an injunction against RDR Books preventing it from publishing the encyclopedia, which it describes as "the most trusted reference source on earth about the wonderful world of Harry Potter."

"We are seeking to protect our intellectual property rights in the interests of fans and so that everyone can continue to enjoy Harry Potter books and films in the spirit in which they were created," Warner Bros said in a statement.

Rowling, 42, has become a billionaire from the Potter phenomenon, with the books translated into 64 languages.

The first in the boy wizard series, "Harry Potter And The Sorcerer's Stone," was published in 1997 and the final and seventh novel, "Harry Potter And The Deathly Hallows", broke records after going on sale in July.