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.

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.

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 www.current.com, 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.

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.

For more information visit: http://www.researchandmarkets.com/reportinfo.asp?report_id=301995

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.

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.