The Sad State of Patent Law in the US & World.

[Kludge]

I don't think these all deserve their own thread, as the point is - the US patent system (at least) is broken. It allows for broad ideas (often already documented as having been sold by other people) to be owned, and those unjustified broad patents are regularly the basis of absurd lawsuits. Often, lawsuits are filed without discretion by large corporations and dedicated patent trolls, with no coherent goal except to hinder business and halt the flow of organic ideas (and in some cases, profit by disregarding the spirit of IP laws). Some examples include Kellogg's suing a Guatemalan archeology non-profit for using a toucan in their logo (http://www.ronpaulforums.com/showthread.php?314545-Kellogg-s-Sues-Guatemalen-Non-Profit-For-Using-Toucan), Apple suing a grocer for using (you guessed it!) an apple in their logo (http://www.techdirt.com/articles/20110907/13240615842/apple-still-seems-to-think-that-only-it-could-possibly-have-apple-shaped-logo.shtml) - and it certainly isn't limited to the US. A man in the UK recently trademarked a government slogan created during WWII (http://www.techdirt.com/articles/20110922/02573916047/uk-guy-trademarks-famous-govt-slogan-goes-after-others-using-it.shtml). Posters of the slogan with the image (the image being public domain) were sold prior to his patent filing, and ofc, he did not design the original, yet he still claims "I have to protect my own interests. You know, and faced with the risk of losing everything you've worked for, I find it hard to believe that other people wouldn't do the same thing."

These certainly aren't the only recent cases (I'm sure everyone's familiar with the thankfully-insolvent Righthaven trolls). This thread will serve as a dumping ground for such stories. I find them amusing and frustrating. These stories are not listed with intent to discredit the concept of IP altogether, but to point out how woefully incompetent government has been at enforcing claims of IP ownership. Particularly responsible are the judges who so liberally apply IP protections where it has no basis, lawmakers failing to protect IP creators by decreasing instead of increasing allowances of Fair Use, the USTPO (and other government patent offices around the world) for granting broad/vague patents to people who may or may not be the true IP owners, and the terrible human beings who abuse the system to sue people who any person utilizing common sense would agree has done nothing wrong.


- And with that intro... -- today's story:

In showing the ridiculousness of the patent system, there are a few patents that stand out that get cited pretty often. Among them are Patent #6,004,596 (http://www.google.com/patents?id=GCYXAAAAEBAJ&printsec=frontcover&dq=6004596&hl=en&ei=O5Z2Tp2jFeuFsALZ_MSLBQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CC4Q6AEwAA) on making a peanut butter and jelly sandwich without the crust, patent #6,368,227 (http://www.google.com/patents?id=T2QKAAAAEBAJ&printsec=frontcover&dq=6368227&hl=en&ei=nZZ2TvHZNtSrsAK-xIGMBQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CC4Q6AEwAA) showing a method of swinging on a swing sideways and patent #5,443,036 (http://www.google.com/patents?id=OfwkAAAAEBAJ&printsec=frontcover&dq=5443036&hl=en&ei=CZd2TpTjGdPKsQL77Z2MBQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CC4Q6AEwAA) explaining a method for "exercising a cat" by pointing a laser pointer and "selectively redirecting said beam out of the cat's immediate reach to induce said cat to run and chase said beam and pattern of light around an exercise area."

I think we may have another one to add to that list. Prisoner 201 lets us know that the USPTO, in their infinite wisdom, has granted a patent on building a snowman (http://www.geek.com/articles/geek-cetera/us-inventor-finally-granted-patent-for-snowman-construction-2011098/). Because, lord knows, without that, no one would have any incentive at all to make a snowman. I will admit that the patent does discuss a rather different way of making a snowman, involving "snow spheres." But I do wonder if this is the proper use of the patent system. Anyway, go ahead and check out patent # 8,011,991 (http://www.freepatentsonline.com/8011991.html) for inventor Ignacio Marc Asperas of Melville, NY, which is technically for an "Apparatus for facilitating the construction of a snow man/woman." The patent itself declares: "The following is not a joke patent. Its completely serious and is a serious undertaking to obtain a patent."

...

http://i.imgur.com/NV7JH.jpg
Full story w/comments @ http://www.techdirt.com/articles/20110909/09222615881/new-way-to-build-snowman-patented.shtml

[Kludge]

Want to install Apple's OSX on other hardware? Court claims it is illegal.

"As you may recall, Psystar was a company that tried to make Apple Mac clones by legally purchasing Apple operating systems, and figuring out how to install them on other hardware. Apple sued the company (http://www.techdirt.com/articles/20080715/1154271690.shtml) in 2008 for violating its license. Psystar went through a variety of (often questionable) defenses before settling on the one I thought had the best chance: the first sale doctrine (http://www.techdirt.com/articles/20090113/2221133398.shtml) -- basically claiming they legally purchased the software, and that they should be able to install it wherever they want. Psystar also claimed "copyright misuse," against Apple, arguing that its EULA restricting installation to only Apple hardware was a form of copyright misuse to stifle competition. Two years ago, though, the court granted summary judgment to Apple (http://www.techdirt.com/articles/20091114/1813376929.shtml), rejecting both arguments.

Psystar appealed, focusing on the copyright misuse argument and, while it took some time, the always slightly wacky 9th Circuit has upheld the ruling (http://blog.internetcases.com/2011/09/29/ninth-circuit-apple-did-not-engage-in-copyright-misuse-by-restricting-os-x-to-apple-hardware/). The court, tragically in my opinion, buys Apple's argument that its EULA does not unfairly restrict competition, because Psystar could go find a different operating system, rather than Apple's. Here, the court relies on the awfulVernor v. Autodesk (http://www.techdirt.com/articles/20100912/12212110968.shtml) ruling that basically said, "as long as a software company claims it's leasing the software to you, rather than selling it to you, your first sale rights disappear." This is true even if the "sale" really is a sale rather than a lease. It all depends on what you call it.

..."

Full story with comments @ http://www.techdirt.com/articles/20110930/03204216148/psystar-loses-again-appeals-court-says-it-cant-install-legally-purchased-osx-other-hardware.shtml

[Revolution9]

Want to install Apple's OSX on other hardware? Court claims it is illegal.\

When Gil Amelio allowed this Apple almost died. Being an Apple dev and hardware buyer I do not want the R&D budget of Apple cut due to profit loss from third party vendors diluting the profit margin. That profit margin benefits me both as consumer and developer.

However..snowmen and one click shopping and the like.. Take a frigging hike.

Rev9

[Kludge]

Implement WiFi? You may be violating patent law. There's a company out there called Innovatio IP (no, seriously - that's really the name!) with a patent portfolio allowing their lawyers to coerce businesses offering WiFi into paying settlement fees of $2,300-$5,000 (less than the cost to fight it). "They've been suing coffee shops, grocery stores, restaurants and hotels first (http://patentexaminer.org/2011/09/innovatios-infringement-suit-rampage-expands-to-corporate-hotels/) -- including Caribou Coffee, Cosi, Panera Bread Co, certain Marriotts, Best Westerns, Comfort Inns and more."

They've apparently considered shaking down residents operating a WiFi network, but have declined to sue "at this stage" for "strategic reasons." That's pretty generous of them, IMO. Motorola & Cisco appear to be fighting the patent.

Full story with comments @ http://www.techdirt.com/blog/wireless/articles/20111001/00365416161/patent-troll-says-anyone-using-wifi-infringes-wont-sue-individuals-this-stage.shtml

[Kludge]

Some artists have found a welcoming home at "ArtistShare," a company in the same genre as KickStarter in which artists set up accounts to connect with fans and offer more than just their music for "purchase." Fans show support, and the artist rewards them with "extras," such as exclusive Q&A sessions, access to scores, and the like. Instead of the money you want to go to the artist instead being given partially to distributors and record labels, in KickStarter and other services, the money goes directly to the artist you wish to support. With so much independence and freedom being encouraged by the service, it's unfortunate ArtistShare now appears to be poising itself as one more patent troll, recently receiving a patent for the idea of having fans pay musicians essentially for more access to their music and lives.

"Back in 2004, I first wrote about musicians using a platform (http://www.techdirt.com/articles/20040706/030209.shtml) called ArtistShare to help raise funds from fans. It was an early version of crowdfunding -- but as I noted in the post itself, it was no different than a number of similar ideas that were out there. ArtistShare was definitely a part of the first wave of similar offerings, which included things like Sellaband and Bandstocks. It's was a great idea, but it wasn't exactly original. More recently, a second generation of such companies has become much more well known and much more successful... with Kickstarter definitely being the big name in the space.

It turns out that ArtistShare's CEO, Brian Camelio, applied for a patent on the basic concepts of crowdfunding back in 2003, and, while it took a while, that patent (7,885,887 (http://www.google.com/patents/about?id=MNgFAQAAEBAJ&dq=artistshare)) was issued earlier this year, officially for "Methods and apparatuses for financing and marketing a creative work." You can read the details, but it basically describes exactly how most crowdfunding works today. Apparently, he then started contacting Kickstarter (and, one imagines, several other crowdfunding platforms), trying to get them to pay up. With Kickstarter, he apparently sent a couple of letters and then showed up unannounced at their offices one day.

After going back and forth with him for a bit, being threatened with a possible lawsuit, and noticing that Camelio had transferred the patent to a new operation called Fan Funded, which they believed was to be used for suing others for patent infringement, Kickstarter filed for a declaratory judgment (http://paidcontent.org/article/419-kickstarters-patent-battle-over-crowd-funding-/) saying that the patent was invalid and, even if it was valid, that they didn't infringe.

..."

Full article with comments @ http://www.techdirt.com/articles/20040706/030209.shtml

[Kludge]

Astrologist software creator Astrolabe claims it owns copyrights on timezone data, sues those who maintain public timezone databases. No joke.

"Wow! Via Slashdot (http://yro.slashdot.org/story/11/10/06/1743226/Civil-Suit-Filed-Involving-the-Time-Zone-Database), we discover that a company named Astrolabe, which appears to make astrology software, has ridiculously decided to sue the maintainers of the timezone database that nearly every Unix and Linux platform uses to set clocks to local time. Astrolabe apparently bought the rights to the database from The American Atlas, which is cited as a source in the timezone database. But... there's a problem: you can't copyright facts. And it's difficult to see how this information is anything but factual. We have the full legal filing embedded below, but the best analysis comes from The Daily Parker's Dave Braverman who breaks down the legal issues as follows (http://www.thedailyparker.com/PermaLink,guid,c5f28bae-4b9c-41ea-b7b7-8891ad63c938.aspx):
Is data about when time zone rules changed throughout history protected under copyright?
If so, who owns it?
If someone owns it, is the Olson database a derivative work under copyright law?
If the Olson database does, in fact, derive from the work in question, is it a fair use?
Just how stupid are these astrologists, anyway?
Of course, I'm pretty sure the answer to question (1) is no, which would answer all the rest of the questions, except for the final one. One assumes that Arthur Olson and Paul Eggert -- the two guys being sued -- will be pretty quick to file for dismissal, and one hopes that a judge tosses this one out quickly. It will also be interesting to see if the NIH and UCLA get involved. Olson works for the NIH and Eggert for UCLA -- and the timezone database is hosted by both organizations. Each of them, easily, could claim sovereign immunity (which may be why they're not included in the suit directly). Still, I can't see this getting very far... and wonder if it's at the level of ridiculousness that Astrolabe's lawyers might face sanctions for bringing such a ridiculous lawsuit.

Braverman, in his writeup, notes that if the case actually does get anywhere, it could create a massive nuisance for anyone who uses Linux. But he also points out how incredibly short-sighted the lawsuit is:
What's even stupider about this lawsuit is that comments in the database encourage people to buy the book. So even if Astrolabe owns the copyright to the facts about time zone rules—a troubling proposition—their republication in the Olson database increases the likelihood that they'll make money off it.
Once again, however, we see copyright holders thinking that you should pay them to advertise their works."

Original article, doc of the lawsuit, and comments @ http://www.techdirt.com/articles/20111006/11532316235/astrolabe-claims-it-holds-copyright-timezone-data-sues-maintainers-public-timezone-database.shtml

[Kludge]

Earlier, I made a thread on Monster Cable pushing for PROTECT IP for its ability to censor "rogue sites." (http://www.ronpaulforums.com/showthread.php?320866-PROTECT-IP-Will-Censor-quot-Rogue-Sites.-quot-Monster-Cable-PROTECT-IP-Advocate-Explains.) It's a vague term, but Monster Cable claims websites such as Ebay, Craigslist, and services like PriceGrabber are all rogue sites, merely because they allow people to purchased used items. This is an even more extreme version of Vernor v. Autodesk, which Apple used in their lawsuit to claim people do not own what they purchase, as they are merely renting the software. This would take it a step further, implying a company could actually revoke the ability to resell their product. .... Well, actually... Monsanto kind of already does that.

.... Anyway - there are more threats to the Internet than that. The DoJ is now threatening sports sites because COMMENTERS posted links to streaming websites. Formerly, this was protected, and this, along with another major threat where content creators may be able to sue forums for what commenters post (as Righthaven tried, and largely failed to do), poses a serious threat to forums such as this. Of course, due to the severity of the potential punishment, and the "official" people behind the threats, it's hard for websites like "Defending Big D" to resist operating as usual. Instead, they've written a nervous-sounding post telling posters they aren't allowed to post LINKS (which was formerly common sense as not an infringement by itself) to copyrighted content.

"An anonymous Dallas Stars hockey fan alerts us to the quite worrisome news that the Justice Department seems to think it's a valuable use of their time to threaten blogs and community sites that they could be held liable if anyone in their comments posts a link to infringing material. You can see it in a "Welcome" post on the Defending Big D blog (http://www.defendingbigd.com/2011/9/28/2455723/welcome-to-defending-big-d-a-dallas-stars-fan-community):
Streaming Links:

This is something I'll address in a separate post, but we can no longer allow links to be posted to online streams of the Dallas Stars games. While we have yet to be contacted, other SB Nation sites have been contacted by the Department of Justice. Because our site is 'allowing' these links to be posted, we can be held liable.Now, this raises all sorts of questions. Why is the Justice Department threatening blogs like this? Was it really the Justice Department, or was it ICE (a part of Homeland Security)? What other sites have been contacted beyond SB Nation? What is the Justice Department saying to these sites and is it an accurate reflection of the law? And why don't SB Nation and other sites point out to the Justice Department that, under the DMCA safe harbors, there is a clear process for the removal of links to infringing content -- and it also provides safe harbors for the sites themselves?

My guess is that the Justice Department and ICE, via Operation In Our Sites, are trying to implycriminal copyright infringement here (otherwise, why else would the DOJ be involved?). But that's a much higher bar, and it's unlikely that a comment could be criminal copyright infringement. The link itself would have to be for profit, for starters. And while SB Nation or the site might make money, that's entirely separate from the action of the user. Either way, this is quite worrisome and seems like a massive step out of bounds by the Justice Department.

..."

Full article with comments @ http://www.techdirt.com/articles/20111001/02333716168/justice-department-threatening-us-sports-blogs-because-commenters-linked-to-streaming-content.shtml

[Kludge]

Lots to post today. Judge decided to increase judgment against company for faulting the patent system after losing a judgment.

""On Friday, a Texas federal judge in the U.S. District Court for the Eastern District of Texas issued an astonishing order. In essence, it fined InnoLux because its CEO stated his belief, in China, that the US sometimes over-enforces patents (http://www.courthousenews.com/2011/10/04/40298.htm).

InnoLux admitted infringing some of Mondis's patents in connection with computer monitors. A jury found some of the infringement to be willful. So InnoLux was in a bad place, and was warming up to get skewered on damages. The judge (Judge Ward, who is famous for his scathing opinions) ordered that a 0.75% royalty be paid for all of the infringing monitors sold. But then the judge caught wind of a statement InnoLux's CEO made to a Chinese newspaper, that "patent infringement is 'being taken too seriously sometimes.'" The judge doubled the royalty rate to 1.5%. His basis?
"The court finds that this statement by InnoLux's CEO shows InnoLux's lack of respect for this court and the jury's verdict. It is also an affront to the U.S. patent system - a system of constitutional origin. The court, therefore, finds that this also warrants a strong enhancement because it further reflects the egregiousness of InnoLux's conduct."This is an astonishing usurpation of authority. The patent law does not require (or permit) damage enhancements based on evidence of a lack of respect for judges or verdicts. Instead, "upon a finding for the claimant the court shall award damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court." This means lost profits or a reasonable royalty or a little of both, but at least a reasonable royalty."

Much longer article and comments @http://www.techdirt.com/articles/20111005/11133116225/judge-makes-company-pay-more-infringement-because-ceo-complained-publicly-about-patent-system.shtml

[Kludge]

"Judge Refuses To Dismiss Twitter From Patent Lawsuit Concerning Patent On Interacting With Famous People Online"

Not much more to say than that.... http://www.techdirt.com/articles/20111007/02210416245/judge-refuses-to-dismiss-twitter-patent-lawsuit-concerning-patent-interacting-with-famous-people-online.shtml

[Kludge]

Ready for another gov't war? It probably doesn't involve who you'd think....! Taiwan! A patent war!

"Tim Swanson was the first of a few of you to pass on the news that the Taiwanese government is planning to put together a "patent bank" (http://spectrum.ieee.org/at-work/innovation/taiwanese-to-form-patent-bank-to-defend-local-companies) that would basically seek to buy up patents around certain technologies, and local Taiwanese firms share in the patent pool and effectively check patents out to use against others if threatened. Of course, this is similar to the original pitch that Intellectual Ventures made... and also similar to the claims of companies like RPX which basically tried to recreate the Intellectual Ventures model. Of course, IV also went on the offensive, rather than just the defensive. And, as Stephan Kinsella has pointed out (http://blog.mises.org/18682/taiwans-defensive-patent-bank/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+MisesBlog+%28Mises+Economics+ Blog%29), all the patent banks in the world won't save you if you get sued by a non-practicing troll who is immune from return patent lawsuits.

..."

"the article notes that South Korea and Japan have similar things"

http://www.techdirt.com/articles/20111011/17035916307/what-waste-taiwan-plans-to-create-patent-bank-to-protect-taiwanese-companies-against-patent-lawsuits.shtml

[awake]

Once you try to incorrectly apply property rights to ideas you destroy the whole idea of ideas.

[Kludge]

"Reader Susan sent over this tidbit. Apparently she was shopping for knitting needles, and came across a particular needle (http://www.knitpicks.com/needles/Options_Nickel_Plated_Fixed_Circular_Knitting_Need les__DKPFixedCables.html), under which was the claim that "the color purple is a trademark of CraftsAmericana Group, Inc."
http://i.imgur.com/ZdR91.png
(http://imgur.com/ZdR91)Susan wanted to know how someone could claim a trademark on the color purple. While a quick search didn't turn up the relevant trademark (I didn't look very hard), I'm guessing that it's quite similar to many other trademarks on colors. I tend to think that almost all "color trademarks" are pretty silly, but the idea is that if you use a color in such a way that your brand is totally identified with it, then perhaps you should have the right to trademark the use of that specific color in that specific market. Unfortunately, it doesn't always work that way. We've discussed in the past T-Mobile's trademark on magenta (http://www.techdirt.com/articles/20080331/134624706.shtml), which it used to threaten a news site, and which it tried (but failed) to use again Telia in Denmark (http://www.techdirt.com/articles/20080529/0320471256.shtml). The problem there was that Telia and T-Mobile don't compete in the same markets... and the magenta was a different shade.

That said, it certainly seems like CraftsAmericana's basic claim here is pretty broad. It doesn't say that the company has trademarked purple in specific markets for specific products, but implies (almost certainly falsely) that it honestly holds a full trademark on "the color purple" and can stop others from using it, even outside of its market. That's the part that I find most troubling. Just the setup of that "warning" seems designed to overly frighten people from using the color purple in perfectly legal ways."

Article by Mike Masnick of Techdirt. Original article & comments @ http://www.techdirt.com/articles/20111107/01412516653/color-purple-trademarked.shtml

[Kludge]

Thought trademarking the color purple was over-the-top? It isn't the only attempt to trademark purple...

"... Over in the UK, there was actually a legal battle going on over this, with Cadbury trying to trademark the color purple (http://www.thestar.com/business/article/1088604--the-colour-purple-belongs-to-cadbury), and competitor Nestle trying to oppose the efforts. However, the UK Intellectual Property Office apparently has no problem with trademarking colors and gave Cadbury the official trademark.


Nestle argued that a colour cannot be trademarked because colours are widely used in trade and purple was commonly in use by other companies when Cadbury applied for the trademark.

The registrar came down in favour of Cadbury, citing the results of research showing that consumers strongly associated the colour purple with Dairy Milk, which was the best-selling chocolate bar in the U.K. at the time of the application in 2004.


The reasoning behind all of this is a little bizarre. Just think for a second, if you were unfamiliar with the details of trademark law and realized that there was a legal dispute over who owned the color purple. How do you read the following two sentences and not wonder why anyone would ever be bothering about the ridiculous idea of trying to own a color.


The registrar came down in favour of Cadbury, citing the results of research showing that consumers strongly associated the colour purple with Dairy Milk, which was the best-selling chocolate bar in the U.K. at the time of the application in 2004.

Nestle scored some concessions. The registrar ruled that Cadbury had not shown that its use of the colour purple in relation to chocolate assortments was strong enough to be included.



It just feels like absolutely everyone involved in that dispute could have been doing some kind of work that actually mattered, rather than arguing over this."

Original article by Mike Masnick of Techdirt, viewable @ http://www.techdirt.com/articles/20111118/04123516814/color-purple-trademarked-again.shtml