Category: IP

What a Stupid F%$#ing Idea

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If I had a time machine, I would go back in time to find the father of whoever came up with the idea of adding copy protections to JPEG images, and kick that man in the nuts so hard that he would be rendered sterile:

So much for hopes that the tech industry would back away from copyright protection any time soon. The Joint Photographic Experts Group recently launched a Privacy & Security initiative that potentially brings digital rights management (DRM) to regular JPEG images, not just the specialized JPEG 2000 format. The proposal could protect your privacy by encrypting metadata (such as where you took a photo), but it could also prevent you from copying or opening some pictures. Needless to say, that opens up a can of worms when it comes to fair use rights. If someone slapped DRM on a photo, you couldn’t use it for news, research or remixed art — many of the internet memes you know wouldn’t be possible.

This is so unbelievably stupid.

Ripper Patent Rulling In Oz

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The Australian Supreme Court just completely slapped down gene patents, which, with a bit of common sense, should be an end to that particular abomination in IP land:

Australia’s highest court has ruled unanimously that a version of a gene that is linked to an increased risk for breast cancer cannot be patented. The case was brought by 69-year-old pensioner from Queensland, Yvonne D’Arcy, who had taken the US company Myriad Genetics to court over its patent for mutations in the BRCA1 gene that increase the probability of breast and ovarian cancer developing, as The Sydney Morning Herald reports. Although she lost twice in the lower courts, the High Court of Australia allowed her appeal, ruling that a gene was not a “patentable invention.”

 The court based its reasoning (PDF) on the fact that, although an isolated gene such as BRCA1 was “a product of human action, it was the existence of the information stored in the relevant sequences that was an essential element of the invention as claimed.” Since the information stored in the DNA as a sequence of nucleotides was a product of nature, it did not require human action to bring it into existence, and therefore could not be patented.

 Although that seems a sensible ruling, the pharmaceutical and biotechnology industry has been fighting against this self-evident logic for years. The view that genes could be patented suffered a major defeat in 2013, when the US Supreme Court struck down Myriad Genetics’ patents on the genes BRCA1 and the similar BRCA2. The industry was hoping that a win in Australia could keep alive the idea that genes could be owned by a company in the form of a patent monopoly. The victory by D’Arcy now makes it highly likely that other judges around the world will take the view that genes cannot be patented.
………

 Striking down gene patents in Australia, as in the US, clears the path for new entrants to the gene testing market, which is likely to drive down prices. It could also spur more biomedical innovation by allowing researchers freedom to investigate previously patented genes and develop new therapies, without fearing potential lawsuits.

 If the judgement is followed by courts in other jurisdictions, and the whole idea of gene patents is rejected, the number of people whose lives could be saved will be correspondingly greater.

It has been patently* clear for decades that isolating genes is a process of discovery, and not invention, and hence they should not be covered by patents.

The biotech industry’s counter-argument has always been, “But we want our money!:

In a statement, Myriad also expresses its disappointment with the ruling. “The High Court’s decision comes at a critical time when we’re entering the golden era of personalized medicine,” it says, as GenomeWeb reports. “In order for personalized medicine to become a reality, strong patent protection is essential because it provides the research-based companies like Myriad with an incentive to continue to invest in R&D.”

(emphasis mine)

Basically, they are arguing that if we won’t allow them to patent their discoveries, they will take their marbles and go home.

There are two things wrong with this:

  • Patents are for inventions, not discoveries.
  • Allowing for rent seeking through patents makes it more likely that genetic products will will be released without adequate testing, because the potential profits are so huge.

And that is ignoring the fact that it is taxpayer funded research that have led to these discoveries.

*Pun not intended.

He Has to Be the Most Evil Ratf%$# in Business Today

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Remember Martin Shkreli?

He’s the contemptible greedhead who raised the price of Daraprim by 5500% when he got the rights to it.

After a storm of public outrage, he agreed to roll back the price to an unspecified degree.

Guess which drug has not come down a penny in price:

It’s been two weeks since Turing CEO Martin Shkreli announced he would scale back the price of his drug, and so far nothing has really changed.

The biotech leader came under fire last month for his 5,000% price hike of Daraprim, a drug that fights parasitic infections.

The drug, which rose from $13.50 to $750 seemingly overnight, left the biotech and pharmaceutical industries reeling, with corporations such as Valeant facing a lot of criticism for their similar price-hike moves.

In September, he told ABC News, “We’ve agreed to lower the price of Daraprim to a point that is more affordable and is able to allow the company to make a profit, but a very small profit.”

That hasn’t happened yet. A 30-day, 30-pill supply of Daraprim would cost me $27,006 at my local pharmacy.

That boils down to about $900 a pill, which includes the wholesale cost, along with specific pharmacy fees based on the zip code I gave the pharmacy.

So while the price of the drug hasn’t gotten any higher since Shkreli hiked it 5,000%, it hasn’t gotten any lower since he promised to reduce it either. Turing did not respond to Business Insider’s request for clarification about this price.

(emphasis original)

This ain’t business, this is terrorism.

Perhaps the President should consider a drone strike.

Today in IP Insanity

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The city of Inglewood, California attempted to use copyright to prevent people from posting videos of their city council meetings.

Thankfully, thee judge called bullsh%$ on the town’s arguments:

Joseph Teixeira doesn’t like Inglewood Mayor James T. Butts, so he makes Youtube videos featuring City Council meeting footage.

The Mayor and Council decided to silence their critic by paying to register the videos of their city meetings with the US Copyright Office, then spending $50,000 in taxpayer money to retain a lawyer to sue Teixeira for copyright infringement.

The court was unimpressed with Inglewood’s leaders: it ruled that the council meetings weren’t copyrightable; that councils can’t make money from public records; and that the videos — in the event that they used anything copyrighted — were fair use. Now they face the possibility that Teixeira will recover fees for his pro bono counsel — more tax dollars flushed away in an illegal bid to prevent a critic from speaking.

Then there’s the Streisand Effect: in bringing this action, the City of Inglewood increased traffic to Teixeira’s videos by five hundred percent.

(emphasis original)

It’s nice that the judge slapped them down firmly.

Increasingly, IP is used to censor criticism and to privatize the public space, and it is a bad thing.

IP Restrictions Run Amok

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The state of Georgia has characterized the act of posting its laws online as “terrorism”, clearly this is absurd:

Government officials have threatened “rogue archivist” Carl Malamud with legal action many times for his efforts to make public government documents widely available for free, but the state of Georgia has set a new standard for fighting this ridiculous battle: It’s suing Malamud for infringing its copyright of state laws by — horrors — publishing them online.

The state’s lawsuit, filed last week in Atlanta federal court, accuses Malamud of piracy — and worse, of “a form of ‘terrorism.'” His offense: Through his website, public.resource.org, he provides members of the public access to a searchable and downloadable scan of the Official Code of Georgia Annotated — that is, the entire body of state law. The state wants a court order forcing Malamud to stop.

Georgia and Malamud have been waging this battle for a couple of years, or ever since Malamud sent thumb drives bearing the scans to the speaker of the state House of Representatives in 2013. A cease-and-desist order, which Malamud rebuffed, came virtually by return mail.

This isn’t the first such battle Malamud has waged. For roughly two decades he’s been working to make public laws, codes and court documents, well, public. At almost every turn he’s been fought by government agencies that prefer to extract a fee from taxpayers for access, even though, as Malamud points out, the public pays for the work in the first place, via taxes.

………

The state’s own lawsuit acknowledges that the annotations are “valuable analysis and guidance regarding … state law.” And the core of its case isn’t that the annotations shouldn’t be broadly accessible, only that the state doesn’t want to pay the cost itself. LexisNexis shoulders the cost and in return gets the right to charge users, earning a profit.

If LexisNexis can’t recoup those costs because Malamud is providing a free alternative, the lawsuit asserts, the state “will be required to either stop publishing the annotations altogether or pay … using tax dollars.”

Well, yes. Isn’t that what taxes are for?

This is not something that the the state of Georgia should be playing anyone for this.

The state government has to have a copy of the laws and official interpretations in electronic form with annotations as a part of conducting business.

They don’t need to have LexisNexis extracting tolls from the citizenry to make this public.

The costs here are negligible to non-existent, and the assertion of copyright is absurd.

Nice That This Has Made The Times

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It appears that the mainstream media is finally noticing that a big problem in US healthcare is prices, and not people taking their children to the doctor for a case of the sniffles:

As complaints grow about exorbitant drug prices, pharmaceutical companies are coming under pressure to disclose the development costs and profits of those medicines and the rationale for charging what they do.

So-called pharmaceutical cost transparency bills have been introduced in at least six state legislatures in the last year, aiming to make drug companies justify their prices, which are often attributed to high research and development costs.

“If a prescription drug demands an outrageous price tag, the public, insurers and federal, state and local governments should have access to the information that supposedly justifies the cost,” says the preamble of a bill introduced in the New York State Senate in May.

In an article being published Thursday, more than 100 prominent oncologists called for support of a grass-roots movement to stem the rapid increases of prices of cancer drugs, including by letting Medicare negotiate prices with pharmaceutical companies and letting patients import less expensive medicines from Canada.

“There is no relief in sight because drug companies keep challenging the market with even higher prices,” the doctors wrote in the journal Mayo Clinic Proceedings. “This raises the question of whether current pricing of cancer drugs is based on reasonable expectation of return on investment or whether it is based on what prices the market can bear.”

………

“The industry has used R&D costs for the justification, but anyone who is reasonably sophisticated understands those are sunk costs and have little to do with pricing,” Mr. Rother said. “The more important information is any calculation of value. If the drug actually cures people, then what costs in health care are you saving?”

Dr. Jerry Avorn, a professor at Harvard Medical School and critic of some drug company practices, said the industry “has brought this on itself by charging prices that are so astonishing, it makes citizens wonder, ‘Where did this figure come from?’ ”

Yes, it does make citizens wonder.

What could help is ending evergreening, where a company uses a compliant FDA and US Patent Office to extend their legal monopolies, or the insane way in which the orphan drug act is used to grant legal monopolies on drugs that are literally thousands of years old.  (For example Colchicine has been in use for at least 3500 years, and when the company got exclusivity, it raised the price by a factor of 50)

The problem with drug prices, as well other medical prices, is that we have structures in place that allow corporations, which are by their very nature designed to function as sociopaths to extort excessive rents.

And we are exporting this model to the rest of the world through out trade deals like the TPP and TTIP, which will put the health of citizens in the signatory nations at the same sort of risk that exists here.

The Latest in Patent Abuse

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Colgate just filed a patent on Indian herbal recipes that have existed for thousands of years:

India has successfully blocked two patent claims of US consumer goods major Colgate-Palmolive, which wanted intellectual property right (IPR) cover on two oral compositions made from Indian spices and other herbs.

One patent battle took almost seven years, after the New York-based company filed a claim at the European Patent Register on September 29, 2008, for a composition containing botanical extracts from three herbs, including cinnamon, a common kitchen spice across India, known here as “dalchini”.

India opposed the claim using the traditional knowledge digital library (TKDL) database, created in the last decade to fight biopiracy.

The database, maintained by the Council of Scientific and Industrial Research (CSIR), submitted its plea in May 2011, and the European patent office ruled in India’s favour last month.

Two years after filing the first patent claim, Colgate-Palmolive moved another application in 2010 before the European patent office, seeking protection for another oral composition containing nutmeg, ginger, “Bakul” tree, camphor, cinnamon, turmeric, Indian banyan, black pepper, long pepper, Neem and clove. The solution is for treating oral cavity diseases.

………

The digital database, containing Ayurveda, Unani and Siddha formulations, and known medicinal properties of Indian herbs, was created following India’s successful IPR battles on haldi (turmeric), neem and Basmati rice.

The Union Commerce Ministry spent Rs 7.61 crore in 2000 as legal fee to reverse a patent examiner’s decision on basmati rice. “Going by that standard, the TKDL has saved upwards of Rs 500 crore so far, and more to come. In the next step, the government should not only add many more ancient books to the TKDL database but also incorporate knowledge from manuscripts,” said Gupta, who retired in 2013.

There needs to be some sort penalty when firms file fraudulent, because this sort of crap is endemic.

Keurig Kapitulates Koncerning K-Cup Kontrols

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Keurig, the coffee maker company, recently introduced version 2 of their coffee maker.

Among the various “upgrades” was the introduction of digital rights management systems that prevented the use of 3rd party cups and refillable cups.

Sales have cratered, and now have backtracked on their policies:

It’s been called the “razor blade business model.” A company sells a product like a battery-operated razor blade handle at a relatively low price in order to sell a complementary consumable product later, like the astoundingly costly Gillette Power Fusion Proglide cartridge, $18 for four blades, which then get thrown away.

But it could also be called the Keurig “K-Cup” business model. Once a consumer buys the coffee machine, the coffee drinker may spend as much as $50 to $60 per pound on the coffee contained in the K-Cups, considerably more than the cost of even Starbucks’s breakfast blend, which goes for about $11.95 per pound.

Some years back, thousands of Keurig single-serve machine fans found a cheaper alternative, however — refillable, non-disposable K-cups, little plastic coffee grounds holders, which the company graciously sold under the brand of “My K-Cup.”

Not only was it cheaper, but the coffee drinker had more choice, as “My K-Cup” could be filled with any brand of coffee off the shelf.

But in August 2014, when Keurig introduced its “2.0” line of coffeemakers, it stopped making “My K-Cup” for it and made the machine incompatible with any K-cups already in existence, as well as with any unlicensed disposable K-cups made by other companies.

It was $50 a pound and a trail of waste — or nothing.

That was two provocations, but two too much. The reaction was fast and furious, on sites such as Amazon, as well as on Keurig’s own social media sites.

………

Keurig’s explanation was a model of what not to tell angry consumers. The company said the change was for the consumer’s own good.

………

Clever competitors moved quickly to fill the void, with ways to, in effect, hack into the Keurig technology. The Rogers Family Company’s “Freedom Clip” was sold patriotically as “Our Gift To You and Everyone …. Freedom Of Choice!”

………

Worse for Keurig, as executives acknowledged Wednesday during its quarterly earnings briefing, sales of Keurig machines tanked and they began to accumulate on the shelves across the country. Sales of brewers and accessories declined by 23 percent, the company reported. Its stock price fell 10 percent in after hours trading.

With that, Keurig’s CEO did what he had to do. He capitulated Wednesday in a call with market analysts.

“We heard loud and clear from consumers,” said Brian Kelley, “who really wanted the My K-Cup back. We want consumers to be able to bring any brand and bringing the My Cup back allows that.

I am kind of surprised that they didn’t stick to their guns, and file DMCA cease and desist actions against their competitors.

That does seem to be the normal way of doing business in America:  Piss off your customers, and boost your profits through rent seeking behavior.

It’s a lot easier than making a better/cheaper product.  Just look at how your local phone and cable companies treat you.

We May Be Seeing the Beginning of the First Pandemic Caused by Patents

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We are seeing a major Middle East Respiratory Syndrome outbreak in Korea:

Two men have died of Middle East respiratory syndrome in South Korea, officials said Thursday. Theirs were the third and fourth confirmed deaths in what has become the largest outbreak of the virus outside the Middle East.

 As fear spread, the government of President Park Geun-hye was accused of not doing enough to contain the outbreak and of endangering the public by withholding information about it.

 At a news conference on Thursday, the influential mayor of Seoul, Park Won-soon, castigated the national authorities for not disclosing that a doctor at a Seoul hospital who was quarantined on Sunday with symptoms of the syndrome, known as MERS, had attended a gathering of more than 1,500 people in the southern part of the city only the day before.

 More than 1,160 schools and kindergartens in South Korea have been shut down temporarily, and many Koreans are wearing surgical masks in public.

It has a fairly high mortality rate (about 40%, down from earlier estimates of over 50%), largely due to “co-morbitities” (Things like diabetes, heart disease, asthma, COPD, etc.).  The mechanism seems to involve a phenomenon known as HLH, which is one of the cytokine storm syndromes (the immune system going haywire), which causes edema in the lungs, and things like secondary pneumonia.

Historical note:  The lethality of Spanish Influenza was also largely caused this cytokine storm/pneumonia mechanism.  (Got your attention now?)

Note also that the cytokine storm tends to effect young adults more than the rest of the population. (I definitely have your attention now.)

One problem with dealing with what is (at this time) a small problem, is that, using purloined samples, the Erasmus Medical Center in Rotterdam sequenced the virus, and filed a patent on the genome, preventing timely research on things like vaccines and antiviral medications:

In the ongoing investigation of the MERS virus, a team from Erasmus Medical Center in Rotterdam received two patient samples from Dr. Ali Mohamed Zaki, an Egyptian scientist working in Jeddah, Saudi Arabia. After sequencing the MERS DNA, EMC claimed ownership of the samples. EMC now requires scientists hoping to work on the MERS problem to sign legal agreements with Erasmus. The U.S. Centers for Disease Control and Prevention (CDC) is still waiting to receive samples of MERS for testing that were collected in October 2012 because the legal teams from the CDC and Erasmus cannot negotiate agreeable terms for a material transfer agreement. As a result of these legal delays during a disease outbreak, Margaret Chan, director-general of the World Health Organization, publicly criticized Erasmus for putting patent laws ahead of protecting “your people.”

I have covered these issues here.

Labs cannot do research because the Erasmus Medical Center has this tied up in patents, even though it is an discovery, and invention which is what has traditionally been required for patents.

Right now, MERS, a coronavirus,  is not that contagious because, unlike some of its near relatives in that viral family like the common cold, because, unlike the cold, it lurks deep in the lungs, as opposed to the nose and sinuses, so coughing and sneezing out virus is far less likely.

At least, it’s not that contagious right now. 

I don’t know about you, but I’d like to see a vaccine, and perhaps some antiviral drugs, before it develops an affinity for sinus tissue, and starts behaving more like measles.

That cannot happen, because of our current insane patent regime.

Democrats Need to Learn to F%$# the Mouse

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The Democratic Party has found a generally friendly reception in Hollywood, and as a result, they have been at least as supportive of draconian and stupid legislation and regulation to increase the profits of Hollywood.

The Obama administration has now taken this to its absurd extreme, and has has filed an amicus brief with the Supreme Court supporting Oracle’s claim that APIs should be copyrightable:

The Justice Department is weighing in on the hot-button intellectual property dispute between Google and Oracle, telling the Supreme Court that APIs are protected by copyright.

 The Obama administration’s position means it is siding with Oracle and a federal appeals court that said application programming interfaces are subject to copyright protections. The high court in January asked for the government’s views on the closely watched case.

 The dispute centers on Google copying names, declarations, and header lines of the Java APIs in Android. Oracle filed suit, and in 2012, a San Francisco federal judge sided with Google. The judge ruled that the code in question could not be copyrighted. Oracle prevailed on appeal, however. A federal appeals court ruled that the “declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection.”

 Google maintained that the code at issue is not entitled to copyright protection because it constitutes a “method of operation” or “system” that allows programs to communicate with one another.

 “That argument is incorrect,” the administration told the justices.

 In an amicus brief, computer scientists urged (PDF) the Supreme Court to reverse last year’s appeals court decision. “The Federal Circuit’s decision poses a significant threat to the technology sector and to the public,” they wrote. “If it is allowed to stand, Oracle and others will have an unprecedented and dangerous power over the future of innovation. API creators would have veto rights over any developer who wants to create a compatible program—regardless of whether she copies any literal code from the original API implementation. That, in turn, would upset the settled business practices that have enabled the American computer industry to flourish, and choke off many of the system’s benefits to consumers.”

Does the court really want operating system vendors to pick and choose who can write software, and what sort of software can be written, on their systems.

This is nuts. The purpose of copyright is to, “To promote the Progress of Science and useful Arts,”* and there is no way that expanding copyright in this manner does anything to promote progress.

This is insane, and this sort of  IP extremism is at the heart of much that is wrong with things like the DMCA, the TPP, Evergreening, and the continual extension of copyright because Disney does not want Steamboat Willie to enter the public domain.

This is nuts.

*http://en.wikipedia.org/wiki/Copyright_Clause

Stupid Lawyer Tricks………

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A lawyer for the sorority Phi Sigma Sigma has sent a DMCA take-down notice to the Penny Arcade forums alleging misappropriation of trade secrets. (See also here)

They have also apparently sued the poster.

There, are of course any number of problems with this:

  • The Digital Millennium Copyright Act applies to copyright, not trade secrets.
  • The idea that the oaths, robes, secret handshakes, secret knocks, and seating arrangements are trade secrets is kind of laughable.
  • The post was made 3½ years ago, and has been publicly available since then, so the idea that it is a secret any more is ludicrous.
  • The Streisand Effect, wherein an attempt to censor information results in its wider dissemination.

In any case, this makes the description of rituals on Penny Arcade a legitimate topic for discussion.

Phi Sigma Sigma (PSS) secretly stands for Philanthropic Social Society. However, this is never written down or recorded (until now) because it is so “sacred”. The Handshake consists of a series of motions. Member A first begins with the pointer finger and the thumb surrounding Member B’s pointer finger and thumb. This is the “Phi”. Then Member A wraps the remaining fingers, middle, ring and pinky around the hand as a symbol of the “Sigma”. Depending on who is the senior member, the pinky finger is wrapped around the older member’s hand. Next is the hand knock. It goes Knock. Pause. Knock. Pause. Knock, knock, knock. The meetings are set up usually with the President, VP and other officers sitting at the front. The President wears a yellow or gold robe and the officers wear royal blue robes. The remaining members sit across from the officers in a pyramid formation with the base closest to the officers and the apex farthest from the officers. Members are seated by class order, then by alphabetical order. The table at which the President and Vice President are seated consists of candles on each side. Two gold candles and one blue at each corner of the table. Members usually recite an oath, “We, the members of Phi Sigma Sigma, promise to keep secret and sacred all of our proceedings.” The way to enter the pyramid is by using the hand knock to notify the members you are wanting to enter the room. The President will respond back with her gavel by repeating the knock. The person will enter then travel to the apex of the pyramid formation. The President will say the secret and sacred words “Remove the Veil” and then the member will respond back with the Chapter’s name, example, “Zeta Eta.” The Gold and King Blue symbolize “Perpetuity” and “Sincerity”. At initiation, blue “veils” (tulle from the local fabric store) are placed on the heads of the potential new members and are later removed to symbolize some sort of occult transformation and that they are full-fledged members.

This story has made it to the ΦΣΣ Wikipedia page I think that it’s time to understand that it’s game over, and any additional attempt to suppress this information serves neither the public nor the sorority.

There is Now a Nazi Definition of Chutzpah………

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The descendants of Joseph Goebbels, the Nazi Minister of Propaganda, are suing Random House demanding royalties for the use of his quotes in the book Goebbels: A Biography:

The estate of Joseph Goebbels, Adolf Hitler’s minister of propaganda, is taking legal action against the publisher Random House over a new biography, claiming payment for the use of extracts from his diaries.

Cordula Schacht – a lawyer whose own father, Hjalmar Schacht, was Hitler’s minister of economics – is suing Random House Germany and its imprint Siedler, over the book Goebbels, by Peter Longerich, professor of modern German history at Royal Holloway, University of London.

Longerich, an authority on the Holocaust and Nazi era Germany, drew extensively on Goebbels’ diaries in his biography, which was published in Germany in 2010. Now those same passages from the diaries are set to appear in the English ­edition, which Penguin Random House UK and its imprint Bodley Head will publish on 7 May.

Rainer Dresen, general counsel of Random House Germany, told the Guardian that an important principle was at stake. “We are convinced that no money should go to a war criminal,” he said.

Agreed, Mr. Dresen.

Not only is this chutzpah, it’s insane, even when not considering the overweening nature of the international copyright regime.

Today in IP Insanity

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Automakers are petitioning the Library of Congress prevent backyard mechanics from repairing their own cars:

Automakers are supporting provisions in copyright law that could prohibit home mechanics and car enthusiasts from repairing and modifying their own vehicles.

In comments filed with a federal agency that will determine whether tinkering with a car constitutes a copyright violation, OEMs and their main lobbying organization say cars have become too complex and dangerous for consumers and third parties to handle.

Allowing them to continue to fix their cars has become “legally problematic,” according to a written statement from the Auto Alliance, the main lobbying arm of automakers.

The dispute arises from a section of the Digital Millennium Copyright Act that no one thought could apply to vehicles when it was signed into law in 1998. But now, in an era where cars are rolling computing platforms, the U.S. Copyright Office is examining whether provisions of the law that protect intellectual property should prohibit people from modifying and tuning their cars.

Every three years, the office holds hearings on whether certain activities should be exempt from the DMCA’s section 1201, which governs technological measures that protect copyrighted work. The Electronic Frontier Foundation, a nonprofit organization that advocates for individual rights in the digital world, has asked the office to ensure that enthusiasts can continue working on cars by providing exemptions that would give them the right to access necessary car components.

This is under the anti-counterfeiting provisions of the DMCA, which not only prevents copying, it prevents “unauthorized access”, and the auto industry is attempting to lock down their cars to the backyard mechanic, and possibly the independent mechanics as well.

Do you want to have no alternative to price gouging by the dealer on maintenance?

That Sound You Hear is the Revolving Door Spinning Fast Enough to Generate a Sonic Boom

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US District Judge Leonard Davis, presiding judge of the Eastern District of Texas, the favorite venue for patent trolls, has retired from the bench and joined the largest IP law firm in the nation:

US District Judge Leonard Davis said this week he’s going to leave the bench to join Fish & Richardson, a large law firm focused on intellectual property.

Davis, who has presided in the Eastern District of Texas since 2002, has one of the most active patent dockets in the nation and has presided over some of the biggest technology lawsuits of the past decade. Corporate Counsel magazine reported this week that he has handled more than 1,700 individual IP cases as a judge. Before becoming a judge, he worked for 23 years in private practice.

Statistics for 2013 showed 263 new patent cases being assigned to Davis, about one-sixth of the 1,700 patent cases that were filed in the district, the busiest in the nation. Only four other judges, three in Delaware and one in East Texas, had more patent cases assigned to them.

It was Davis and another former East Texas judge, T. John Ward III, who oversaw the Eastern District as it became a hotspot for patent lawsuits—especially Tyler, where Davis’ courtroom is, and Marshall, where Ward sat.

………

Davis will be the third federal judge in the Eastern District to leave the bench for private patent practice in recent years. Former Judge T. John Ward, the grandfather of the Eastern District patent practice, was a judge from 1999 until 2011 before leaving for private practice. A third federal judge, Chard Everingham, is now a partner in Akin & Gump’s Longview office. Everingham was a US magistrate judge in Marshall, where he often oversaw full patent trials due to the court’s heavy load and was Ward’s permanent law clerk for seven years before that.

Both Davis and Ward also have sons who are attorneys with patent-focused legal practices. T. John “Johnny” Ward Jr. founded the small firm of Ward & Smith, which his father joined. Bo Davis, Judge Davis’ son, is a solo practitioner in Longview.

I understand the justification for IP law.

Basically, it comes down to allow rent seeking behavior to, “To promote the Progress of Science and useful Arts.”

Unfortunately, rent seeking is an inherently corrupting activity, because it gives people the ability to get money for nothing.

Thus we see judges joining IP firms, and judges’ kids joining lucrative IP law firms.

It’s destroying our economy, and it needs to stop.

It Looks Like the Blowback from Patent Overreach Continues………

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We are now seeing venture capitalists and other movers and shakers coming down hard on patent trolls:

What’s the biggest difference between the letter about patent trolls that prominent VCs sent to Congress in 2013 and the letter (PDF) they sent out today? Four times as many names.

In total, 140 investors in startup companies have signed a letter to Congress asking them to implement changes to patent laws that have been debated for more than two years now. The move looks to keep one important fact front-and-center: “patent trolls,” companies in the business of suing over patents, aren’t just a plague for tech giants—they are a huge problem for medium- and small-sized companies as well.

“When a troll sues, or even threatens, a small startup, the results can be disastrous,” the letter states. “Many of us have seen young companies fail in the face of such threats.”

Among venture capital investors, 70 percent say their portfolio companies have been hit with patent threats, mostly from trolls. It’s a situation which the letter calls “not sustainable.” The letter continues:

Our Constitution favored a patent system to incentivize innovation and benefit all Americans. Unfortunately that system has been hijacked by some intent on exploiting Patent Office weakness, and all too frequently it now hinders innovation and chills investment, harming the new companies it was designed to foster and imposing a patent troll tax on new technologies.

The letter asks for patent reform legislation that includes provisions for easier fee-shifting, protections for end users of technology, limits on the scope of discovery, and increased transparency requirements. Under such circumstances, the group hopes patent owners would have to include more information in any lawsuits or demand letters they might send.

IP in general, and patents in particular, are a rent seeking behavior that we as a society approve of because of the the effect, as defined by the Constitution, “To promote the Progress of Science and useful Arts,” is considered to be a societal benefit.

This makes IP law public interest law, and until we reevaluate our copyright and patent regimes through this lens, we are going to end up with parasites like NTP and Intellectual Ventures sapping innovation and vitality ad infinitum.

1000 Words on Big Pharma Research Spending

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9 Out Of 10 Big Pharma Companies Spent More On Marketing Than On R&D

I would also note that 84% of the basic R&D funding is by the taxpayers.

What I am talking about is the research that discovers the basic science that leads to drugs.

I would argue that if we were to repeal the Bayh-Dole act, and once again require that federally funded inventions be assigned to the federal government, we would get more innovation, because universities would not be acting like private companies regarding their (our) inventions, and it would save enormous amounts of money, particularly with regard to pharmaceuticals.

The Washington consensus, which is that no matter how badly the private entities loot the rest of society, we must privatize everything, because ……… Capitalism!

It’s why we have hepatitis C drugs that are costing over $1,000.00 a pill.

As an alternative, have the government fund taking basic research to a marketable drug, and then allow drug manufacturers to bid for the right to manufacture those medications.

H/t The Big Picture.

Muck Fyhrvold

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Intellectual Ventures, the patent troll founded Nathan Myhrvold, has won its first patent suit, but it appears to be a Pyrrhic victory, with a small award, and a denial of ongoing royalty payments:

More than four years after it launched its first waves of lawsuits, the world’s biggest “patent troll” has won its first victory in a jury trial.

Late Friday, a Delaware jury ordered Symantec to pay $17 million to Intellectual Ventures, the Washington-based “invention marketplace” created by ex-Microsoft CTO Nathan Myhrvold, which boasts more than 30,000 patent assets.

In its verdict [PDF], the jury found that Symantec had infringed two US patents, numbered 5,987,610 and 6,073,142. A third patent, 6,460,050, was found to be not infringed.

The complaint [PDF], filed in 2010, accuses Symantec’s Brightmail Gateway and Web Gateway of infringing the ‘142 patent. That patent was filed in 1997 by Utah’s Park City Group and essentially describes a system for distributing e-mail according to a set of predetermined “business rules.”

The ‘610 patent originated with Ameritech, later bought by AT&T. The ‘050 patent was filed in 1999 by two columnists for computer magazine InfoWorld, Brooks Talley and Mark Pace.

While jurors sided with Intellectual Ventures, they awarded the patent holder less than six percent of the $299 million its lawyers sought, according to a Symantec spokesperson. The verdict form indicates the company was also asking for ongoing royalty payments, which the jury rejected.

“We are pleased the verdict came back for substantially less than the amount that Intellectual Ventures was seeking, and are considering our options to reduce the damages even further,” the spokesperson said via e-mail.

In a statement, IV expressed gratitude to the jury for upholding the patents’ validity. “We remain committed to defending inventor rights and protecting the interests of our investors and customers,” said IV’s head of litigation, Melissa Finocchio.

Admittedly, it was Symantec that won, and I really hate their software, I always felt that their Norton AV was worse than the viruses that it was protecting against, but this is clearly a victory, albeit not a complete one, against the patent trolls.

Unfortunately, on appeal, it goes to the Patent Court (the United States Court of Appeals for the Federal Circuit) who would slap a patent on a rainy day, (in fact that court literally did allow for a patent on a rainy day) and my guess would be that they would not be a friendly venue for Symantec.

Am I a Bad Person to Experience Unalloyed Glee at the Misfortune of Others?

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That’s Gotta Hurt!

Well, let me clarify:

I am talking about one entity specifically………

I’m talking about one entity who was caught trying to deceive regulators specifically………

I’m talking about one entity who was caught trying to deceive regulators and defraud the public specifically………

I’m talking about one entity who was caught trying to deceive regulators and defraud the public specifically whose business model is primarily rent seeking………

OK, spoiler alert, it’s Monsanto, who just had a fraudulent patent revoked:

Patent EP1812575 held by Monsanto has been revoked by the European Patent Office (EPO) after the international coalition No Patents on Seeds! filed an opposition in May 2014.

A further opposition was filed by Nunhems / Bayer CropScience. In November 2014, Monsanto requested that the patent be revoked in its entirety and the EPO complied with this request.
The patent covered conventionally bred tomatoes with a natural resistance to a fungal disease called botrytis, which were claimed as an invention. The original tomatoes used for this patent were accessed via the international gene bank in Gatersleben, Germany, and it was already known that these plants had the desired resistance. Monsanto produced a cleverly worded patent in order to create the impression that genetic engineering had been used to produce the tomatoes and to make it look ‘inventive’.

“Revoking this patent is an important success. It was more or less based on a combination of fraud, abuse of patent law and biopiracy. The patent could have been used to monopolise important genetic resources. Now breeders, growers and consumers have a chance of benefiting from a greater diversity of tomatoes improved by further breeding”, says Christoph Then, a coordinator of No Patents on Seeds!. “The intended resistance is based on complex genetic conditions, which are not known in detail. So genetic engineering is clearly not an option in this case.”

It would be nice if patent law were changed to invalidate gene and species patents, but it’s a start.

Not What I Would Expect from the Koch Suckers at the Cato Institute

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Considering their background, that of an Ayn Rand inspired think tank, I would think that their attitude toward IP, copyright and patents, would be one of absolute support, but here is an article where describes our current regime as regressive rent seeking:

………

All three of these critical national problems derive from the same source. We often talk about the last third of a century as an era of deregulation and the expansions of markets. And in certain areas that is certainly true. But the most important market rigidities that have been eliminated have been those that protected those from the middle class on down. In fact, the great paradox of the last third of a century is that we have actually had an explosion of regulation in this “supposedly deregulatory” era — but regulation that has the effect of redistributing, sometimes dramatically, upward.

A few examples will suffice to make the point. Intellectual property protections, especially patents and copyright, have been expanded dramatically over this period, both in time (through patent and copyright extensions for existing IP) and across space (by using trade agreements to push American IP principles into foreign law). While there is an argument that this expansion has actually reduced innovation, there is no doubt that it has allowed existing firms to use the force of law (rather than the market) to enrich themselves by reaching further into the pockets of consumers.

………

The article is actually fairly tepid in its conclusions, but considering that this is coming from the Cato institute, it does indicatge that the push-back against the American model of over aggressive IP protections is becoming more broadly accepted across the ideological spectrum.

It’s the First Monday of October………

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Which means that the Supreme Court has begun its new session.

Rather unsurprisingly, the court punted on gay marriage, declining to hear any of the appeals of the recent ruling striking down gay marriage bans.

This has the effect of massively expanding gay marriage, or the recognition of gay marriage:

With not a single dependable hint of its own constitutional view of same-sex marriage, the Supreme Court in one fell swoop on Monday cleared the way for gays and lesbians to wed in a batch of new states — starting first in five more states, and probably adding six more in the coming weeks. If that happens in all eleven, it will mean that same-sex marriages would then be legal in thirty states and Washington, D.C.

 In seven one-line orders, released without explanation and with no report on how any Justice voted, the Court surprisingly refused to review any same-sex marriage case now before it and, in the process, prepared to lift a series of orders that had delayed such marriages while the issue remained in the Court. Almost no one had expected that to happen.

 It may take a few weeks for the Court’s action to take effect in real-world terms, in the geographic areas where federal appeals courts have struck down bans in five states — the decisions that the Justices have now left intact. Because those appeals court rulings are binding on all federal courts in their regions, those decisions almost certainly dictate the outcome in six more states.

As Maddow noted, it only takes 4 judges to put a case up for review, and the 4 right wing judges voted to support DOMA in US v. Windsor, it means that at least one judge (My money is on Roberts) who voted against gay rights voted against reviewing the cases.

It is either an acknowledgement by one of the conservative justices that society has changed, or it it a tactical decision, hoping that the next justice will be appointed by a Republican to replace Ginsbert.

In addition, we have a very interesting 4th amendment case,  where the question of whether a search is legal if the stop is is based on a misunderstanding of the law.

We also have a patent case, Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., where the court is going to review whether the United States Court of Appeals for the Federal Circuit (Patent Court) can review the facts presented in the district court on appeal, or only address matters of law or “clear error.”  (Interestingly enough, the Patent Court ruled against the patent, and the district judge ruled for the patent.)

The fact that the Supreme Court is taking it implies to me that at least 4 justices are looking to slap down the Patent Court yet again, which has for a while engaged in a de novo review of patents when it heard appeals.

I’m also interested in Tibble v. Edison International, where workers sued their employer, because their retirement plans were high fee plans, because Edison was getting kickbacks from the plan manager.

It’s actually a statute of limitations case, since the investment choices were initially made more than 6 years before the suit was filed, but the plan was maintained for long enough that the last day was within the statute of limitations.

More on other cases here.