Category: IP

Well, It’s a Start………

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The House of Representatives just passed a (rather weak) bill to reign in patent trolls:

The Innovation Act, a bill with measures aimed to stop “patent troll” lawsuits, passed the US House of Representatives this morning on a 325-91 vote. Several amendments that would have stripped out key parts of the bill were defeated.

Passage of the bill is a big step for patent reformers, which would have been hard to imagine even one year ago. However, patent trolls going after “Main Street” businesses like grocery stores and coffee shops have made headlines and enraged politicians from Vermont to California.

Majorities of representatives in both parties supported the bill. On the Republican side, 195 representatives voted in favor of the bill and 27 voted against, while 130 Democrats supported the bill and 64 opposed it. The White House has said it supports the bill, which must first pass the US Senate.

The key politician pushing the bill ahead thus far has been Rep. Bob Goodlatte (R-VA), chairman of the House Judiciary Committee. The most prominent opponent has been Rep. John Conyers (D-MI), the most senior Democratic member of that committee.

If passed in its current form, the bill will add to transparency in patent litigation and require patent holders to reveal who is profiting from a lawsuit. It will also allow lawsuits against customers to be stayed in certain circumstances and will require fee-shifting to the prevailing party in most patent cases.

………

Stronger action on demand letters is something that proponents of legislation may try to add in on the Senate side. Opponents, meanwhile, will still be looking to stall or kill the bill entirely.

The biggest change to the bill thus far has been the removal of an expanded review program, which could challenge business method patents at the patent office. That plank was strongly desired by anti-troll advocates, since it could have greatly lowered the cost of fighting some patents. But several key tech companies with large patent portfolios, including Microsoft and IBM, were opposed to the expansion of the review program and would likely not have supported the bill if that provision had remained.

This bill is weak tea, particularly with the “lame-ass patent review” provision being stripped from the program, but it passed by an overwhelming vote, which indicates that the political calculus is moving in the right direction.

The Juxtaposition of Jewish Ethics and IP

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Copryight, patent, and Pirkei Avot? Really?

Yes, really.

Harold Feld, public interest telco lawyer, and apparently a decent Talmudic scholar writes a well documented explanation of why our current IP regime is actually immoral under Jewish norms.

A sample:

As I shall explain, many people think that the debate around intellectual property and public policy involves a conflict between the first type – hasheli sheli v’shelcha shelcha (what’s mine is mine, what’s yours is yours) – and the second type “sheli shelch v’shelcha sheli” (what’s mine is yours, what’s yours is mine). The media (which come down firmly on the side of their owners for expanding copyright) frame the debate as the well-meaning but foolish ‘Information wants to be free’ v. the more intuitively appealing respect for ‘intellectual property.’ Unworldly academics and idealistic young hackers, we are constantly told, simply don’t understand that without a way to control and make money from things like copyright, patent and trademark we would have no publishing industry, no movie industry, no medicines and technology and other inventions.

In reality, however, the modern debate over intellectual property policy in the last 30 years actually takes place solely in the context of the first sentence of the Mishna. The question is not whether we should have copyright or patent or trademark in an abstract sense. In light of our constant creation of new rights of enforcement and burdens placed on others for non-infringing uses, such as the Digital Millennium Copyright Act and its “anti-circumvention provision,” and our efforts to force these ever expanding policies on other countries through trade agreements negotiated in secret, such as the recently reported Trans Pacific Partnership Agreement (TPP), the question is whether we have departed from ethical laws and increasingly come to resemble the injustice and cruelty of Sodom.

As an FYI to the gentiles reading this, the idea that Sodom and Gomorrah were destroyed for sexual improprieties is not a part of normative Jewish theology.

Rather, it was destroyed because of the greed of the people and the way that they treated foreigners.

Read the whole thing.

To the Jews among my readers, this would be an excellent d’var for Vayera.

A Victory for Copyright Sanity

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Google wins an federal court ruling for Google Books:

Google’s idea to scan millions of books and make them searchable online seemed audacious when it was announced in 2004. But fast-forward to today, when people expect to find almost anything they want online, and the plan seems like an unsurprising and unavoidable part of today’s Internet.

So when a judge on Thursday dismissed a lawsuit that authors had filed against Google after countless delays, it had the whiff of inevitability. Even the judge, Denny Chin of the United States Court of Appeals for the Second Circuit, said during a September hearing on the case that his law clerks used Google Books for research.

“It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders,” Judge Chin wrote in his ruling. “Indeed, all society benefits.” (Judge Chin handled the case in district court because he was a judge there when it began.)

The Authors Guild said it disagreed with the decision and planned to appeal. Google said it was “delighted” with the outcome.

I’m delighted too.

Generally the courts look at any technological advance as an excuse to expand IP holder privileges, and in this case, the judge actually looked at societal benefit, which is the purpose of our IP regime under the Constitution.

This is an astonishingly useful research tool, and copyright does not mean that the holder can extract every possible dollar for every use.

There is an increasing realization in society that expansive IP privilege is a hindrance to the well being of the society, when it should be an asset.

Thank You, Julian Assange

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Wikileaks has released a draft of IP provisions of the super-secret draft of the Trans Pacific partnership, and rather unsurprisingly, it sucks wet farts from dead pigeons: (See also NC’s analysis here and here)

The more you know about the odious Trans-Pacific Partnership, the less you’ll like it. It’s made for corporate intellectual property and profits

 Among the many betrayals of the Obama administration is its overall treatment of what many people refer to as “intellectual property” – the idea that ideas themselves and digital goods and services are exactly like physical property, and that therefore the law should treat them the same way. This corporatist stance defies both reality and the American Constitution, which expressly called for creators to have rights for limited periods, the goal of which was to promote inventive progress and the arts.

 In the years 2007 and 2008, candidate Obama indicated that he’d take a more nuanced view than the absolutist one from Hollywood and other interests that work relentlessly for total control over this increasingly vital part of our economy and lives. But no clearer demonstration of the real White House view is offered than a just-leaked draft of an international treaty that would, as many had feared, create draconian new rights for corporate “owners” and mean vastly fewer rights for the rest of us.

 I’m talking about the appalling Trans-Pacific Partnership agreement, a partial draft of which WikiLeaks has just released. This treaty has been negotiated in secret meetings dominated by governments and corporations. You and I have been systematically excluded, and once you learn what they’re doing, you can see why.
The outsiders who understand TPP best aren’t surprised. That is, the draft “confirms fears that the negotiating parties are prepared to expand the reach of intellectual property rights, and shrink consumer rights and safeguards,” writes James Love a longtime watcher of this process.

The Obama administration is rushing to reach a new deal intended to lower barriers to trade with a dozen Pacific Rim nations, including Japan and Canada, before the end of the year.

 But the White House is now facing new hurdles closer to home, with nearly half of the members of the House signing letters or otherwise signaling their opposition to granting so-called fast-track authority that would make any agreement immune to a Senate filibuster and not subject to amendment. No major trade pact has been approved by Congress in recent decades without such authority.

 Two new House letters with about 170 signatories in total — the latest and strongest iteration of long-simmering opposition to fast-track authority and to the trade deal more broadly — have been disclosed just a week before international negotiators are to meet in Salt Lake City for another round of talks.

 “Some of us have opposed past trade deals and some have supported them, but when it comes to fast track, members of Congress from across the political spectrum are united,” said Representative Walter B. Jones Jr. of North Carolina, who circulated the Republican letter.

 Without fast-track authority, however, the other countries in the negotiations might balk at American requests since they wouldn’t be sure the final deal would remain unchanged. And getting both houses of Congress to agree to the final deal might be close to impossible without the fast-track authority, which the Obama administration has requested and which is being pursued in the Senate by Max Baucus, Democrat of Montana and the chairman of the Senate Finance Committee, along with the top Republican on the committee, Orrin G. Hatch of Utah.

It’s not just liberal papers like the Guardian that are finding the draft extreme, so is The Washington Post, aka the former Kaplan Test Prep Company.

It should be noted that while the administration is sharing progress with a number of industries, they are treating sharing progress with the Congress like the NSA spying program, which has resulted in some pushback:

The Obama administration is rushing to reach a new deal intended to lower barriers to trade with a dozen Pacific Rim nations, including Japan and Canada, before the end of the year.

But the White House is now facing new hurdles closer to home, with nearly half of the members of the House signing letters or otherwise signaling their opposition to granting so-called fast-track authority that would make any agreement immune to a Senate filibuster and not subject to amendment. No major trade pact has been approved by Congress in recent decades without such authority.

Two new House letters with about 170 signatories in total — the latest and strongest iteration of long-simmering opposition to fast-track authority and to the trade deal more broadly — have been disclosed just a week before international negotiators are to meet in Salt Lake City for another round of talks.

“Some of us have opposed past trade deals and some have supported them, but when it comes to fast track, members of Congress from across the political spectrum are united,” said Representative Walter B. Jones Jr. of North Carolina, who circulated the Republican letter.

Without fast-track authority, however, the other countries in the negotiations might balk at American requests since they wouldn’t be sure the final deal would remain unchanged. And getting both houses of Congress to agree to the final deal might be close to impossible without the fast-track authority, which the Obama administration has requested and which is being pursued in the Senate by Max Baucus, Democrat of Montana and the chairman of the Senate Finance Committee, along with the top Republican on the committee, Orrin G. Hatch of Utah.

The TPP has been kept tightly secret because they know that the reality will create immediate and widespread opposition that will make the SOPA affair look like a tea party.

If it passes, it will be put over the top by Republican votes, which must boil the Tea Party’s ass.

Why the US Healthcare System Sucks Wet Farts from Dead Pigeons,

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How many of you have an Albuterol inhaler for Asthma?

It’s great, isn’t it?

The drug is out of patent, so it’s cheap, and it works.

It’s not like a big pharma would lobby to get the FDA to ban the cheap inhalers because of their miniscule use of CFCs, and then wrap new propellants in a patent web and jack up the price, right?

Oh, silly me, that IS what they did:

The arsenal of medicines in the Hayeses’ kitchen helps explain why. Pulmicort, a steroid inhaler, generally retails for over $175 in the United States, while pharmacists in Britain buy the identical product for about $20 and dispense it free of charge to asthma patients. Albuterol, one of the oldest asthma medicines, typically costs $50 to $100 per inhaler in the United States, but it was less than $15 a decade ago, before it was repatented.

 “The one that really blew my mind was the nasal spray,” said Robin Levi, Hannah and Abby’s mother, referring to her $80 co-payment for Rhinocort Aqua, a prescription drug that was selling for more than $250 a month in Oakland pharmacies last year but costs under $7 in Europe, where it is available over the counter.

………

 Unlike other countries, where the government directly or indirectly sets an allowed national wholesale price for each drug, the United States leaves prices to market competition among pharmaceutical companies, including generic drug makers. But competition is often a mirage in today’s health care arena — a surprising number of lifesaving drugs are made by only one manufacturer — and businesses often successfully blunt market forces.

 Asthma inhalers, for example, are protected by strings of patents — for pumps, delivery systems and production processes — that are hard to skirt to make generic alternatives, even when the medicines they contain are old, as they almost all are.

………

 But in the United States, even people with insurance coverage struggle. Lisa Solod, 57, a freelance writer in Georgia, uses her inhaler once a day, instead of twice, as usually prescribed, since her insurance does not cover her asthma medicines. John Aravosis, 49, a political blogger in Washington, buys a few Advair inhalers at $45 each during vacations in Paris, since his insurance caps prescription coverage at $1,500 per year. Sharon Bondroff, 68, an antiques dealer in Maine on Medicare, scrounges samples of Advair from local doctors. Ms. Bondroff remembers a time, not so long ago, when inhalers “were really cheap.” The sticker shock for asthma patients began several years back when the federal government announced that it would require manufacturers of spray products to remove chlorofluorocarbon propellants because they harmed the environment. That meant new inhaler designs. And new patents. And skyrocketing prices.

 “That decision bumped out the generics,” said Dr. Peter Norman, a pharmaceutical consultant based in Britain who specializes in respiratory drugs. “Suddenly sales of the branded products went right back up, and since then it has not been a very competitive market.”

 The chlorofluorocarbon ban even eliminated Primatene Mist inhalers, a cheap over-the-counter spray of epinephrine that had many unpleasant side effects but was at least an effective remedy for those who could not afford prescription treatments.

………

 A result is that there are no generic asthma inhalers available in the United States. But they are available in Europe, where health regulators have been more flexible about mixing drugs and devices and where courts have been quicker to overturn drug patent protection.

 “The high prices in the U.S. are because the F.D.A. has set the bar so high that there is no clear pathway for generics,” said Lisa Urquhart of EvaluatePharma, a consulting firm based in London that provides drug and biotech analysis. “I’m sure the brands are thrilled.”

………

And here is the money quote:

This year the price of Advair dropped 10 percent in France, but in pharmacies in the Bronx, it has doubled in the last two years.

For what it is worth this is not technically a failure of the free market.

These companies’ profit margins are being directly supported by the state. That is the nature of patents and other exclusive licenses that we grant, particularly in the drug industry.

Then we allow for these exclusive licenses to be extended ad infinitum through evergreening.

The problem is that we as a society allow people to patent nothing at all, and sometimes we grant exclusive right to people who didn’t invent anything at all, as in the case of colchicine, where exclusivity was granted for a study of the drug which consisted primarily of a survey of the historical literature.

The price of colcicine went from $0.09 a pill to $5.00 a pill.

An Important Lesson About How to Reduce Piracy

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Interesting. It appears that the expansion of Netflix into Canada had reduced piracy by ½:

Netflix CEO Reed Hastings dropped a surprising statistic during an interview with Dutch website Tweakers last week, as he made the rounds promoting the launch of Netflix Netherlands.

When asked if Dutch viewers would switch from piracy to Netflix, Hastings said sure, some will switch, and that piracy helps “create the demand” for easier, legitimate ways to watch video through the Internet. Pressed for examples of markets where Netflix has actually brought about a decrease in piracy, Hastings pointed to Canada. Here, he claims, “Bittorrent traffic’s down by about 50 per cent since Netflix launched three years ago.”

There are some facts in the entire copyright debate, particularly as applies to entertainment:

  • It’s inconvenient for people to pirate things.
  • They are willing to pay when the institutions who control the content aren’t dicks who make “legal” use of the products even more inconvenient because they want to wring every possible penny from their users.

Of course, it’s rather unlikely that the the powers that be are going to stop acting like a dicks, seeing as how they have the political pull to turn what should be civil infractions into felonies though their pet congresscritters.

H/t PP at the Stellar Parthenon BBS.

Today’s Must Read

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Public Knowledge’s Amicus Brief in WildTangent v. Ultramercial, or more accurately their summary of their brief, where they point out that obfuscating on a patent application does not make an idea non-abstract or original.

Or, to put this in a slightly earthier way, they argue that Utramercial, the holder of the “Patent” have engaged in a strategy of, “If you can’t dazzle them with brilliance, baffle them with bullsh%$.”

Today, Public Knowledge filed an amicus brief urging the Supreme Court to review an important case on software patents, WildTangent v. Ultramercial. The basic question in this case is whether a patent to a simple, abstract idea can be valid simply by tacking on enough legal and technical language to that idea, even if that extraneous language has no real meaning.

The patent in question is U.S. Patent No. 7,346,545. That patent basically describes a simple idea familiar to anyone who has watched videos on the Internet: the idea of taking a video available for purchase, and showing it for free in exchange for viewing an advertisement first.

If you’re thinking that this idea is too simple to be patented, you’re right. The specific legal concept, as the Supreme Court has said, is the “abstract idea,” which includes things like methods of financial hedging and algorithms for converting decimal to binary numbers. Abstract ideas, like laws of nature and physical phenomena, cannot be patented, because they are the “basic tools of scientific and technological work,” and “monopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it”—so said our highest court last year, in Mayo Collaborative Services v. Prometheus Laboratories.

Here is the kicker:

Sometimes the courts need a little help in understanding all of this technical stuff, and that’s where we came in. Our brief took the 349-word claim of the patent (for comparison, the 349th word of this blog post is this), and reduced it to 16 lines of computer code.

I have little doubt that most everyone would agree that 16 lines of computer code is not “intricate and complex computer programming.”

As an example, here are two steps of the process claimed in the patent.

a fifth step of offering to a consumer access to the media product without charge to the consumer on the precondition that the consumer views the sponsor message;

a sixth step of receiving from the consumer a request to view the sponsor message, wherein the consumer submits said request in response to being offered access to the media product;

a seventh step of, in response to receiving the request from the consumer, facilitating the display of a sponsor message to the consumer;


For all those words, here’s the computer code that implements them:

if (window.confirm(“View ad or buy?”)) {window.alert(selected_ad.text)

For those of you unfamiliar with JavaScript, this just asks the user whether to view an advertisement (the “window.confirm” part), and if the user says yes, then the advertisement is displayed (the “window.alert” part).

How many federal judges do JavaScript?

How many have done C, or FORTRAN, or even lowly Basic?

So Ultramercial figured that if they threw enough crap against the wall, and couched it in obscure technobabble, that a technically illiterate judge will see some “there” where there is no “there”.

This Has to be the Coolest Response to Blatant Plagiarism Ever

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Roll Tape

The boy band One Direction released a new song, Best Song Ever, which is blatantly cribbed from The Who’s 1871 asnthem Baba O’Reily. (see tape)

Pete Townshend has been remarkably sanguine about this, despite death threats from One Direction fans:

Legendary rockers The Who have announced they have no plans to ask One Direction to withdraw their new track Best Song Ever after a digital mob of rabid teenage girls bombarded them with death threats.

The English rock band issued the statement yesterday, weeks after the boy band released their hit song. From the day of its release, Best Song Ever had prompted various music columnists to make comparisons with the English band’s 1971 track Baba O’Riley.

The Twitterstorm first began brewing after a music reviewer on MTV.com commented about the track on 17 July: “[It] opens with a riff that sounds very similar to the Who’s Baba O’Riley.

A few days later, on ClickMusic, another reviewer slated the X Factor losers’ song, calling 1D’s songwriting team “creatively barren” and stating that “someone should call Trading Standards”.

The “Directioners” apparently tweeted and retweeted the article before the rumour began that Pete Townshend’s band was actually threatening legal action, although it had not.

………

Guitarist and songwriter Townshend, famed for smashing his guitar on stage, issued the following statement last night:

I like One Direction. The chords I used and the chords they used are the same three chords we’ve all been using in basic pop music since Buddy Holly, Eddie Cochran and Chuck Berry made it clear that fancy chords don’t mean great music – not always. I’m still writing songs that sound like Baba O’Riley – or I’m trying to!

It’s a part of my life and a part of pop’s lineage. One Direction are in my business, with a million fans, and I’m happy to think they may have been influenced a little bit by The Who. I’m just relieved they’re all not wearing boiler suits and Doc Martens, or Union Jack jackets.

If you have paid any attention to the British press in recent months, you may have got the impression that nasty, nerdy male trolls were solely responsible for onine death threats. Well, it appears that teenage girls are just as bad.

This is a remarkably menschlichkeit response on the part of Townshend.

I am not particularly surprised, he has always been rather philosophical about such things.

For the First Time in 27 Years, an ITC Import Ban has Been Overturned by the USTR

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One of the problems with our patent system is that the US International Trade Commission, can, and frequently does, ban imports of infringing products, which provides an additional way to allow patent trolls to extort productive companies.

This has become more of a problem since recent court rulings have made injunctive relief less likely.

The fact that the US Trade Repreresentative has overrruled the ITC is therefore a very big deal:

U.S. Trade Representative Michael Froman’s Aug. 3 decision on Apple found that a product ban wasn’t appropriate because the patent at the heart of the dispute was part of an industry standard and was supposed to be licensed at reasonable terms. Froman’s conclusion is expected to affect several pending cases at the U.S. International Trade Commission, including Ericsson AB and InterDigital Inc. (IDCC)’s claims against Samsung for infringing patented network standards technology.

“A huge swath of everybody’s patent portfolio has just been rendered impotent,” said Rodney Sweetland, a patent lawyer with Duane Morris in Washington. Standards patents “are dead on arrival” at the commission now, he said.

DOA, huh?  My heart bleeds borscht.  You can still go to court, where they actually have to prove their case.

The reason that the ITC has this power is the theory that patent violations constitute an illegal trade subsidies.

Hopefully, this particular method of patent abuse will see increasingly large numbers of smack-downs from the executive branch.

Hopper Wins

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Which is good.

If the networks had won, they would have tried to come up with a way to prevent people from going to the bathroom during the ads.

But the courts have affirmed the right for viewers to use ad skipping technologies:

A federal court decision Wednesday gave fresh support to a new technology that helps consumers avoid a basic irritant of television watching — the commercial.

Dish’s Hopper service, which automatically removes advertisements before consumers view recorded shows, is the latest technology to worry broadcasters. These companies have long reaped profits from a practice that is as old as the television itself — forcing viewers to watch ads before they can see the rest of a show.

But a growing slew of technology firms, from Amazon to Netflix, has roiled the industry by offering programs outside the traditional distribution channels that for years dictated what appeared on the living room television. For far less than what cable companies charge, these upstarts are giving consumers more control over what they watch and when they watch it, while enabling them to easily skip ads. Google, the owner of YouTube, became the latest to join this trend, unveiling a device on Wednesday that pumps online videos and other content directly into television sets.

Such innovations have raised questions about how many Americans are actually viewing commercials these days and cast a shadow over a basic way that television funds itself. Digital video recorders have become so common that many consumers fast-forward through ads. With Dish’s Hopper, people can watch shows free of commercials shortly after they are broadcast live.

Now that Hopper has received greater legal support, analysts expect cable companies, DVR providers and others who distribute television content to quickly offer similar services.

While the business fallout from this is unclear, if it had gone the other way, it would have been incredibly ugly for the end users.

I’m not reflexively supportive of technology, but the record in entertainment is clear:  Not only do innovations benefit the end user, it also creates new revenues for the content providers.

A Patent Troll Bites the Dust

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One of the worst of the parasite, Eolas, has had its patents invalidated:

The inventor of the Web, Tim Berners-Lee, had never testified in court before last year. In February 2012, he left Cambridge to fly down to Tyler, an East Texas city of about 100,000, to testify at a patent trial. It was the culmination of a bold campaign by a man named Michael Doyle to levy a vast patent tax on the modern web.

Berners-Lee was one of several web pioneers who came through the court during the course of a four-day trial, which ultimately convinced a jury to invalidate two patents owned by Eolas, the tiny patent-holding company that Doyle and his lawyers transformed into one of the most fearsome “patent trolls” of all time.

Now Eolas appears to be gone for good. The company mounted a lengthy appeal, but it was all for naught; this morning, a three-judge appeals panel affirmed the jury’s verdict without comment.

………

Pei-Yuan Wei created the pioneering Viola browser, a key piece of prior art, while he was a student at UC-Berkeley in the early 1990s. Scott Silvey, another UC-Berkeley student at that time, testified about a program he made called VPlot, which allowed users to rotate an image of an airplane using Wei’s browser. VPlot and Viola were demonstrated to Sun Microsystems in May 1993, months before Doyle claimed to have conceived of his invention.

Eolas claimed an tremendously broad patent on all forms of interactive web products.

Why the f%$# has Eolas been able to blackmail people for so long?

Seriously.

Oh, Crap

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Have you heard about MERS?

I don’t mean the fraudulent legal figleaf known as the Mortgage Electronic Registration System that is a plague upon home-owners, I am instead referring an actual plague to Middle East Respiratory Syndrome, a SARS like infectious disease with a 55% fatality rate centered in Saudi Arabia.

Discussions of this disease have been bouncing around the epidemiology world for a while, there have only been about 80 confirmed cases, but in a couple of months millions of pilgrims will be going to Saudi Arabia as a part of the Hajj:

When the Black Death exploded in Arabia in the 14th century, killing an estimated third of the population, it spread across the Islamic world via infected religious pilgrims. Today, the Middle East is threatened with a new plague, one eponymously if not ominously named the Middle East respiratory syndrome (MERS-CoV, or MERS for short). This novel coronavirus was discovered in Jordan in March 2012, and as of June 26, there have been 77 laboratory-confirmed infections, 62 of which have been in Saudi Arabia; 34 of these Saudi patients have died.

Although the numbers — so far — are small, the disease is raising anxiety throughout the region. But officials in Saudi Arabia are particularly concerned.

This fall, millions of devout Muslims will descend upon Mecca, Medina, and Saudi Arabia’s holy sites in one of the largest annual migrations in human history. In 2012, approximately 6 million pilgrims came through Saudi Arabia to perform the rituals associated with umrah, and this number is predicted to rise in 2013. Umrah literally means “to visit a populated place,” and it’s the very proximity that has health officials so worried. In Mecca alone, millions of pilgrims will fulfill the religious obligation of circling the Kaaba. And having a large group of people together in a single, fairly confined space threatens to turn the holiest site in Islam into a massive petri dish.

The disease is still mysterious. Little is understood about how it is transmitted and even less regarding its origins. But we do know that MERS is deadly, with a mortality rate of about 55 percent — a remarkably higher lethality than that posed by its close cousin, the severe acute respiratory syndrome (SARS) virus, which in 2003 terrified travelers across the globe but posed a fatality rate of only 9.6 percent. The MERS coronavirus is new to our species, so mild and asymptomatic infections seem to be rare, but the human immune response to infection is itself so extreme that it can prove deadly in some cases.

All this is going on while a Dutch lab is claiming rights to the species genome, which is crippling research on the disease.

This has all the hallmarks of a public health catastrophe.

MicroFlaccid Folds Like a Bunch of Overcooked Broccoli

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Still not a gamer, but I love this animated GIF

They have reversed themselves on their restrictive XBox One content policies:

YET ANOTHER UPDATE (5:24 Eastern): Microsoft has confirmed to Kotaku that the “family sharing” and digital cloud library access features that were planned to be in the Xbox One are indeed gone thanks to today’s policy reversal. Xbox one users will also apparently have to download a “Day One” patch to enable the offline mode.

 FURTHER UPDATE:

 “You can play, share, lend, and resell your games exactly as you do today on Xbox 360.” That is now the official word from Microsoft.

 Microsoft says it “imagined a new set of benefits such as easier roaming, family sharing, and new ways to try and buy games,” but that it also realized that “the ability to lend, share, and resell these games at your discretion is of incredible importance to you.”

 No Internet connection will be required to play offline Xbox One games; the Internet will only be required for a one-time initial system setup. There will be no limitations on sharing or selling game discs. Downloaded games will be playable offline, and there will be no regional restrictions on those games.

 On the downside, there will be no digital “family” sharing as was previously announced, and disc-based games will require the disc to be in the tray to be played.

Not surprising that they are killing “Family Sharing”. It was only in there as an excuse to kill the resale market.

I am a bit surprised that Microsoft came to its senses before it experiences months of disappointing sales.

On the Other Hand, This Decision is a Good One

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The Supreme Court upheld the right of the FTC to sue to prevent brand name drug manufacturers to bribe generic drug manufactures to keep them out of the market:

This case is an antitrust challenge to an increasingly common practice in the pharmaceutical industry. Brand-name companies faced with generic competition pay the would-be competitor an amount of money to stay out of the market. The payment comes in the form of settling a dispute over the validity or infringement of the brand-name company’s patent. Because generic entry reduces drug prices, these “pay for delay” or “reverse payment” agreements are alleged to reduce competition and increase drug costs. The Federal Trade Commission sued drug companies over one such deal. The court of appeals rejected that claim, explaining that the brand name’s patent includes the right to exclude competitors.

Today, by a vote of five to three, the Supreme Court reversed and held that the claim can go forward. Justice Breyer wrote the Court’s opinion, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Chief Justice Roberts dissented, joined by Justices Scalia and Thomas. Justice Alito was recused from the case.

While they did not rule that the payments were presumptively illegal, it does make such payments far more unlikely, since the right of review has been affirmed.

SCOTUS Strikes Down Human Gene Patents

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In yet another smack down to the increasingly patent crazy United States Court of Appeals for the Federal Circuit (Patent Court), the Supreme Court has ruled that the contents of the human genome are a discovery, not an invention, and so they cannot be patented:

Pronouncing what may seem like a patent truism, the Supreme Court ruled unanimously on Thursday that biotech researchers have to create something to get monopoly protection to study and apply the phenomenon. Because Myriad Genetics, Inc., “did not create anything,” the Court struck down its patent on isolating human genes from the bloodstream, unchanged from their natural form. Because Myriad did create a synthetic form of the genes, however, that could be eligible for a patent, the Court concluded.

The decision was a major blow to a company that believed it had a right to be the sole user and analyst of two human genes, mutations in which show a high risk, for women found to have them in their blood, of breast and ovarian cancer. But the ruling will give medical and scientific researchers, and family doctors, greater opportunity to help women patients discover their potential vulnerability to those types of cancer.

………

The scientific and legal key to the Court’s denial of patent protection to isolated, natural forms of DNA were these sentences: “It is undisputed that Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2 genes. The location and order of the nucleotides existed in nature before Myriad found them. Nor did Myriad create or alter the genetic structure of DNA.”

While that was not disputed, because the legal controversy focused rather on what Myriad claimed it did to locate and then isolate the forms of genetic DNA, those agreed-upon factors were enough to convince the Court that “Myriad did not create anything.” As Justice Thomas commented further: “To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention. Groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the [patent law] inquiry.”

I think that one of the reasons that this was a unanimous ruling was that it was a very narrow ruling, hence the caveats about their explicitly saying nothing about synthesized genetic material.

Still, it is a good ruling, and yet another much needed bitch slap to the Patent Court.

Our IP Regulatory Regime Does Not Work

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Case in point, Internet music streaming service Pandora has bought an FM radio station in South Dakota to reduce its royalty payments:

Pandora is angry about the royalties it’s paying to music publishers, so the company is making a bold move: It’s buying a terrestrial radio station in South Dakota mainly to score lower rates.

The radio station buy is the latest salvo in Pandora’s ongoing legal fight with the performance-rights group American Society of Composers, Authors and Publishers (ASCAP). Pandora says ASCAP discriminates against the company by charging it higher royalty rates, as well as letting publishers pull their song catalogs from Pandora while keeping them available for competitors.

“Certain powerful music incumbents see Internet radio as a threat to the status quo,” Christopher Harrison, Pandora’s assistant general counsel, wrote in a blog post published on The Hill.

To combat that alleged discrimination, Pandora bought the Rapid City, South Dakota, station KXMZ-FM for an undisclosed amount.

Terrestrial radio stations and the Internet properties that own them “were given preferential treatment” through an ASCAP agreement with the Radio Licensing Marketing Committee (RMLC) last year, according Harrison’s blog post.

Pandora says the KXMZ acquisition will let the company qualify for the lower-fee RMLC license. According to Pandora, ClearChannel-owned rival iHeartRadio has such a license because it also owns a terrestrial station.

I’m on Pandora’s side in all this.

Our current IP regime encourages this sort of regulatory arbitrage, and this does little to encourage the production or more music.

All it does is keep record company executives’ brothers-in-law in cocaine.

Why Species Patents Suck, Part Gazillion

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Stuck in the middle of an article about the Middle East Respiratory Syndrome coronavirus (MERS) is this tidbit about how a lab is claiming all rights to its genome, impeding research on the illness:

But impeding an effective response is a dispute over rights to develop a treatment for the virus. The case brings to the fore a growing debate over International Health Regulations, interpretations of patent rights, and the free exchange of scientific samples and information. Meanwhile, the epidemic has already caused forty-nine cases in seven countries, killing twenty-seven of them.

At the center of the dispute is a Dutch laboratory that claims all rights to the genetic sequence of the Middle East Respiratory Syndrome coronavirus [MERS-CoV]. Saudi Arabia’s deputy health minister, Ziad Memish, told the WHO meeting that “someone”–a reference to Egyptian virologist Ali Zaki–mailed a sample of the new SARS-like virus out of his country without government consent in June 2012, giving it to Dutch virologist Ron Fouchier of Erasmus Medical Center in Rotterdam.

“The virus was sent out of the country and it was patented, contracts were signed with vaccine companies and anti-viral drug companies, and that’s why they have a MTA [Material Transfer Agreement] to be signed by anybody who can utilize that virus, and that should not happen,” Memish said.

Though Memish referred to a “patent,” the Dutch team has not patented the viral genetic sequence but has placed it under an MTA, which requires sample recipients to contractually agree not to develop products or share the sample without the permission of Erasmus and the Fouchier laboratory. Memish said that the Dutch MTA was preventing Saudi Arabia from stopping the MERS-CoV outbreak, which appears to have started eleven months ago in the Eastern part of his country. The Dutch team denies the MTA is slowing work on the outbreak, saying it has given virus samples to any lab that has requested it.

If you thought that the idea of patenting software was bad, patenting genes and species is a whole new level of f%$#ed up.

In today’s world, when we are in the middle of a potential epidemic, our first priority is to make the world safe for scumbag profiteers.

Call Your Congress Critter

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The SHIELD act has been proposed to to rein in patent trolls:

Shell companies that threaten legal action over patent infringement without actually producing anything themselves could be driven out of business if the newly proposed and risibly backronymed Saving High-tech Innovators from Egregious Legal Disputes (SHIELD) Act becomes law.

In an all-too-rare display of US congressional bipartisanship, representatives Peter DeFazio (D-OR) and Jason Chaffetz (R-UT) announced the legislation, which would make the infringement accuser liable for both sides’ legal fees should they lose. Universities and companies that actually produce an end-product to sue about are exempt.

“These trolls are hampering innovation, slowing companies down and locking them up in lawsuits,” said Chaffetz at a press conference.

Basically, it requires the trolls to cover the other side’s court costs unless they can show that their suit had a reasonable chance of success, which means that fighting the trolls becomes a lot cheaper.

BTW, much like the banking system, much of the dysfunction in the banking system goes back to the Clinton administration”

In 1994, Bill Clinton broke the long-standing and utterly sensible tradition that an actual patent lawyer should be Commissioner of the United States Patent and Trademark Office, and instead appointed Bruce Lehman, who was at the time the chief lobbyist for the Software Publishing Industry.

Under Lehman’s leadership, the USPTO changed the rules to allow much broader patents to be issued, often spanning completely different technological areas. These types of patents are the troll’s weapon of choice, with some so broad they could cover pretty much anything on the internet, for example. At the same time the amount of patents issued by the office began to increase.

Lehman was also one of the main authors of the widely reviled Digital Millennium Copyright Act, and helped negotiate the Trade-Related Aspects of Intellectual Property Rights trade agreement. In 2006, he was inducted into the first International IP Hall of Fame by Intellectual Asset Management (IAM) magazine.

One of the distressing characteristics of the Clinton administration was its embrace of rent seeking as an economic model, whether it be banksters or patent trolls.

Why Big Pharma is the Problem, not the Solution

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In their never ending quest to extort rents from the rest of us, big pharma has a new tactic, it has established bogus “safety programs” that prohibit the sales of their drugs to generic manufacturers:

For decades, pharmaceutical companies have deployed an array of tactics aimed at preventing low-cost copies of their drugs from entering the marketplace.

But federal regulators contend the latest strategy — which relies on a creative interpretation of drug safety laws — is illegal.

The Federal Trade Commission recently weighed in on a legal case over the tactic involving the drug maker Actelion, and earlier this month a federal suit was filed in another case in Florida.

“We definitely see this as a significant threat to competition,” said Markus Meier, who oversees the commission’s health care competition team.

The new approach is almost elegant in its simplicity: brand-name drug makers are refusing to sell their products to generic companies, which need to analyze them so they can create the copycat versions. Traditionally, the generic drug makers purchased samples from wholesalers. But because of safety concerns, an increasing number of drugs are sold with restrictions on who can buy them, forcing the generic manufacturers to ask the brand-name companies for samples. When they do, the brand-name firms say no.

Brand-name companies say they are protecting themselves — and patients — in case the drugs are somehow used improperly. They say no law requires one company to do business with another.

Advocates for generic drugs say the practice could limit access to the low-cost drugs, which they say have saved more than a trillion dollars over the last decade. They say the companies that have most aggressively pursued the tactic tend to be those with drugs that are nearing the end of their patent life.

The problem is that Pharma can use its monopoly rents to continue to game the political system to f%$# the rest of us.

It needs to stop.

I Hope So

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Ars Technica asks, “Will the Supreme Court end human gene patents after three decades?“

I think that it likely that they role back patent protections.

These days, they only seem to take patent cases when the United States Court of Customs and Patent Appeals goes too far with patents.  (Which it does with mind-numbing regularity):

Since the 1980s, patent lawyers have been claiming pieces of humanity’s genetic code. The United States Patent and Trademark Office has granted thousands of gene patents. The Federal Circuit, the court that hears all patent appeals, has consistently ruled such patents are legal.

But the judicial winds have been shifting. The Supreme Court has never ruled on the legality of gene patents. And recently, the Supreme Court has grown increasingly skeptical of the Federal Circuit’s patent-friendly jurisprudence.

Meanwhile, a growing number of researchers, health care providers, and public interest groups have raised concerns about the harms of gene patents. The American Civil Liberties Union estimates that more than 40 percent of genes are now patented. Those patents have created “patent thickets” that make it difficult for scientists to do genetic research and commercialize their results. Monopolies on genetic testing have raised prices and reduced patient options.

On Monday, the high court will hear arguments about whether to invalidate a Utah company’s patents on two genes associated with breast cancer. But the legal challenge, spearheaded by the American Civil Liberties Union and the Public Patent Foundation, could have much broader implications. A decision could invalidate thousands of patents and free medical researchers and clinicians to practice medicine without interference from the patent system.

It’s very clear that a gene is a discovery, not an invention, but the patent court believes that you can patent a rainy day (I mean this literally: They approved a patent on weather derivatives in Bilski v. Kappos, which was later overturned by the Supreme Court. This court also allowed for patenting of tax deductions)