Category: IP

Nice Golden Egg, Bird. See the Farmer With the Axe?

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In a development that should surprise no-one following Comcast’s purchase by NBC, Hulu will start requiring a cable account for access:

Viewers who stream network TV shows may soon discover the free ride is not so free.

Hulu, which attracted 31 million unique users in March under a free-for-all model, is taking its first steps to change to a model where viewers will have to prove they are a pay-TV customer to watch their favorite shows, sources tell The Post.

In fact, the move by Hulu toward the new model — called authentication because viewers would have to log in with their cable or satellite TV account number — was behind the move last week by Providence Equity Partners to cash out of Hulu after five years, these sources said.

And it’s not just Hulu making it tougher for cable-cutters to stream shows and other content.

Fox, owned by News Corp., which also owns The Post, is expected to begin talks soon with Comcast on a TV Everywhere deal that will require authentication. Plus, Philadelphia-based Comcast is expected to switch to an authentication model for this summer’s Olympic Games (see story at right).

The move toward authentication is fueled by cable companies and networks looking to protect and profit from their content.

Their content?

With all due respect to the fine gentlemen at Comcast, about the only work of convincing fiction that they produce are their own advertisements.

It also appears to be a violation of their agreement that the FCC required for the NBC/Comcast merger:

“The Federal Communications Commission (FCC) was asked to include as a condition of Comcast’s takeover of NBCU that subscription to a pay-TV service not be required for access to Hulu,” said Public Knowledge President Gigi Sohn. “It is a shame the Commission declined to do so.”

Free Press saw it differently. “This sudden move to big cable’s preferred business model raises serious questions about whether Comcast is violating the conditions of its merger with NBCUniversal,” said the group, “a deal that gave the company a large ownership stake in Hulu.” As a condition for approval of the merger, the cable giant agreed to relinquish any right “to influence, control or participate in the governance or management of Hulu.”

“Where there’s smoke, there’s fire,” said Free Press Policy Director Matt Wood, “or at least a compelling reason to investigate. Under the terms of its acquisition of NBCUniversal, Comcast is forbidden from influencing Hulu’s operations. Today’s announcement looks an awful lot like an example of such influence.”

what is going on here is that they are killing the business in order to maintain control.

In the short run, it may make sense, since this allows them to maintain their monopoly rents on their subscribers, for a while at least.

One of thei early investors, however, bailed out on Hulu:

Hulu.com owners Walt Disney Co. (DIS), Comcast Corp. and News Corp. (NWSA) are close to buying out Providence Equity Partners Inc.’s stake at a price valuing the company at about $2 billion, said two people with knowledge of the matter.

Providence is selling its 10 percent share in Los Angeles- based Hulu for about $200 million after investing $100 million when the venture began in 2007, according to the people, who weren’t authorized to talk publicly.

“This would be the optimal outcome,” David Bank, an analyst at RBC Capital Markets in New York, said in an interview. “The real value of Hulu will be discovered on a longer time frame than what’s likely optimal for Providence.”

It ain’t the time frame, it’s that their interest is in the success of Hulu, and not of the cable companies, and they realized that the management is the cable companies’ moles.

Truth be told, except for the wonderful Alec Baldwin brain sucker ads, this does not really effect me, but it’s seriously galling.

Good Patent News Everyone

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For once, the generic drug manufacturers win one:

The US Supreme Court ruled that generic drug makers can challenge big-name pharmaceutical firms in court to stop them from broadening the scope of their patent descriptions.

The measure overturns a 2010 appeals court ruling and confirms an earlier decision by a federal judge that ordered the US subsidiary of Danish laboratory Novo Nordisk to narrow the description of its patent on repaglinide, an anti-diabetes drug sold under the name Prandin.

Caraco Pharmaceutical Laboratories, the US subsidiary of the Indian firm Sun Pharmaceutical Industries, is seeking to produce a generic version of Prandin.

However Novo Nordisk amended the wording of his patent to extend it, and block the Caraco’s request to the US Food and Drug Administration (FDA) to produce a generic version of the drug.

The FDA cannot approve the sale of a drug that breaks patent protection laws.

In a unanimous decision by the nine Supreme Court justices on Tuesday, Justice Elena Kagan wrote that “a generic company can employ the counterclaim to challenge a brand’s overbrand use code.”

Courts have gotten much more skeptical of what I call overbroad patent bullsh%$ over the years, so this is more of  a good trend.

And Now They Are Claiming that Hyperlinking is Infringement

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This is not about making money, This is about seizing control of how we discuss any form of media:

The Motion Picture Association of America is squaring off against a coalition of Internet giants and public interest groups over the key question of whether it’s possible to directly infringe copyright by embedding an image or video hosted by a third party.

A federal judge took that position last July, prompting a chorus of criticism. Two briefs—one by Google and Facebook, the other by the Electronic Frontier Foundation and Public Knowledge—attacked the decision as contrary to past precedents and potentially disruptive to the Internet economy. They asked the Seventh Circuit Court of Appeals to overturn it.

Last week, the MPAA joined the fray with a brief in support of Illinois federal judge John F. Grady’s ruling. It urged the Seventh Circuit not to draw a legal distinction between hosting content and embedding it. In the MPAA’s view, both actions should carry the risk of liability for direct copyright infringement.

The case arose from a dispute over Internet pornography. MyVidster is a video bookmarking site that allows users to save links to their favorite videos and share them with others. The site supports embedding, so bookmarked videos can be viewed on a myVidster page surrounded by myVidster ads.

This is technical, but there is primary and secondary infringement, and the burden of proof is lower, and the penalties are higher, for the former.

If you extend primary infringement to embedding, which is practically indistinguishable from hyperlinks, then expect a full assault on hyperlinks, and if they win on this, the internet becomes another corporate walled garden.

The Supreme Court Pushes Back on Patents Again

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They just struck down two patents on a drug dosage calibration method:

The U.S. Supreme Court delivered a unanimous blow to Prometheus Laboratories by saying that its methods of dosage calibration for thiopurine drugs for gastrointestinal and nongastrointestinal autoimmune diseases are ineligible for patenting. In a decision written by Justice Stephen G. Breyer, the high court overturned the decision by the Court of Appeals for the Federal Circuit last December. The Federal Circuit had upheld the two diagnostic method patents, which covered the methods designed to take into account the context of a treatment regime based on the individual patient’s metabolism.

“To transform an unpatentable law of nature into a patent­ eligible application of such a law, a patent must do more than simply state the law of nature while adding the words ‘apply it,’” the court stated. “It must limit its reach to a particular, inventive application of the law.”

Prometheus’ patents failed that test, according to the court: “We conclude that the patent claims at issue here effectively claim the underlying laws of nature themselves. The claims are consequently invalid.”

Through the ruling, Breyer answered the question he posed to attorneys for both sides during oral arguments in December: “What has to be added to a law of nature to make it a patentable process?”

Basically the “method” was to measure the metabolite levels of a drug in order to determine appropriate dosages.

Yeah, that’s something that a medical intern has learned in his first year, or in med school, for the past 50+ years, but they took out a patent.

Prometheus claimed that the human body was the machine conducted the transformation.

It’s another in a streak of brush-backs to the U.S. Circuit Court for the Federal Circuit, aka the Patent Court, which expanded the reach of patents since its creation over the past 30 years.

The patent system long ago went from a system to encourage innovation to one that strangles it.

Kind of a Working Sunday

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I’m looking up a number of patents.

I’ve been checking out some patents in a matter completely uninvolved  to my day job.  (I’m trying to see if I possess the expertise to qualify as an expert witness)

Here’s another good idea for patent reform:  How about requiring that they not be written in the most obtuse manner possible?

Sergey Aleynikov Freed

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You may recall that he was convicted under the Economic Espionage Act for downloading some high frequency trading software from Goldman Sachs, where he worked.

Apparently, the judge in the trial completely bought into the prosecutions expansion of the law, intended to prosecute people for selling military secrets to the Chinese, to this case, and the appellate court came down hard on the judge. They did not just remand this back to the lower court, they ordered the lower court to enter a judgement of acquittal.

Felix Salmon explains why whole case was such an outrage:

The secrets at defense contractors, of course, are secret for reasons of national security. The secrets at investment banks and hedge funds, by contrast, are secret purely for reasons of profit: they reckon that if they have some clever algorithm which nobody else has, then that makes it easier for them to profit from it. Which is why it was always a stretch for the government to use the EEA to prosecute Aleynikov — indeed, it is why it was always a stretch for Aleynikov to be criminally prosecuted at all. Goldman could have brought a civil case against him, but instead they got their wholly-owned subsidiary, the U.S. government, to come down on him so hard that he ended up with an eight-year sentence. Violent felons frequently get less.

The forthcoming decision from the Second Circuit is likely to be a doozy; I’m told that the judges shredded the prosecutors during the oral hearing. And certainly their decision to enter a judgment of acquittal, rather than any kind of retrial, is a strong indication that they handed down this order with extreme prejudice against prosecutorial overreach.

(emphasis mine)

This has been a lose-lose for the Vampire Squid. They looked like bullies, they brought a lot of attention to the bit of front-running that is high frequency trading, and they have now lost the case.

That being said, I don’t expect Goldman, or the prosecutors, to give up just yet.

Background here.

You Have Got To Be Kidding

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Guess what, the heavy duty Randroids out there are now going after their enemy du jour, George Bailey, president of the Bailey building and loan:

It’s been a standing joke for ages to claim that some free-market Randroid was so clueless that he or she would watch “It’s A Wonderful Life” and cheer for Mr. Potter while hissing at George Bailey. It would be the equivalent, say, of someone hoping that Scrooge would tell the Ghosts of Christmas Past, Present and Future to sod off or that Spielberg would leave E.T. to die alone in a ditch in Southern California or that Dorothy would be stranded in Oz for the rest of her life as the Wizard’s concubine.

But, of course, this, or so everyone thought, was all just cute and snarky hyperbole. No one, not even the High Priestess Ayn Rand herself, could possibly actually watch “It’s A Wonderful Life” and come away not sobbing like a child but instead thinking that George Bailey was a social parasite spouting vile commie propaganda against the heroic Mr. Potter, the job creator who knew what was really best for the people of Bedford Falls.

Yes, they are demonizing the hero, played by honest to God war hero Jimmy Stewart, of Frank Capra’s treacly bit of cinema, It’s a Wonderful Life, which is considered by many (not me) to be an American cinematic icon.*

Seriously, what the f%$# are wrong with these folks?

I’m beginning to understand what led Ayn Rand to have a doting crush on one William Edward Hickman, a monster who kidnapped and dismembered a twelve year old girl, it’s because Randian libertarianism is not so much a philosophy as it is a beard to conceal from the rest of the world that they are sociopaths.

*Personally, I’m not a big fan of the movie, and it was viewed as a resounding failure when released.  My interest was in the fact that it became popular when it passed out of copyright, and TV stations showed it repeatedly in the holiday season, creating a classic.  My interest is how a series of court rulings allowed it to be snatched out of the public domain.

Yes, These Are Members of the Polish Parliament

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And they are protesting Poland’s signing onto the Anti-Counterfeiting Trade Agreement (ACTA):

Poland on Thursday signed an international copyright agreement, sparking more demonstrations by Internet users who have protested for days over fear it will lead to online censorship.

After the signing, protesters rallied in the Polish cities of Poznan and Lublin to express their anger over the treaty. Lawmakers for the left-wing Palikot’s Movement wore masks in parliament to show their dissatisfaction, while the largest opposition party — the right-wing Law and Justice party — called for a referendum on the matter.

Controversy in Poland has been deepening over the Anti-Counterfeiting Trade Agreement, or ACTA. Though many other industrialized countries have signed it, popular outrage appears to be greater in Poland than anywhere else.

This is actually significant.

It’s been growing slowly, but the almost universal consensus about the ability of IP holders to rent seek is now showing cracks, as more and more people start to see it as a drain upon society, rather than a benefit.

We are seeing this in the media, where we are seeing increasing coverage of patent trolls like Nathan Myhrvold.  (Here’s hoping that his f%$#ing cookbook is followed by people protesting his ass)

With a little bit of luck, we may eventually see the worm turn on all of this, and see the protections on IP seen through the lens of public benefit, and not the interest of the rentiers.

Quote of the Day

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Courtesy of the The Rude Pundit:

You got that? The whore who fronts for an industry owned by multinational megacorporations like NewsCorp, Sony, and Viacom is actually attacking BoingBoing.net owners Happy Mutants LLC for using the internet for some evil agenda to steal Chipmunk movies just because they went on a one-day strike. That’s a bit like Ted Bundy accusing a student nurse of having a messy dorm room just before bludgeoning her to death.

He is, of course, describing former Senator Chris Dodd’s pimping for big media in has capacity as chief lobbyist for the MPAA.

And as SOPA/PIPA Goes Down, the Supreme Court Decides to F%$# the Concept of Public Domain

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The Supreme Court just ruled that the public domain can be taken away whenever Congress wants to:

We’ve been talking about the Golan case, and its possible impact on culture, for years. If you’re unfamiliar with it, it’s the third in a line of cases, starting with the Eldred case, to challenge aspects of copyright law as violating the First Amendment. The key point in the case was questioning whether or not the US could take works out of the public domain and put them under copyright. The US had argued it needed to do this under a trade agreement to make other countries respect our copyrights. Of course, for those who were making use of those public domain works, it sure seemed like a way to unfairly lock up works that belonged to the public. It was difficult to see how retroactively taking works out of the public domain could fit into the traditional contours of copyright law… but today, on the day of the big SOPA/PIPA protests… that’s exactly what happened (pdf).

The ruling is ridiculously depressing. The Justices basically just keep repeating the mantra they first set forth in Eldred, that as long as Congress says it’s okay — and that the “fair use” and the “idea/expression” dichotomy remain — all is just dandy. They also claim that since the very first copyright law took works from the public domain and gave them copyright protection, clearly there’s nothing wrong with removing works from the public domain. This decision reinforces why the Eldred decision was a complete disaster, and just keeps getting worse. The Eldred ruling basically ignored the fact that copyright had changed entirely in a way that went against the First Amendment… by retroactively granting copyright extension. Now that ruling is being used to take works out of the public domain as well.

First, as with Eldred (and the second case in the trilogy, the Kahle case), I believe that the Court is greatly mistaken in its analysis of copyright law. First it claims that there’s little fight between copyright and the First Amendment because the two things were put in place at about the same time. That’s a specious argument for a variety of reasons. First, the original copyright law was significantly limited in a way that it was unlikely to really come into conflict with the First Amendment. It was limited to just a few specific areas, and for a very short period of time. It’s only now that (1) copyright law has been totally flipped to make just about everything you create covered by copyright, (2) the law has been massively expanded in time and (3) changes in technology make us all create tons of “copyrighted” material all the time — things have changed an entirely. It’s hard to see how the Court can reasonably argue that the traditional contours of copyright law have not changed… but that’s exactly what it does. Stunningly, the majority decision here, written by Justice Ginsburg, seems to suggest that there’s no First Amendment issue here, because if people want to make use of the works that were previously, but are no longer, in the public domain, they can just buy those rights:

This ruling sucks wet farts from dead pigeons.

IP increasingly resembles the Enclosure Acts in England, with a similar outcome. The ordinary people get f%$#ed, and the nobility makes out like raped apes.

Needless to say, this does not serve, “To promote the Progress of Science and useful Arts,” as the constitution states.

It’s Been the SOPA/PIPA Protest Day Today

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Click for full size


Wikipedia Went Dark

Well, it looks like the rent seekers who normally win this stuff (the “Mickey Mouse” Sonny Bono Copyright Act anyone?) are getting at least a temporary brush-back over their attempt to turn the internet into a gated community:

When the powerful world of Old Media mobilized to win passage of an online antipiracy bill, it marshaled the reliable giants of K Street — the United States Chamber of Commerce, the Recording Industry Association of America, and of course, the motion picture lobby, with its new chairman, former Senator Christopher J. Dodd, the Connecticut Democrat and an insider’s insider.

Yet on Wednesday this formidable Old Guard was forced to make way for the new as Web powerhouses backed by Internet activists rallied opposition to the legislation through Internet blackouts and cascading criticism, sending an unmistakable message to lawmakers grappling with new media issues: Don’t mess with the Internet.

As a result, the legislative battle over two once-obscure bills to combat the looting of American movies, music, books and writing on the World Wide Web may prove to be a turning point for the way business is done in Washington. It represented a moment when the new economy rose up against the old.

“I think it is an important moment in the Capitol,” said Representative Zoe Lofgren, Democrat of California and an important opponent of the antipiracy legislation. “Too often, legislation is about competing business interests. This is way beyond that. This is individual citizens rising up.”

Legislation that just weeks ago had overwhelming bipartisan support and had provoked little scrutiny generated a grass-roots coalition on the left and the right. Wikipedia made its English-language content unavailable, replaced with a warning: “Right now, the U.S. Congress is considering legislation that could fatally damage the free and open Internet.” Visitors to Reddit found the site offline in protest. Google’s home page was scarred by a menacing black swatch that blotted out the search engine’s label.

Phone calls and e-mails poured in to Congressional offices against the Stop Online Piracy Act in the House and the Protect I.P. Act in the Senate. One by one, prominent backers of the bills dropped off.

It should be noted that the Republicans are walking away from this faster than the Democrats.

Even Orrin Hatch, the MPAA and RIAA’s bitch,* has withdrawn his support of the bill.

BTW, this debacle is largely the fault of the entertainment industry, because until now they have refused to meet with the tech companies to work out differences, though they are begging for that now.

Here’s a suggestion to the tech companies:  keep your boot on the MPAA’s.

You’ll be doing them a favor.  You might remember then MPAA chair Jack Valenti claiming that the VCR would destroy the studios, when the video rental revenues actually saved their bacon.

Here’s a thought to the unproductive leeches who are entertainment executives, whose business, after all is to rip off the artists who actually produce this stuff:  Do less cocaine, fire your worthless brothers-in-law, and invest in treating the actual creative people, and in producing better content.

*For which he has been richly paid through record contracts from the labels.

You Know It’s an Election Year, Because ………

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The Obama administration has come out against the most draconian measures in the rent seeking anti-piracy bills in the House and Senate:

The Obama administration won’t back legislation to combat online piracy if it encourages censorship, undermines cybersecurity or disrupts the structure of the Internet, three White House technology officials said.

Their statement, posted yesterday on the White House website, was a response to online petitions on legislative proposals to combat online piracy. The movie and music industries support such measures as a means of cracking down on theft.

“While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk or undermines the dynamic, innovative global Internet,” Aneesh Chopra, Victoria Espinel and Howard Schmidt wrote in a blog post.

The statement marks the administration’s most significant foray into a fight between content creators and Internet companies that has been playing out in Congress. The Senate is scheduled to hold a procedural vote Jan. 24 on starting debate on an anti-piracy bill.

The first thing to note is that this is a very tepid condemnation.

They didn’t make a Friday night release of this blog post, it was around noon on a Saturday when it was competing with the NFL playoffs, and Obama himself has not made a comment here.

That being said, I think that this is the first time that the Obama administration has come out against rent seekers as versus the general public.

I think that the Obama administration has made a tactical decision that they will get plenty of money for the campaign, and so they it isn’t necessary at this time to sh%$ on a motivated and tech savvy part of the electorate.

If Only They Could both Lose………

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It’s a battle between an insurance company and a pharmaceutical company over a drug that probably doesn’t work but has a lot of fans:

Blue Shield of California will no longer pay for the use of the drug Avastin to treat breast cancer, a sign that support for the widely debated and expensive treatment may be eroding among health plans.

Blue Shield, with 3.2 million members, is apparently the first large insurance company to end payments since a federal advisory committee unanimously recommended in June that the Food and Drug Administration rescind Avastin’s approval as a treatment for breast cancer, saying the drug did not really help patients.

The F.D.A. commissioner, Dr. Margaret A. Hamburg, has not made a final decision, so Avastin retains its approval for now.

Because it is an emotional and politically contentious issue, with some women saying the drug is keeping them alive, many insurers have said they will wait until a final decision from the F.D.A. before re-evaluating their coverage policies. And Medicare has indicated it will continue paying for the drug even if the F.D.A. revokes the approval.

Until people realize that there is not a problem with the cost of prescription drugs because the real problem is the price of drugs, and so private solutions to innovation, with the associated exclusivity provisions, are the problem, not the solution.

Hoocoodanode? Monsanto Edition

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It turns out that what Montsanto thought was a win-win, it use of genes to create Roundup resistant crops, allowing it to make money on both the crops, and on the increased sales of its popular herbicide has had a not-unexpected side effect.

It seems that with Roundup Ready® ready crops, farmers soak their fields in the herbicide, and so now we are seeing an explosion of herbicide resistant weeds:“Superweeds” are plaguing high-tech Monsanto crops in southern US states, driving farmers to use more herbicides, return to conventional crops or even abandon their farms.

How has this happened? Farmers over-relied on Monsanto’s revolutionary and controversial combination of a single “round up” herbicide and a high-tech seed with a built-in resistance to glyphosate, scientists say.

Today, 100,000 acres in Georgia are severely infested with pigweed and 29 counties have now confirmed resistance to glyphosate, according to weed specialist Stanley Culpepper from the University of Georgia.

“Farmers are taking this threat very seriously. It took us two years to make them understand how serious it was. But once they understood, they started taking a very aggressive approach to the weed,” Culpepper told FRANCE 24.

“Just to illustrate how aggressive we are, last year we hand-weeded 45% of our severely infested fields,” said Culpepper, adding that the fight involved “spending a lot of money.”

In 2007, 10,000 acres of land were abandoned in Macon country, the epicentre of the superweed explosion, North Carolina State University’s Alan York told local media.

Imagine that.  It’s so bad, that farmers are abandoning land.

The problem here is that the rulings changing the patent laws over the past few decades, which allow the patenting of genes and species, have made the seed business so lucrative that companies like Monsanto are inclined to skip appropriate testing in the rush to market.

The solution is, in addition to stricter regulation, is to remove the IP protections to genes and species, which will remove much of the incentive to cheat.

Someone Puts a Cost to the Activities of Patent Trolls

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$500-billion over the past decade,* and that does not count reductions in innovation, as the trolls, as:

  • The patents are frequently of very low quality.
  • The proceeds from patent trolling don’t go to inventors in the first place.

The problem is that a myth of  “Intellectual Property” (When I use the term IP, I mean “Intellectual Product) has been created out of a limited exclusive license created, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries“.

In other words, this is not property law, but rather it is public interest law based on the idea that temporary and limited restrictions to the free flow of ideas and expression only to the degree that these restrictions benefit the public as a whole.

Once you start calling it “property” you encourage all sorts of arbitrary applications, and Randroid thinking, and as opposed to encouraging innovation, you hamstring it.

*My unscientific gut says that this number is probably low by at least a factor of 2, if not a factor of 10.

One Bright Side to the New Patent Law

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Tax avoidance strategies are no longer patentable:

Did you ever think the clever tax-saving strategy your financial advisor is offering up could be patented?

For the past six years that question has been vigorously debated in the courts, at Congressional hearings and at gatherings of estate planners and other tax wonks. Congress finally put it to rest with a new law that President Obama signed on Sept. 16.

Under a provision in the far-reaching patent reform bill, it’s no longer possible to get a patent on a strategy for reducing, avoiding or postponing taxes. (See Section 14 of the law, which downloads here as a pdf.) By the time the bill, known as the America Invents Act, was signed into law, the U.S. Patent and Trademark Office had issued more than 161 tax patents, and another 167 tax patent applications were pending.

My preferred bill would have made it more difficult for patent trolls to get injunctions, and banned all business method patents, as well as patents on genes and software, but this is an improvement.

Crap

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A federal appeals court has overturned a lower court ruling and ruled that patents of genes are legal:

A federal appeals court affirmed the right of Myriad Genetics to patent two genes linked to breast cancer, overturning a lower court ruling that threatened a key element of the biotech business.

The U.S. Court of Appeals for the Federal Circuit in a ruling on Friday backed Myriad’s right to patent two “isolated” human genes — BRCA1 and BRCA2 — that account for most inherited forms of breast and ovarian cancers.

………

The appeals court said the genes isolated by the company can be patented because Myriad is testing for distinctive chemical forms of the genes, and not as they appear naturally in the body.

One member of the three-judge appellate panel dissented, saying that despite Myriad’s process of isolating a human gene it still could not be patented.

………

The appeals court also said that Myriad’s method for screening potential therapies was patentable.

The judges did, however, agree with the district court that Myriad’s method of analyzing DNA sequences did not involve sufficient transformation, and thus could not be patented

I’m not surprised. This is the Court of Appeals for the Federal Circuit, a body that was created specifically to rule on patents, and they, under the “when all you have is a hammer, everything looks like a nail” theory, are insanely pro patent.

How insanely pro patent? They are assuming patently false facts to justify their ruling:

Bruce Wexler, a patent expert at the law firm Paul Hastings, said the ruling means the appeals court has recognized that DNA takes on a different molecular structure when it is isolated and removed from the body.

“That is a very significant result that is very important to the biotech industry,” Wexler said.

This is scientific bullsh%$. DNA is DNA is DNA is DNA, whether in vivo or in vitro.

Here’s hoping that the Supreme Court or the full appeals court (unlikely, see my hammer nail argument), and it gets slapped down.

SCOTUS has issued a number of “what are you smoking?” rebukes of the Court of Appeals for the Federal Circuit regarding patents over the past few years, so there is some hope, but such a ruling would be highly disruptive to the industry, and the Roberts court has been very pro-industry, so I think that it is a small one.

Background here.

If You Are Not Up to Speed on Patent Trolls………

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Planet Money and This American Life joined forces to run Nathan Myhrvold’s Intellectual Ventures patent extortion ring to the ground, and it is well worth the read. (There is a link to the This American Life broadcast there)

It shows how our patent system, where I sh%$ you not, someone has patented toast, rather than being a spur to innovation, or, as they conclude:

The big companies — Google, Apple, Microsoft — will probably survive. The likely casualties are the companies out there now that no one’s ever heard of that could one day take their place.

One of the more interesting bits is how they show that Myhrvold’s claim that they are a purely defensive company which does not sue people is a bald faced lie.  They use a network of shell corporations to extract their tribute.

This system needs to be fixed, but the victims are largely invisible and poor, and the rentiers have lots of money, because they get paid for doing nothing, which means that it is tough to get Congress interested in this.

Senators Want To Put People In Jail For Embedding YouTube Videos

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No, seriously, Senators Amy Klobuchar, John Cornyn and Christopher Coons are proposing to make posting the wrong sort of Youtube videos a felony:

Okay, this is just getting ridiculous. A few weeks back, we noted that Senators Amy Klobuchar, John Cornyn and Christopher Coons had proposed a new bill that was designed to make “streaming” infringing material a felony. At the time, the actual text of the bill wasn’t available, but we assumed, naturally, that it would just extend “public performance” rights to section 506a of the Copyright Act.

Supporters of this bill claim that all it’s really doing is harmonizing US copyright law’s civil and criminal sections. After all, the rights afforded under copyright law in civil cases cover a list of rights: reproduce, distribute, prepare derivative works or perform the work. The rules for criminal infringement only cover reproducing and distributing — but not performing. So, supporters claim, all this does is “harmonize” copyright law and bring the criminal side into line with the civil side by adding “performance rights” to the list of things.

If only it were that simple. But, of course, it’s not. First of all, despite claims to the contrary, there’s a damn good reason why Congress did not include performance rights as a criminal/felony issue: because who would have thought that it would be a criminal act to perform a work without permission? It could be infringing, but that can be covered by a fine. When we suddenly criminalize a performance, that raises all sorts of questionable issues.

The problem here is that people do not understand what IP is.

People seem to think that it’s property.  It’s no more property than a liquor license is.

It’s a limited time limited exclusive license created to, “To promote the Progress of Science and useful Arts.”

It’s not about creating progressively punitive and extortive provisions, largely because the holders of these licenses have lots of money to wave around, and want ways to extort more money.

Finally, Some Legislative Pushback on Patent Trolls

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You know that it gets weird when the banksters are on the side of the good guys:

For years and much to their frustration, big banks have paid hundreds of millions of dollars to a tiny Texas company to use a patented system for processing digital copies of checks, making Claudio Ballard, the inventor of the system, a wealthy man and the bank industry’s biggest patent foe.

After years of fighting Mr. Ballard at the federal Patent Office, in court and across a negotiating table, the banks went to see one of their best friends in Congress, Senator Charles E. Schumer of New York, who inserted into a patent overhaul bill a provision that appears largely aimed at helping banks rid themselves of the Ballard problem. The Senate passed the bill easily in March.

The proposal would allow banks to get a federal re-examination of certain patents that they have been accused of infringing, specifically limited to “a financial product or service.” The language is now included in a bill that may come to a vote in the House of Representatives as early as Wednesday. While at least two House members have moved to strip the provision from the bill, bank lobbyists have worked hard to defeat previous attempts to remove it.

Mr. Schumer and the Financial Services Roundtable, a business group that pushed the measure, say the provision is not focused on any one company but more broadly at “meritless litigation over patents of dubious quality,” as Steve Bartlett, the president of the Roundtable, said at a House hearing.

The depressing fact is that this is just a lobbying power play, rather than a realization that IP in all forms is about benefiting society, and  not about determining who gets an undeserved payoff that they can use to make campaign donations.

Business patents, gene patents, and software patents, do not serve to encourage innovation, they simply create government sanctioned monopolies, and the profits generated has now seized the political process.