Category: Patent

Good News Everyone!

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I invented a device that makes you read this in your head using my voice!

In response to yet another attempted shakedown by a patent troll, the courts,  in response to recent Supreme Court rulings, have started to issue significant sanctions:

This summer, the Supreme Court made it easier for defendants to collect fees when they win patent cases. The decision is starting to have an effect—the nation’s largest patent troll just got slapped with an order to pay $1.4 million in attorneys’ fees to NetApp, which it sued in 2010.

The case brought by Summit Data Systems, a branch of Acacia Research Corp., hinged on an accusation that NetApp infringed when its server-based software interacted with an end user on a Microsoft operating system. The two patents-in-suit, 7,392,291 and 7,428,581, relate to “block-level storage access over a computer network.”

But just two months before Summit filed its lawsuit, it sold licenses for those patents to 43 companies that were member companies of defensive patent aggregator RPX—including Microsoft.

“Nonetheless, Summit brought suit against NetApp barely two months after executing the Licensing Agreement,” wrote US District Judge Gregory Sleet in his order (PDF), which was unsealed on Tuesday. “It then took Summit 18 months to disclose the existence of the Licensing Agreement to NetApp.”

Summit’s expert said that Microsoft users infringe the patents, but he couldn’t determine whether Linux or UNIX systems infringed because he “didn’t have time.”

Sleet continued:

The facts of this case demonstrate that Summit pursued an action against NetApp without any basis for infringement, delayed disclosing the existence of the Licensing Agreement for eighteen months, extracted settlements from co-defendants worth a fraction of what it would actually cost them to defend the lawsuit, and then voluntarily dismissed its claims with prejudice prior to the court issuing a ruling on the merits… The claims were frivolous—Microsoft’s initiator software [was] licensed, so no system employing it could infringe the asserted patents. Summit’s motivation was to extract quick settlements that were dwarfed by the costs to litigate. Summit was objectively unreasonable in bringing a lawsuit against NetApp mere months after executing the Licensing Agreement that effectively eliminated its theory of infringement. Finally, the court is convinced that an award of attorneys’ fees in this case is necessary to deter this sort of reckless and wasteful litigation in the future.

………

Acacia is a patent-holding company that’s publicly traded on NASDAQ, and it’s sometimes considered the largest “patent troll,” since its various subsidiaries have filed more patent lawsuits than any other single company. The NetApp fee order is Acacia’s second major setback in recent months. In July, an Acacia unit holding an old Polaroid digital imaging patent lost a big case in which it was seeking royalty payments from 31 companies.

Here is the pertinent bit about the recent Supreme Court decision:

The Supreme Court overruled the lower courts. In their unanimous opinion for Octane Fitness v. Icon Health & Fitness, the justices found the Federal Circuit had taken a wrong turn in 2005 when it rejected the “holistic, equitable” approach toward attorneys’ fees and took up a “more rigid and mechanical formulation.” In order to get fees in a case, a party had to show that a litigation is both “objectively baseless” and “brought in subjective bad faith.”

That’s almost an impossible standard to meet, Octane’s lawyer Rudy Telscher told Ars in an interview before the February oral arguments. “You’ve got to show that the plaintiff brought a ‘zero merit’ case, and they knew that’s what they were doing.”

Instead, the Supremes said today that fees should be awarded in an “exceptional” case. That’s what the statute calls for, and the word “exceptional” should be given its ordinary meaning. “An ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position… or the unreasonable manner in which the case was litigated,” wrote Sotomayor.

The “Federal Circuit Court” above is formally known as the United States Court of Appeals for the Federal Circuit, but is probably better known as the “Patent Court,” which has had a ridiculously broad view of IP rights, they have literally allowed the patenting of a rainy day.

Thankfully, SCOTUS has begun routinely overturning the more extreme rulings of the patent court.

Finally!

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The FTC is suing brand name drug makers over their payments to generic drug manufacturers to delay their production:

For the first time since the U.S. Supreme Court ruled last year that so-called pay-to-delay deals may be subject to greater antitrust scrutiny, the U.S. Federal Trade Commission has filed a lawsuit charging drug makers with violating anti-trust laws and hurting consumers in their collective pocketbooks.

Specifically, the agency charged several drug makers – including AbbVie ; Abbott Laboratories , which spun off AbbVie, and Teva Pharmaceuticals – for striking deals that delayed the availability of the widely promoted AndroGel testosterone replacement therapy, a $1 billion seller.

“We believe the defendants’ anticompetitive conduct has forced consumers to overpay hundreds of millions of dollars for this medication,” FTC chairwoman Edith Ramirez told the media in a briefing, in which she noted the agency hopes to force the drug makers to disgorge “their ill-gotten gains.”

In these deals, a brand-name drug maker settles with a generic rival in exchange for ending patent litigation and launching a copycat medicine at a future date. The pharmaceutical industry contends the deals are not only legal, but actually allow drugs to reach consumers faster than if litigation continued.

Also known as reverse payment settlements, the deals emerged as an unintended consequence of the Hatch-Waxman Act that was designed to accelerate access to lower-cost generics. An FTC report in 2012 found there 40 potential pay-to-deals, up from 28 the year before.

The Supreme Court ruling, which reviewed a lawsuit brought by the FTC against Actavis, was a boost to the agency, because it supported the contention that pay-to-delay deals may violate antitrust laws and, effectively, allowed the FTC to pursue lawsuits against drug makers.

………

In its lawsuit, the FTC charges that AbbVie, Abbott and Bevins Healthcare filed “sham” patent litigation against potential generic rivals, including Teva, and then entered into an allegedly illegal patent settlement in order to thwart competition.

I’ve said it before (like the post just before this one):  Our current model of capitalism is a harmful and corrupt system that resembles nothing more than the book Lord of the Flies.

When the Supreme Court Gets it Right ………

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In this case, it is patents, where the Supreme Court ruling in  Alice v. CLS Bank has created a new legal landscape, which has seen regular reversals of “do it on a computer” patents:

The Supreme Court’s June ruling on the patentability of software — its first in 33 years — raised as many questions as it answered. One specific software patent went down in flames in the case of Alice v. CLS Bank, but the abstract reasoning of the decision didn’t provide much clarity on which other patents might be in danger.

Now a series of decisions from lower courts is starting to bring the ruling’s practical consequences into focus. And the results have been ugly for fans of software patents. By my count there have been 11 court rulings on the patentability of software since the Supreme Court’s decision — including six that were decided this month. Every single one of them has led to the patent being invalidated. 

This doesn’t necessarily mean that all software patents are in danger — these are mostly patents that are particularly vulnerable to challenge under the new Alice precedent. But it does mean that the pendulum of patent law is now clearly swinging in an anti-patent direction. Every time a patent gets invalidated, it strengthens the bargaining position of every defendant facing a lawsuit from a patent troll.

Until the supreme court slapped down the patent court, it had been routing for people to get patents for existing processes by adding, “We are doing it through the internet,” as the magic words.

Not any more.

A typical patent being overturned was, “A patent on the concept of using a computer to help users plan meals while achieving dieting goals.”

Because using a notebook to diet is so completely unlike using a computer, I guess.

In any case, it’s nice to see the patent trolls on the wrong side of this trend.

I Think that the Worm is Turning on IP

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Ten years ago, 90% of the population did not know what a patent troll was, and now popular effort sinks the nomination of a patent troll supporter to run the USPTO:

The Obama Administration has changed its mind over a plan to name pharmaceutical executive Phil Johnson as head of the U.S. Patent and Trademark Office, according to multiple sources. The reversal is a victory for the technology industry and other proponents of patent reform.

The plan to appoint Johnson surfaced in late June, and was met with outrage on social media, where critics claimed the choice reflected hypocrisy on the part of President Obama, who had called for fixes to the patent system in his January State of the Union address.

Johnson, a longtime attorney for Johnson & Johnson, was a controversial nominee in part because he helped lead opposition to a bipartisan bill, which died in May, that would have made it easier for companies to challenge bad patents and to seek legal fees from so-called “patent trolls.” He has also publicly scorned previous attempts to reform the patent system.

News of the White House’s decision to backtrack on the appointment came via a person close to the Administration, and was confirmed by several industry sources. The final decision to pull the plug may have occurred after Senator Chuck Schumer (D-NY) vocally declared his opposition to Johnson. Schumer, who was one of the authors of the failed reform bill, has regularly blasted the harm the current patent system is inflicting on start-ups and young companies.

It would have literally inconceivable that someone like Johnson would have been shot down by a bunch of people objecting to the legal fine points of the purpose of IP.

While IP protections have their place, are a form of rent seeking, and for a just and prosperous society, it behooves us to minimize the level of rent seeking to the absolute minimum level to encourage artistic and technological production (Article I, Section 8, Clause 8 of the United States Constitution).

This is baby steps, but if it is the start of a trend, it constitute a seismic shift from the (completely ahistorical, United States industry was built on IP appropriation) view that ever more expansive protections to IP are essential to economic well being.

Now if only we can convince the US Trade Rep to chill out.

I Guess that Steve Jobs is Really Dead

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Apple and Google have agreed to drop the patent suits that they have filed against each other:

Two giants of the mobile phone industry, Apple and Google, have agreed to drop all current patent infringement lawsuits between them, they said Friday.

“Apple and Google have also agreed to work together in some areas of patent reform,” the companies said in a joint statement. They have not agreed to cross-license each other’s patents, however.

Apple filed a lawsuit with the U.S. International Trade Commission in 2010 against Motorola Mobility, which was subsequently acquired by Google. Google has since agreed to sell the smartphone business to Lenovo, but the deal has not yet closed.

Many of the lawsuits Apple has filed against other smartphone makers, including Samsung, involve Google’s Android operating system. This deal announced Friday does not affect the Apple-Samsung lawsuit, however.

It’s a limited state step, but it is one that Steve Jobs would have taken.

Reasonable and measured was simply not a part of his DNA.

Muck Fyhrvold

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Nathan Myhrvold founded Intellectual Ventures, and proceeded both directly, and through a shadowy shell companies, has proceeded to use dodgy patents, and threat of expensive litigation to extort money from businesses.

Well, we have just had a on the first case that IV put its own name on, and Myhrvold’s baby went down in flames:

Intellectual Ventures (IV) is the world’s biggest patent-licensing company and boasts of having collected tens of thousands of patents since it was founded in 2000. It’s raised about $6 billion from investors over the years, and to recoup that money, it started filing lawsuits over patents a few years ago. In 2013, it launched a new salvo, filing 13 lawsuits against major US banks, including Bank of America, JP Morgan Chase, and Capital One.

The Capital One case ended last Wednesday, when a Virginia federal judge threw out the two IV patents that remained in the case. It’s the first IV patent case seen through to a judgment, and it ended in a total loss for the patent-holding giant: both patents were invalidated, one on multiple grounds. (An IV case against Motorola went to a jury, but it ended in a mistrial, and no new trial has been scheduled.)

The case was just weeks away from a jury trial, but US District Judge Anthony Trenga didn’t let it get that far. In an opinion published Wednesday, Trenga found that IV’s patents were simply abstract ideas: “nothing more than the mere manipulation or reorganization of data,” he wrote. “At most, the patents describe a more efficient system or method for performing tasks than could be done without a computer, i.e. monitoring expenditures according to preset limits (the ‘137 Patent) or determining what would appeal to a particular user from a particular website (the ‘382 Patent.)”

Unfortunately, I can think of no way to make Myhrvold’s business model, and those of other patent trolls illegal (as in go to jail), but perhaps we can see some meaningful changes to the law to make this behavior legally untenable.

I hope that Monsanto’s in the crosshairs as well.  In many ways, they are worse, because, our lives do not depend on the CWV code on a credit card, but they do depend on food.

H/t Crooks and Liars.

No Virginia, Trade Deals Do Not Require Draconian IP Restrictions

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Case in point, Canada and South Korea, who signed a free trade agreement without an all encompassing over-broad IP regime:

Canada and South Korea announced agreement on a comprehensive trade agreement earlier today. The focus is understandably on tariff issues, but the agreement also contains a full chapter on intellectual property (note that the governments have only released summaries of the agreement, not the full text, which is still being drafted). The IP chapter is significant for what it does not include. Unlike many other trade deals – particularly those involving the U.S., European Union, and Australia – the Canada-South Korea deal is content to leave domestic intellectual property rules largely untouched. The approach is to reaffirm the importance of intellectual property and ensure that both countries meet their international obligations, but not to use trade agreements as a backdoor mechanism to increase IP protections.
Yesterday I noted that Canada might be asked to increase the term of copyright protection given that South Korea had agreed to longer copyright terms in its recent agreements with the European Union, Australia, and the U.S. In fact, the U.S. agreement contains extensive additional side letters on Internet provider liability, enforcement, and online piracy.  The Canada – South Korea deal rejects that approach with copyright, trademark, patent, and enforcement rules that are all consistent with current Canadian law (plus the coming border measures provisions in Bill C-8). 
On copyright, the summary states the agreement:

  • reflects Canada’s regime as updated by the 2012 Copyright Modernization Act, which brought Canada into compliance with the World Intellectual Property Organization’s two Internet treaties;


  • reiterates existing aspects of Canada’s regime, including the protection of technological protection measures (technology designed to protect copyrighted material), protection of rights management information, and special measures against copyright infringers on the Internet (no change to Canada’s notice and notice regime, which defines the responsibility of Internet service providers in respect of copyrighted material on their networks).

The specific reference to notice-and-notice is important since it confirms no takedown requirements nor three-strikes rules. The specific measures against copyright infringers may be interpreted as Canada’s enabler provision that targets websites that facilitate infringement. Moreover, the references to reflecting Canada’s regime indicates that there is no copyright term extension or other substantive changes.

No copyright erxtensions.  No requirement that the other countries accept evergreening of drugs.

IP sanity.  What a concept.

H/t Slashdot.

The Supreme Court is to Take Up Software Patents

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I messed this in December, when the Supreme Court agreed to rule on the validity of software patents:

Renewing its recent fascination with the kinds of inventions that can be patented, the Supreme Court on Friday agreed to clarify when an analytical method implemented by a computer or by a link on the Internet is eligible for monopoly protection. This was the only new case granted. The Court will be reviewing a widely splintered decision by the U.S. Court of Appeals for the Federal Circuit, in the case of Alice Corporation Pty. Ltd. v. CLS Bank International (docket 13-298). The en banc Federal Circuit found the method at issue ineligible for a patent, but a majority could not agree on a standard for making such decisions.

 The case will provide a new test of the Patent Act’s most basic provision — Section 101, which broadly outlines what kinds of inventions are patentable. One of the long-standing exceptions to the types of inventions mentioned in that section is that an abstract idea can never be patented. That issue arises frequently these days, especially with rapidly developing technology in computer software. The Justices have dealt with that issue several times in recent years.

 Alice International, an Australian company that is half-owned by the National Australia Bank Ltd., obtained patent protection on a method invented by its founder, Ian Shepherd, for exchanging financial instruments, with the aim of assuring that, when two parties have agreed to an exchange of currency or other financial goods, they actually deliver on the deal. Because such agreements are often delayed at least a few days in implementation, there is a risk that one side won’t live up to the agreement. The invented program works out a settlement arrangement to determine which side is obliged to deliver. It generates instructions to the institutions involved to carry out their agreement.

Hopefully, this means that the Supreme Court is willing to overrule the U.S. Court of Appeals for the Federal Circuit, aka “The Patent Court”, which has ignored Supreme Court precedent for years:

This spring, the Supreme Court will weigh in on the patentability of software for the first time in a generation. In the 1970s, the high court placed strict rules on software-related patents. But since then, a lower court has effectively overruled the Supreme Court’s precedents, allowing hundreds of thousands of legally dubious software patents to be approved.

 The arguments in the software patent debate have barely changed since the 1970s, but the players in the debate have changed radically. In 1972, IBM was a leading software patent opponent. Today, Big Blue has become one of the concept’s biggest supporters. In 1991, Bill Gates warned that patents could bring the software industry to a “standstill.” Today, Microsoft is fighting to protect the tens of thousands of software patents in its portfolio.

 ………

 During the 1970s, patent law was shaped by a Supreme Court that was skeptical of patents on software. Even its 1981 decision [which allowed for a computer controlled method of curing rubber involving a computer to constantly monitor temperature] emphasized that there were limits on software-related patents. In 1982, Congress made a seemingly innocuous change to the structure of the court system that had a profound impact on the legal status of software patents.

 Most areas of the law are handled by generalist judges organized into a dozen geographically based appellate courts. But Congress, concerned that patent law had become too complex for generalist judges, created a new court called the Federal Circuit Appeals Court. The Federal Circuit was given jurisdiction over all patent appeals. And perhaps because its judges spend so much time rubbing elbows with patent attorneys, the new court would prove to have a strong pro-patent bias.

 An important turning point came in a 1994 ruling involving a computer graphics technique called anti-aliasing. ………

Anti-aliasing was a technique which had been known for decades, but the patent court ignored precedent, and allowed the patent, and opened up the floodgates, which later extended to business models and financial constructs.

I think that it is likely that SCOTUS will issue significant restrictions, because, ever since the Blackberry case, pretty the only time that they take up a case like this, it is to slap down the maniacs in the Patent Court.

They need to come down on this bullsh%$ hard, because the jokers in the U.S. Court of Appeals for the Federal Circuit are arrogant clueless extremists.

Thank You Harry Reid

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The Majority Leader of the Senate has come out against fast track authority for trade deals:

President Barack Obama’s push for authority to fast-track trade deals has hit a big setback in the form of opposition from his top fellow Democrat in Congress, but it is far from dead.

Senate Majority Leader Harry Reid’s warning to policymakers on Wednesday “just to not push this right now” reflects concern about the domestic political agenda ahead of November’s congressional elections, when free trade could be a damaging issue for many Democrats.

The unusually blunt public opposition came less than 24 hours after Obama noted the need for fast-track power in his State of the Union address, albeit less forcefully than business lobbyists and pro-trade Republicans would have liked.

The White House called Reid’s office shortly after his comments to voice displeasure, a top Democratic party aide said.

“They were really upset,” the aide said. But the aide said the White House did not try to get Reid to shift his position.

These guys were really upset because they, like the staffers who negotiated NAFTA for Clinton and Bush I, made some serious bank as lobbyists and consultants.

I really hope that it’s not, as Yves Smith’s sources say,  “Another gambit is more likely: to make some cosmetic changes and try to get the bill passed during the lame duck session, on the assumption that some Democrats (particularly those who are leaving office) will use the cover and change positions.”

The TPP, and it’s European equivalent, the TTIP, are egregiously bad deals, not just for the United States, but for the whole world, because they are predicated on the idea that democracy and transparency must be almost completely eschewed in the interest of unregulated global investment flows and IP based looting through draconian copyright and patent provisions.

These are abysmally bad deals for everyone but banksters, big pharma, and the cocaine addicted brothers in law of senior studio and record label executives.

Pushback on Drug Pricing

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The AIDS Healthcare Foundation is lobbying to keep the $1000.00 a pill Sovaldi out of Medicaid formularies.

I wholeheartedly agree enough is enough:

In a series of letters to be sent to state Medicaid directors starting today, AIDS Healthcare Foundation (AHF) President Michael Weinstein will ask the state directors to block Gilead Sciences’ new $1,000-per-pill Hepatitis C drug Sovaldi (sofosbuvir) from inclusion on their respective state Medicaid and other drug formularies. The drug was approved by the F.D.A. on December 6, 2013 and Gilead immediately announced that it would price the drug at $84,000 for a twelve-week course of treatment—or $1,000 per tablet—making it one of the most expensive drugs ever marketed. Suggested treatment guidelines also require that Sovaldi be used with another drug, ribavirin (a nucleoside inhibitor), further adding to the cost of the prohibitively expensive course of treatment.

 “When is enough, enough? At $1,000-per-pill, Sovaldi is priced 1,100% more than Gilead’s most expensive AIDS drug, Stribild, its four-in-one AIDS drug combination, which was priced at $80 per pill a year ago when it came to market,” said Michael Weinstein , President of AIDS Healthcare Foundation. “At that time, Stribild’s price was 35% more than Atripla, the company’s best selling combination HIV/AIDS treatment, and made Stribild the highest priced first-line combination AIDS therapy. Now, Gilead has set a new benchmark for unbridled greed with its outrageous price for Sovaldi—a price that some pharmacy industry sources suggest represents a retail markup of 279,000% over the cost of actually producing the drug.”

 In his letter to state Medicaid directors, Weinstein wrote, “Gilead is charging a higher price for this drug even though the cost to produce it is small. According to industry reports, Gilead produces Sovaldi for approximately $1.00 per gram (with only 10 to 30 grams needed to successfully treat patients with Hepatitis C).1 This represents a retail markup of over 279,000%.

Enough is f%$#ing enough.

This sh%$ needs to stop.

Because It is too Expensive, and the Side Effects are too Extreme

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Over at “Even the Liberal” New Republic, Eric Sasson finds a new drug that reduces the chance of HIV transmission by nearly 99%.

He is perplexed ans surprised that there has been little in the way of publicity or action regarding the now FDA approved drug, Truvada.

The answer to this question is simple. In addition to nasty , potentially lethal blood chemistry changes, osteoporosis, liver problems, hepatitis B infections getting worse, Neausea, vomiting, diarrhea, headache, dizziness, joint pain, trouble sleeping, and back pain, this drug has an extremely high price, to the tune of over $1200 a month.

This is yet another example of how an over broad IP regime.

The retail price, set by the manufacturer by virtue of their monopoly rights under patent, is preventing it from having a meaningful impact on the AIDS epidemic

The solution here is to make patents, particularly those for drugs, less expansive (also, end evergreening), along with an aggressive regime of compulsory licensing.

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.

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.

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”.

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.

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.

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.