Posts Tagged ‘congress’

SOPA and PIPA vs The Internet: The Epic Copyright Battle

Wednesday, 18 January, 2012 15:40 Written by Danie Roy 2 Comments

Danie Roy

Before we begin, I’d like to make some statements that you may remember from when I discussed embryonic stem cells: this article is largely meant to be informative, although it is very difficult to stay completely unbiased when I am informing you about the opinions of other people. I apologize in advance if my own opinion shines through too brightly, largely because this seems to be an issue that is polarizing people more than stem cells ever could. Add the previous sentence to the list of things I never thought I’d say. Then again, this is the internet.

By now, you’re probably aware that you can’t access Wikipedia or Craigslist as you normally would. You’ve gone to see teh lolcats or hang with your bronies, and you’ve been greeted with a popup begging you to take action. The Google doodle is now a black box. Even the news stations are talking about the sites going down. What’s going on? Just a preview of what could happen if SOPA and PIPA pass in their current forms.

SOPA and PIPA are bills in the House of Representatives and Senate, respectively, that were intended to stop online piracy from overseas sites like The Pirate Bay. Currently, nobody can touch The Pirate Bay, as evidenced by their response letters (or, as Scott called them, f/u letters). The language of the bills is entirely too broad, however, and reeks slightly of “did not do the research.” For instance, you don’t have to infringe to be taken down, you just need to be capable of infringing: that is, have a comment box, text, links, a link to someone else’s link, etc. And you may be guilty until proven innocent.

These are popping up everywhere today.

I’ll be the first to admit that most people have no idea what’s going on in Congress most of the time. I personally would rather read image file wrappers, watch paint dry, or have a root canal than watch C-SPAN. It’s boring, and in a language called “legalese.” Great for curing insomnia, though.

Before I get too far into this, I’m going to be perfectly clear: I am FOR protecting intellectual property. I’d be an out-of-work hypocrite if I wasn’t; protecting intellectual property is my job as a patent agent. However, I personally believe that SOPA and PIPA can’t protect intellectual property in their current forms.

Here’s why people are protesting and your favorite sites are dark:

  • A site does not necessarily have to infringe to be taken down. A site that could infringe, in other words, has a comment box, links, or any upload capability, can be targeted.
  • If you’ve been accused, there is no real defense: you’re assumed guilty until proven innocent, and the bill makes proving yourself innocent extremely difficult. In order to be innocent, your website must not have the functionality to infringe; which of course, all websites have. So, you’re either infringing or you’re perjuring yourself. Take your pick.
  • Takedowns are incredibly easy to initiate. The RIAA already has a history of using questionably ethical legal tactics to take out legitimate businesses. Imagine what they can do with SOPA and PIPA on their side.
  • Ever posted anything to any website? YouTube, ICanHasCheezburger?, even Facebook? Yep, you’re a potential target.
  • Ever used Gmail, Yahoo! mail, or AOL mail? Same deal.
  • Fair use will be practically considered obsolete… and ignorance will not be a defense.
  • Anyone working for the government (like our wonderful Congresspeople) is immune from the consequences of violating SOPA and PIPA.
  • The link I posted to the f/u letters? That could be a violation of SOPA/PIPA, due to The Pirate Bay’s unsavory activities.
  • Earlier versions (and possibly later versions) allowed for destabilizing the infrastructure of the internet in order to “protect” IP. That is, addresses could be removed from the universal internet lookup system, DNS, which would make site spoofing that much easier… hello viruses and stolen personal info!

To quote a godly entity, you “should pretend like it is a big deal, because it is.” Whether you’re for or against SOPA/PIPA, you really need to speak up about this issue. It affects the internet as we know it, and it affects intellectual property, too. If you’re like me, you’re for protecting intellectual property, but against seriously inhibiting the free flow of the internet.

To read more:
Tim O’Reilly’s thoughts (with some from Nancy Pelosi)

Wikipedia’s two working English pages: SOPA and PIPA

LA Times: Three congresspeople drop support, including FL Senator Marco Rubio

PCWorld’s rather factual take

My Thoughts On the Relation Between the I4I/Microsoft Supreme Court Decision and The Budget Decisions by Congress

Saturday, 11 June, 2011 12:26 Written by Mark Malek 2 Comments

By: Mark R. Malek

This past week, the United States Supreme Court issued its decision in the I4I/Microsoft case.  Scott Nyman provided a good summary of the case.  In short, the Supreme Court unanimously held that the clear and convincing standard to invalidate a patent stands.  The real issue in that case, however, is the $250Million check that Microsoft is now going to be forced to write.  I would say “OUCH,” but this is chump change to the software giant.

While I was chatting with Scott Nyman about the case, I noted that the Supreme Court pretty much just affirmed the power of the Patent Examiner. Nothing has really changed.  The Court has left the standard alone and has stuck it to Microsoft.  We then started chatting about whether or not a memo would be sent to Examiners regarding the case and, of course, started coming up with our own versions of such a memo.

The one that we thought is most likely is “Attention Examiners – The Supreme Court has affirmed that the patents you issue are very strong and difficult to invalidate.  Accordingly, please do a good job at allowing quality patents.  Also, please don’t forget that we are trying to decrease the backlog, and Congress has taken money that we generate away from us, so we need you to work harder, faster and for less money!”

Does anyone else find this offensive?  I thought so.  That is exactly what’s going on here.  The PTO management has done a pretty good job at setting up various programs in order to decrease the backlog while simultaneously increasing the quality of patents.  This is not an overnight process and I realize that there are many critics out there, but any patent practitioner would probably agree that things are better today than they were two years ago in the Patent Office, right?  We have more tools (check out some of them here, here, and here), we have new programs (check out some of them here and here), and Director Kappos seems to have a solid understanding of what the PTO needs to succeed.

Now if we can just get Congress out of the way, things can possibly move forward at a more rapid case.  Imagine my surprise this morning when I read the post on Patently-O indicating that the House Appropriations Committee Doesn’t Think the USPTO Should Keep Fees.  The post went on to note that “The House Appropriations Committee strongly opposes the USPTO to keep funds that it makes.  The committee argues allowing the USPTO to keep all their fees would make it financially independent of the budget process and therefore essentially free from congressional oversight.”

Where are the cameras?  Is this a joke?  The reality of the situation is that they are financially independent and are being punished for it.  Hey Director Kappos – I have an idea.  Why not run the PTO like every other inefficient Governmental Entity?  Just hire as many examiners as you want, spend as much as you want, spiral the PTO into debt.  That seems to be the norm.  After you do that, the PTO will look to somewhere else to skim off the top and subsidize you.

Yes, I’m kidding.  I just don’t get it.  Why should I be surprised.  This is the way the government has always run.  It is ok for you to spend more than you make (United States Post Office) because we will just go to those that make money and operate in the black, tax them, and give the money to you so that you can continue to operate in a deficit.  Sounds ugly when I simplify it, doesn’t it?

To the House Appropriations Committee I say “stick it!”  The last thing we need is more government oversight of a group that is doing great.  Bang up job you have been doing so far Congress.  It just kills you that some area of the government is efficient.  For consistency’s sake, you’re trying to screw that one up to.

Way to go Congress – Last Week’s Stunt = Cut in USPTO Funding

Wednesday, 13 April, 2011 13:14 Written by Mark Malek 1 Comment

By: Mark R. Malek

As you may have read in my last post, I am just slightly ticked off at Congress for screwing around last week and just about shutting down the government.  The good news is that they figured out how to get over their petty differences and get our government back in operation.  The bad news is that it is, as usual, at the expense of innovation, the economy, and the American public (Ok – that’s a little extreme).

According to a recent post on Patently-O, the cuts include a $100 Million cut from the PTO.  So I guess that we were lied to when we were told that there would not be any fee diversion from the PTO.  Unbelievable!

It is actually entertaining to me that one of the first places that money is taken from (notice I say taken) is the USPTO.  This is the very lifeblood, in my egotistical and arrogant opinion, of the US Economy.  Here’s the way I see it – there is a bunch of money sitting on the sidelines waiting to be invested.  It is not as though Wall Street has really instilled confidence in the American public, so who the heck wants to put their money in the stock market?  Why not invest in new technologies?  I’ll tell you why – because the patent that would protect that new technology is held up in a lengthy patent examination process at the USPTO.  Director Kappos, however, had a great idea.  How about we let the USPTO keep the money that it collects?  In other words, the USPTO is a self sufficient organization.  It is not as though the tax payers are paying money to keep the USPTO afloat.  The answer of our Government is to punish an industry that has done well in the past?  What kind of example is this?  If you make money or are self sufficient, we will take money away from you to subsidize those who do not make money?  Just me talking, but I don’t get it!

USPTO to Remain Open During Idiotic Government Shutdown

Saturday, 09 April, 2011 09:11 Written by Mark Malek 3 Comments

By: Mark R. Malek

I know that the title of the article makes it quite vague where I stand on the issue of a possible government shutdown and, if so, please allow me to clarify.  I am absolutely floored that the morons that we (the American public) have elected to represent our best interests cannot come to agreement on a budget that would keep our country in operation.  On the one side you hear that “we don’t want federal money going to support things like Planned Parenthood,” while on the other side you hear such things like “we need to reel in spending.”  No matter how you look at it, it’s all BS (and I’m not talking about a Bachelors of Science).  Sure, basic things will remain operational such as, for example, the military and law enforcement, but guess what?  The folks that cut the checks to the men and women that are defending our country and providing my family with the freedoms that we so enjoy will not be at work.  Hence, the military will essentially be out there defending us….for free.  It’s not as though they can just quit their jobs when they don’t get paid.  Ever hear of a court martial?

Luckily for the patent community, the incompetence is being held off a bit.  According to a press release issued by the United States Patent and Trademark Office, “[i]n the event of a government shutdown…the USPTO will remain open…through Monday, April 18, 2011,” i.e., another six business days.  The press release indicated that the USPTO has enough money in reserves that are not linked to this fiscal year to remain operational.  God forbid that the USPTO shuts down.  That will not exactly help out with the backlog.  With the rate of new applications being filed at about 10,000 per week (source), can we really afford a shutdown?

As I was writing this story, President Obama came on the television to announce that the government shutdown has been avoided.  Can’t say that I’m happy that it went this far, but I am happy that they squared it away.

PATENT REFORM ACT OF 2011 – PART 4 – THIRD PARTY CHALLENGES

Thursday, 17 March, 2011 11:12 Written by Scott Nyman 0 Comments

By Scott Nyman

During the past few articles, I have been discussing different aspects of the Patent Reform Act of 2011 as part of a series of articles. As a refresher, the Senate recently voted to pass the Act with a 95-5 vote. Now, a sister bill is currently making its way through The House of Representatives.

The Patent Reform Act of 2011 proposes new policies to reform (for better or worse, depending on your view) the way the U.S. examines, allows, and enforces patents. The U.S. Senate and House bills are now being called the America Invents Act of 2011. For the sake of consistency, I will continue to refer to the bill as the Patent Reform Act of 2011 in these articles.

Today, I will cover the provision of the Patent Reform Act of 2011 as it relates to third party rights. In the next article, I will finish up the series by covering the remaining topics of proposed reform in the Act. Of course, I will continue to follow the progress of the Patent Reform Act as it makes its way through the House and possibly into law.

The Patent Reform Act of 2011 includes new provisions that affect how a third party may challenge a patent or application through the USPTO. The new provisions include avenues for a third party to present a challenge during the examination and after issuance of a patent. During examination, the Patent Reform Act of 2011 proposes allowing a third party use Pre-Issuance Third-Party Submissions to challenge an application. After a patent has been issued, a third party may challenge the patent via a Third-Party Requested Post Grant Review or Inter Partes Review Proceedings. With the inclusion of these new challenges available to third parties, the Patent Reform Act of 2011 will effectively expand the possible influence of the third party.

With the new Pre-Issuance Third-Party Submissions provision, a third party would be able to submit previously published patents, applications, and other publications to the USPTO to be considered by the Examiner while examining the application for patentability. The third party may also include a description of how the submitted publications are relevant to the examination of the application.

The third party, the new third wheel.

The Third-Party Requested Post Grant Review would permit a third party to challenge the validity of a claim in an issued patent. This proposed proceeding shares a number of similarities with the reexamination proceedings in existence under the current patent system. However, under the proposed Third-Party Post Grant Review, a third party must request the review within nine months of issuance of a patent.

After the nine month period for Post Grant Review has expired, a third party may file for an Inter Partes Review Proceeding under the proposed provisions of the Patent Reform Act of 2011. This new inter partes proceeding would replace the inter partes reexamination of the current system, limiting the review to considering only novelty and obviousness issues.

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