Posts Tagged ‘ip’

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

Pharmaceutically Speaking: Enbrel is Patented Forever

Friday, 23 December, 2011 23:34 Written by Danie Roy 0 Comments

Danie Roy

Okay, it’s not patented forever, it just FEELS like Enbrel got patented forever.  The patent expires in 2028.

To put that in perspective, by the time this patent expires:

  • We will have gone through 4 Presidential Elections
  • I will have gone through 8 different phones (assuming 2-year contract deals, and that I don’t utterly destroy them somehow)
  • Some kid born last year will have graduated high school
  • Some kid that just started middle school this year will have a PhD
  • Kids that aren’t even born yet will be driving
  • We will have heard of no less than 15 new dates on which the world is predicted to end
  • I will be middle-aged

Okay, I scared myself with that last one. You get the general point, though.

Some of you may recall that I said the Enbrel patent was supposed to expire in October 2012.  Well, turns out there’s more than one patent.  The infinity and beyond patent was filed back in 1996, which means that it falls under the “17 years from date of issue” rule.  So, instead of expiring in 2016 (which it would under the 20 years from filing rule), this patent expires sometime in the flying car future.

Okay, maybe the patent wouldn’t expire in 2016, either.  Once we instituted the 20 years from filing rule, we also added this thing called “patent term adjustment”… you could get time added for certain delays.  And, really, with a 15 year delay, it’s quite likely that, had the patent been filed after the 20 year rule was instituted, this gem would qualify for SOME patent term adjustment.

Now, if you’re familiar with the Pharmaceutically Speaking series (or pharma IP in general), you may have noticed a dull, aching sensation in your wallet.  That’s because this means any possibility of biosimilars for Enbrel is out FOREVER!  (Or at least 17 years).

Pharmaceutically Speaking: Invention vs Observation

Wednesday, 14 December, 2011 15:26 Written by Danie Roy 0 Comments

Danie Roy

This morning, I received an email from Mark containing a rather nice article from Patently-O. The article, which was an excerpt from an upcoming book, Rethinking Patent Law by Robin Feldman.

I suppose what really pulled me in (and Mark knew it would, I imagine), was the discussion on the patentability of medical and diagnostic procedures in personalized medicine. If you’re familiar with the Pharmaceutically Speaking series, you already know my general feeling on some of the patents I’ve heard about recently. For the unfamiliar, my usual reaction generally involves something akin to the emotional stages of recovery. First, a double take, a verbal expression of disbelief, pounding my head on the desk in hopes that I can no longer comprehend what I have just read, telling the computer I’ll actually install all the updates if it makes the bad thing go away, and, finally, writing a Tactical IP article about it.

Of course, that isn’t to say that all medical/pharmaceutical patents are wrong. For instance, as much as we dislike having to pay lots of money for new drugs, that’s what funds the research to find newer and better drugs. When you start trying to patent all the immunization schedules ever and a really obvious medical test that involves little more than thought, I may not have very nice things to say to you.

Feldman points this out in the article, thankfully. I don’t feel so alone in my frustration anymore. But the point that both Feldman and I have been making is that mere thought is NOT patentable. Testing apparatus may certainly be patented, and some specific testing methods may be patented, but, even though machine or transformation is not the only test, it’s a pretty good indicator for what should and shouldn’t be considered patentable in the field of medicine.

I titled this article Invention vs Observation, because that is one of the points Feldman makes: invention is patentable, observation is not.  That is, the apparatus and the test may be patentable, because you may be creating something there. The observation of the test results, however (which is what the two patents I mentioned effectively attempt to monopolize), has NO inventive concept whatsoever. Feldman also talks about software vs math, and how the line is even fuzzier there. Right now, though, we all know you’re here for your dose of pharma.

In short, I may buy that book, and I hope the Supreme Court does the right thing.

The Patent Office Is Not Ready For The Java Update – Don’t Do It!

Friday, 11 November, 2011 09:58 Written by Mark Malek 4 Comments

By: Mark R. Malek

Consider the title of this article a very mild way of stating my frustration with the Patent Office.  Yesterday, as I was trying to file a simple document using the Patent Office’s Electronic System, I kept getting an authentication error when I was trying to log on.  I could not figure it out.  I know that my digital certificate is up to date and I know that I had the right password.  What in the world could possibly be wrong?

Maybe it was because I was using Google Chrome.  My paralegal that does most of the filing uses Internet Explorer.  That had to be the problem, right?  Mind you that I am no 20 minutes into this frustrating process, all to file a document that took me 4 minutes to draft!  So, I open up IE and try to log on.  Guess what?  Authentication error again.  Now the mild cursing begins (if you know me, you know that this is when spectators start giggling).  I know what to do, I’ll delete the digital certificate from my computer and ask my paralegal to email me another one.  You guessed it – that didn’t work either.  How frustrating do you think it is that someone is able to log onto the PTO Electronic Filing System using my digital certificate just 10 feet from me???

No problem – I’ll just call the PTO.  After navigating through about four operators and explaining the problem, I finally get a very helpful technician on the phone.  I explain the problem to her and her first reaction was the following: “Did you update Java?”  Well, not intentionally.  I do remember that when I got into the office on Wednesday, my computer was restarted and I received the indication that Windows had performed some updates.  That’s when it must have happened.  To my surprise, the technician explained to me that the PTO system was not compatible with the Java update and that I would have to uninstall the update, and reinstall an old version of Java.  Really?  The United States Patent Office?  The forefront of technology was not ready for the?

Here’s my single biggest gripe.  I receive an update from the PTO every couple of days via email.  It is some sort of breaking news, or some story about happenings within the PTO.  Would it have killed you to let me know about this problem that way?  How hard would it have been to send a quick email blast to every patent practioner out there about this issue?  I was humored when the technician told me that about 80% of the calls she received lately were for this very issue.  By the way, I had about 1 hour of my day into this disaster by that point.

As promised by the technician, uninstalling the update and reinstalling the old version of Java did the trick.  I can’t say that the Oracle site is the easiest thing that I have ever navigated, but, with a little help, I was able to find the old Java update 27 and install it.  I haven’t even told you the good part yet.  Once I got everything working, and once I was able to log onto the PTO Electronic Filing System, I was presented with a notice in big bold letters – something along the lines of “the Java update 29 is not compatible with the PTO Electronic Filing System.”  What the heck kind of government operation was this?  When I saw that notice, a string of profanity flowed from my mouth that was unmatched, even by the standards of Ralphie’s Dad from A Christmas Story. I sometimes refer to these types of meltdowns as an “Egyptian Conniption.”  Present me with a government issue like this again, and you are sure to witness it.

To my friends at Patently-O that posted a story about this issue today, I am here to confirm that it is an issue.  A little note to Director Kappos – I have been very pleased with all that has been accomplished by you as the PTO Director, but I can’t believe this one got by the IT folks at the PTO.

 

 

Patent Reform Bill Passes the Senate an on its way to the President

Friday, 09 September, 2011 09:14 Written by Mark Malek 2 Comments

By: Mark R. Malek

The United States Senate has now passed the American Invents Act by a vote of 89 to 9.  See Gene Quinn’s recent article on IPWatchdog.com for some great insight on how the vote went.  I do agree with Gene that this version of the patent reform bill is not a great one.  My biggest gripe is that the bill continues to divert fees away from the patent office.

There was a point during this process when I thought that fee diversion was finally over.  I wrote an article back in February when PTO Director David Kappos announced President Obama’s 2012 budget.  The great news during that announcement was that the budget provided $2.71 Billion for the PTO.  It is not a coincidence that the PTO was budgeted to raise $2.71 Billion in fees this year.  In other words, the PTO was pulling its own weight as far as the federal budget was concerned.  Tax payers did not feel any burden by the PTO.  As we all know, any thought that the PTO could keep the fees that it generated in order to enhance its efficiency was over quickly when the folks that we trust to run our country could not agree on a budget, and almost shut down the entire country.  Here’s my other article about that disaster, and about how the brilliance of DC cost the PTO a big cut in funding.  Aaron Thalwitzer also wrote a great article about how the budget crisis screwed some of the PTO improvements.

I just don’t get it.  What exactly has this patent reform accomplished?  I keep hearing that this will create jobs, but the only jobs that I can almost guarantee will be created is going to be for patent attorneys!  With the first to file system that is imminent, I plan on getting even busier with new patent filings.  Gone are the days when the inventor can give the market a quick test before filing.   Gone is the time to try to tweak your invention prior to filing the patent application.  Now is the time to file early and file often.

Let me ask this other question of Congress – how is it that innovation will grow and patents will get issued quicker if you have stripped the Patent Office of the funding it needs to hire more Examiners and enhance their technology?  If the fundamental problem of lengthy patent pendency remains, then how are more jobs going to be created?  Seriously, these folks just find a catch phrase and stick with it.  “Patent Reform with create jobs” is the most ridiculous one that I have heard to date.

 

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