Introduction to Intellectual Property Law & Policy

The Futility of Invoking the DMCA

Dunno if people are still reading this, but I came across this NY Times article today. A trade association has sent letters to Internet sites that post a code used to break the DVDs' copyright protection--clearly a DMCA anti-circumvention violation, right?

But the story basically shows the futility of invoking the DMCA to prevent information from circulating on the Internet, since users have embedded the code in songs, pictures, and postings. And, despite the DMCA notice, Digg.com has officially allowed the code to remain after a backlash from users.... they could be in hot water, legally.

A better solution would have been to use trade secret law to protect the number by making all employees sign non-disclosure agreements.

TSM Test is No More

Supreme Court has rejected Fed Cir's strict application of TSM test in KSR INTERNATIONAL CO. v. TELEFLEX INC.. Is this going to require an emergency exam tweak?

Review of the case is available at
Patently-O

Transcript of oral argument is available at
Oyez

Brit Knock-Off Retailer Warns Others Not to Infringe its Copyright

In a rather hypocritical fashion, British retailer Topshop has warned other labels not to infringe the copyright protection it obtained for a new line designed by model and oft-named "best dressed" celebrity Kate Moss (see story here). Topshop has made its living by copying the runway looks of higher-level designers (for those of you who haven't heard of it, it's similar to H&M or Zara).

If you're interested, you can see the clothing that's so worthy of a copyright is here: http://www.katemosstopshop.com/.

Now, look: I follow fashion and, somewhat embarrassingly, celebrity gossip, and I don't see one original idea in this collection. As the NY Post points out: it's all stuff she's worn before. How can this possibly meet the originality standard of copyright law?! This clothing line merely goes where Helmut Lang, Azzedine Alaia, Coco Chanel, and many, many other designers have gone before.

t's difficult to imagine any court enforcing such a copyright, but I'd love to see the battle over, say, a white tank top with buttons on it. I'd especially enjoy it if Topshop tried to go after one of the original designers that Kate ripped off!

Google back in court (again)

District Judge allows another Google "Adword" issue case to move forward.

http://www.eweek.com/article2/0,1895,2115640,00.asp

Patent Reform Act of 2007

Unfortunately Patent Wiki idea has not made its way to Congress yet, but they will be introducing a Patent Reform Act today.

Seuss sues

I don’t know if people are still visiting this blog, but if you are, here’s an interesting copyright controversy:

Tangled up in Seuss

Apparently Dr. Seuss Enterprises is suing a Houston based musician for setting seven Dr. Seuss classics to Bob Dylan-style music.

The article quotes law professor Jennifer Rothman, who suggests this musician's work is probably not protected as “transformative use” because it doesn’t comment on or criticize the original work in the way that, for instance, 2 Live Crew's “Pretty Woman” did. (Rothman also notes another w/ Ryan’s fair use defense is that he uses the entire material)

Rothman’s analysis strikes me as correct. But it does seem sort of odd that critical or parodic responses to a work are protected but other creative re-interpretations are not. As the author of this article points out, presenting Dr. Seuss’s material in this manner does provide a new perspective on it: “By inserting Dr. Seuss' words into a novel context, specifically, the voice and style of a radical 1960s troubadour, the "Dylan Hears a Who" project comments on the original work by exposing a sly, rebellious, countercultural dimension to his work that has remained hidden. At the same time, it exposes a playful though pointed creative intelligence shared by two of the most important figures of the 1960s.”

The problem seems to be that the borrowing musician's perspective isn’t explicitly parodic. But why does it have to be? From a First Amendment perspective, it definitely makes sense to provide special protections to parody. But if copyright law aims to promote creativity, I’m not sure why the “transformative uses” it recognizes are limited to those that make comments of a critical, comic, or mocking nature. Why can Alanis Morrisette sing “My Humps,” but a Dylan-wannabe can’t sing the Cat-in-the-Hat, if they both creatively re-imagine the work? Indeed, maybe what is bothering me is that taking a children’s book and re-creating it as a 60’s style folk song (merging two “creative intelligences” as the article puts it) seems like a much more radical, inventive transformation than a mere parody of another song.

I think what also gets me about this situation is that Dr. Seuss isn’t even around any more. The author is not being incentivized to create by this protection, and someone else’s creativity is seriously hindered. I guess this is the same old argument for limiting copyright protection to the life of the author, but it does make you wonder how society benefits from having the potential for this kind of responsive creativity locked up for so long.

Lawyers - As Generic As It Gets

Federal Circuit upholds TTAB ruling that Lawyers.com is as generic as it gets and cannot be trademarked.

From HowAppealing.com.

Patents.com For Sale

Here is one way to spend your summer job earnings: Patents.com domain name is for sale.

Ghost Rider and Strategic Behavior

This is an interesting case dealing with a disputed copyright over the recent Ghost Rider movie.

Basically, Ghost Rider was a work for hire creation for Marvel comics. One of Ghost Rider's creators is disputing the way the copyright was registered, arguing that in effect that the copyright reverted back to him when Marvel failed to register it correctly.

The interesting wrinkle in this case is the strategic behavior on the part of the creator. He became aware of this problem in 2001, but waited until 2007 to bring the issue up. He explicitly said back in 2001 that he was waiting until Marvel did something very profitable with the character (ie Make a movie), before arguing over his claim on the copyright.

I think it will be very interesting to see how the court analyzes this last part. Does the court want to encourage such strategic behavior? Certainly from the creator's perspective, the value of the copyright has greatly increased as a result of the successful movie, but should he have been allowed to sit and wait for someone to make money from the copyrighted works before asserting his claim. For all intents and purposes, the creator here seems to be acting like a "copyright troll".

We're Number 2 ...

... on the MPAA's list of top-25 "pirate" universities.

MPAA's Most Wanted: MPAA Compiles List Of Top 25 "Pirate" Universities - Consumerist

Who Owns the Copyright for Live Recordings?

There's an older article in the NY Times that discusses music recordings that were never copyrighted:

Who Owns the Live Music of Days Gone By?
NY Times
March 12, 2007
http://www.nytimes.com/2007/03/12/technology/12video.html?ex=1331352000&en=21492fdaa6dfceef&ei=5088&partner=rssnyt&emc=rss
(if this link requires a password, Google the title of the article.)

At issue is the collection of concert promoter Bill Graham, which includies recordings of the Grateful Dead, Led Zeppelin, and the Doors. After Mr. Graham died in 1991, a Minnesota businessman bought his collection and started the Web site WolfgangsVault.com to sell his memorabilia (posters, tickets, photographs, etc.). But the dispute really took off last year, when Wolfgang’s Vault began streaming over the Internet some of the concerts Mr. Graham had recorded. The stream was "commercial" in that it was meant to draw potential customers to the site, but the owner did not make a profit by charging.

It seems fairly clear that, under 17 USC §202, absent any agreement the rights are retained by the artists ("Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work").

Further, 17 USC §204(a), the copyright owner (the artist, unless otherwise assigned), must sign away his rights in "an instrument of conveyance, or a note or memorandum of the transfer." Thus, it would seem the artists are right, because even if they agreed to perform and be taped, if they didn't sign anything they should still retain their copyright.

However, in good news for concert lovers, Wolfgang's Vault's collection of recordings remains online: http://concerts.wolfgangsvault.com/

How is this possible? I think their legal arguments must revolve around fair use. The website will try to claim that the use of non-commercial (unlikely to succeed, since it's basically used as marketing for the site), that the nature is of great public value, that the amount used is small (in some cases, it's only part of a concert), and that there is little market effect. On the market effect point, it's interesting--supposing these are the ONLY copies of the concert in question, and WV owns the actual recordings, the copyright owner can't sell the recordings, right? So it would depend on whether there's a good market substitute in other concert recordings by the same artist.

On a side note, I just noticed that the term of copyright, pre-1978, was only 56 years. Under 304(c), even if an artist transferred his rights away, so long as it was before the extension he can get those rights back (and the extra 39 years of ownership). I wonder, then, about music like the Beatles collection: can the Beatles get their rights back in a few years?

Struck by Starbucks

This is an article about Starstruck, a new planned chain of coffee and cosmetics shops created in India. Starbucks is trying to prevent Starstruck from going forward and has filed a complaint with India's patent office, alleging that this will result in a diminishing value of the Starbucks trademark and confusion among the consuming public.

http://www.forbes.com/facesinthenews/2007/03/15/starbuck-starstruck-patent-markets-equity-cx_rd_0314markets5.html

"Made From Sugar"

This NY Times article discusses a new lawsuit brought by the maker of Equal against the maker of Splenda, claiming that Splenda's tagline "made from sugar" falsely leads the consumer to believe that it is made with sugar, when it in fact isn't. Although the article doesn't say it, Equal is brining its claim under the Lanham Act. The article also mentions that the maker of Splenda has patented dozens of ways of making sucralose, the main sugar-substitute in Splenda.

http://www.nytimes.com/2007/04/06/business/media/06sweet.html?_r=1&hp&oref=slogin

Compromise Injunctions

Bullet to the Head?

Rather than issuing a full permanent injuction against Vonage (for infringing on Verizon patents) a federal judge issued a "compromise injunction" barring Vonage from signing up new customers, but still allowing them to service existing customers.

"The company’s lawyers argued that the compromise injunction issued by U.S. District Court Judge Claude Hilton would be almost as devastating as ordering Vonage to cut off service to its 2.2 million existing customers. "It’s the difference of cutting off oxygen as opposed to the bullet in the head,” Vonage lawyer Roger Warin said."

http://www.msnbc.msn.com/id/17982142/

EMI, DRM and other acronyms

EMI is dropping DRM from their iTunes sales. EMI is one of the 'major' labels and carries acts like Coldplay and the immortal MIMS. Here's EMI's press release; here's Apple's. This is, at least partially, in response to Steve Jobs' urging the four major record companies, including EMI, to abolish DRM encoding on digital music files. Ah, but here's the rub: the new DRM-free EMI music will cost an extra thirty cents at the iTunes Music Store. That includes not only interoperability, but (supposedly) higher sound quality.

Giving consumers the choice of the more expensive interoperable file or the DRM-encoded one at the typical ninety-nine cent price point is an interesting way for EMI to test the waters. As a consumer of digital music, I will probably continue to go for the cheaper versions for two reasons: 1. I don't have an MP3 player at the moment; 2. though I'm a huge fan of pop music I'm not a big audiophile, and the regular iTunes downloads are good enough sound quality for me. I think most people will probably make the same choice because iPods dominate the MP3 player market, and there's little reason to pay an extra $3 for a ten-track album if you aren't putting an iTunes download on a Zune or the like. The equation may change, though, with the increasing popularity of MP3 phones, a market Apple hopes to dominate but doesn't yet. If I have an LG Chocolate phone in a year but want to download the next Phoenix album (EMI artist) from iTunes, I'm going to have to get the interoperable files.

How does the law play in? Well, as Jobs notes in his "Thoughts on Music" column linked above, "[s]ince Apple does not own or control any music itself, it must license the rights to distribute music from others, primarily the 'big four'. . ." In other words, it will be up to Sony BMG, Universal, and Warner Bros. to follow EMI in cooperating with Jobs. You can lead the music business to the digital revolution, but you can't make them drink it in until they themselves decide to.

Pharmaceutical Patents

This short op-ed scrutinizes the current system of pharmaceutical patents. Because of the high costs of drug development, the author writes, companies are only willing to develop medicines they can patent. This has obviously terrible consequences.

I'm frankly surprised this issue does not get more attention.

http://www.nytimes.com/2007/04/01/opinion/01moss.html

Copyright in School Work?

TurnItIn.com is a service for teachers to screen for plagiarism in student papers. The teachers submit student work to TurnItIn.com that compares it to other students' papers, encyclopedia entries, etc. The disgruntled students are now fighting back in court, claiming that the service violates the copyrights in their work. TurnItIn.com makes and retains copies of student's work to then use it as a database for its plagiarism detection algorithm.

The complaint can be found here. TurnItIn.com has a memo posted discussing their legal analysis of the issue. Prof. Volokh from UCLA has some thoughts about the issue.

Personally, I am unpersuaded by the transformative use argument in this case.

Assuming the use is infringing, a completely different issue is whether schools can force students to relinquish their copyrights as part of their enrollment in the school. Scholarly journals require authors to give up all or most of their rights in return for publication. Can a school require students to relinquish their rights in return for a grade/credit? How does the answer to this question change considering that primary education is compulsory?

Open Call from the Patent Office

I thought this Washington Post article did a good job of explaining, in laymen terms, the Patent and Trademark Office's trial use of the internet in "wiki"-style solicitation of feedback from the public for consideration by the agency's examiners when looking at certain patents.

http://www.washingtonpost.com/wp-dyn/content/article/2007/03/04/AR2007030401263.html

Companies are volunteering to have their patents reviewed via the Internet, including Microsoft, Intel, Hewlett-Packard and Oracle, and IBM. Apparently the program will begin primarily with applications in the software design realm.

Some of the blog entries that the article links to are also interesting...

Pfizer Wins Ruling in Bid to Block Generic Celebrex

This is a Bloomberg News story about Pfizer's patent for Celebrex being upheld even though it was challenged as obvious. Teva, a generic drug company, claimed that Pfizer's three patents for active ingredient, pharmaceutical composition and method of use for Celebrex were invalid for obviousness. According to Teva, prior inventions made Celebrex obvious and that it was covered by a prior patent.

http://www.bloomberg.com/apps/news?pid=newsarchive&sid=a_nbYg7i9CI0

Court: "Remote DVRs" Would Infringe Copyright

An interesting copyright case out of SDNY: a federal district court judge ruled on Thursday that Cablevision's plan to offer a "remote DVR" to customers would be copyright infringement.

Some notable things: the remote DVR would work precisely the same as today's in-home DVRs except for the fact that the hard-drive used to store the recorded content would be located on a Cablevision server, rather than in the customer's home. The court here compared this service to an "On Demand" service where the cable companies must have licenses to broadcast content on demand, but that's a terrible comparison. Assuming that in-home DVRs are legal (perhaps that's not such a safe assumption?) it's awfully hard to understand the logic of this decision from a policy perspective. Should the physical storage location of the content really be the key factor in determining whether the technology infringes copyright?

Some commentary and insight on the case from the folks at Public Knowledge is available here.

Brooklyn Law Prof Has A Lil Fun With YouTube

I thought this was an interesting educational technique taking place over at Brooklyn Law...

"A Professor Attempts a Goal-Line Stand

In honor of Viacom’s much-publicized decision to sue Google for a whopping $1-billion in “massive intentional copyright infringement” damages, we thought we’d provide an update on a rather less lucrative YouTube copyright saga.

Last month Wendy Seltzer, a visiting assistant professor at Brooklyn Law School, was slapped with a DMCA takedown notice after she posted a snippet of the NFL’s standard copyright warning, taken from this year’s Super Bowl, on YouTube (The Chronicle, February 16). When last we checked in, Ms. Seltzer had sent a counternotification to the Web site, arguing that the clip was protected by fair-use doctrine and should be reinstated.

As it turns out, YouTube read Ms. Seltzer’s counternotification and decided she had a point: The site told her it would reinstate the clip. A week later, though, the video has already been taken back offline because of a copyright-infringement claim by the National Football League, according to YouTube. Copyright law, it seems, is nothing if not a back-and-forth game."

This story is all over the internet- I first saw it on an AOL Sports Newsfeed- but the above article comes from The Chronicle of Higher Education:
http://chronicle.com/wiredcampus/article/1930/a-professor-attempts-a-goal-line-stand

I'm not sure I am fully clear on what the NFL's interest/intent is here, but I think Prof Seltzer is very clever in attempting to demonstrate the hypersensitivity of some copyright holders. I also think cases such as these begin to establish a sort of common law for just how to handle the copyright law monster that is You Tube.

Prof Seltzer has a blog here: http://wendy.seltzer.org/

K9 Copyright Enforcement

There's a really interesting news article at Scientific American's website. Apparently dogs can be trained to smell a chemical used in the production of DVDs and CDs, and police are using them to detect illegal copies. Although the same chemical is used in legal production of discs as well as illegal, the dogs are useful in determining the contents of shipping containers. Using sniffer dogs is much more efficient (and cheaper) than traditional searches of sealed cargo containers. Malaysia recently became the first country to use this technique, borrowing two MPAA-owned dogs, Flo and Lucky.
http://www.sciam.com/article.cfm?chanID=sa003&articleID=A6DD1CDF6F9693DCF11C4450FAB0E3F2

Carol Burnett Suing "Family Guy"

Carol Burnett is suing "Family Guy" for alleged infringement of her staple "ear tug" in one of their episodes. However, I think that this raises many questions regarding fair use, parodies, and satires. The producers of "Family Guy" initially asked Burnett if they could use her show's theme song in one of their episodes; they were denied permission. Supposedly, "Family Guy" then decided to poke fun at her "ear tug" in place of using the song in the episode. Nevertheless, the use of the song may fall within fair use given the nature of the show but it will be interesting to see how the case resolves.

http://www.cnn.com/2007/SHOWBIZ/TV/03/19/television.burnett.reut/index.html

Transformative use in artwork - Revisiting the fair use doctrine

An interesting example of fair use for artwork... Here's a quick summary: Artist Koons drew on part of a photograph taken by Andrea Blanch titled Silk Sandals by Gucci and published in the August 2000 issue of Allure magazine to illustrate an article on metallic makeup. Koons took the image of the legs and diamond sandals from that photo to use in his painting Niagara, which also includes three other pairs of women’s legs dangling surreally over a landscape of pies and cakes.

The link below shows a copy of the artwork and photo in dispute. I recommend actually reading the opinion if you have time because it goes through the 4 factors of s107: Blanch v. Koons, 467 F.3d 244 (You'll need to go to westlaw or lexis because I didn't know how to upload the file!)

http://newsgrist.typepad.com/underbelly/2006/01/koons_wins_land.html

Copyright Infringement & Patent Infringement

A studio just filed a lawsuit against a blog website claiming copyright infringement of a picture of Jennifer Aniston. Although there is not much detail about the case yet, I thought it brought up some relevant issues about copyright infringement and the internet.

http://www.cnn.com/2007/SHOWBIZ/Movies/02/22/aniston.ap/index.html

In another case, Microsoft was just ordered to pay $1.5 billion for patent infringement related to digital music technology. Although we haven't covered patents in detail yet, the case raises many pertinent issues about music downloading and use on computers as we discussed in class this week.

http://money.cnn.com/2007/02/22/technology/microsoft_alcatel/index.htm?cnn=yes

Apple, Cisco Settle iPhone TM Dispute

See here:

Cisco, Apple settle 'iPhone' dispute - Yahoo! News

Not unexpected. Hard to see how 'simultanous use' is going to work, however. And the 'exploring interoperability' business is just funny; Cisco can keep dreaming.

"Music Wants to be Free

In the Feb 10-16th edition of The Economist, there is an article entitled “Music wants to be free.” It discusses Steve Jobs recent essay published on Apple’s website entitled “Thoughts on Music” (http://www.apple.com/hotnews/thoughtsonmusic/). Digital Rights Management (DRM) is the technology everyone, including Apple, uses to guard against theft of downloaded music. Jobs, under criticism from European regulators to open up Apple’s DRM technology (“FairPlay”) so that music purchased from iTunes can be played on digital devices purchased from other companies, offers a different solution.

Previously, Apple has supported DRM because it kept the “pirates at bay.” But in his essay, Jobs says that the record companies demands that Apple protect the music using this technology is the reason for the current system Apple has in place:

“Apple was able to negotiate landmark usage rights at the time, which include allowing users to play their DRM protected music on up to 5 computers and on an unlimited number of iPods. Obtaining such rights from the music companies was unprecedented at the time, and even today is unmatched by most other digital music services. However, a key provision of our agreements with the music companies is that if our DRM system is compromised and their music becomes playable on unauthorized devices, we have only a small number of weeks to fix the problem or they can withdraw their entire music catalog from our iTunes store.”

Mr. Jobs now advocates for the position that music companies sell their music unprotected. This new “solution” seems like a shrew political move by Jobs to shift the blame (which I know from personal knowledge comes from consumers as well) away from Apple to the record companies. But the Economist article argues that getting rid of DRM would promote competition between MP3 players. Apple is in a good position to fare well in a competitive market due to their current situation. This freeing of the market would of course greatly benefit the consumers who are currently locked into a particular player due to the difficulty in transferring music. As the article and Jobs point out, record companies may be in favor of a switch to selling unprotected music for the simple reason that piracy may be impossible to stop.

I have a couple of quick thoughts of my own on this situation. I believe that a far bigger problem than the transferability of the music is the fact that iPods seem to brake every two seconds. In fact I read an article about a year ago in the NYTimes that this fragility in the iPod was an increasing source of consumer frustration. Hopefully, if music begins to be sold unprotected, the increased competitiveness in the market will force Apple to improve this aspect of their product.

Also, a big part of this story is what partly prompted this essay from Jobs. European regulators are putting a lot of pressure on Apple to license FairPlay to rivals. It seems that our current IP regime will face ever increasing clashes from the rest of the world (including the ever more powerful China) that may create a whole new set of problems.

Legal Grey Area? Mixtapes

DJs (originally from Philly) were arrested in Atlanta for violation of copyright laws (in addition to RICO, organized crime type statute) for making hip hop mixtapes.

http://www.nytimes.com/2007/02/18/magazine/18djdrama.t.html?ex=1329541200&en=419c82af262861e1&ei=5124&partner=permalink&exprod=permalink

Essentially these mixtapes are like taped versions of DJ sets. The copyright issue comes in from the DJs quoting, sampling, or playing full versions of copyrighted items without paying royalites or licensing fees. These mixtapes are sold on the street and even in retailers like Best Buy and FYE.

Making mixtapes can promote creativity and innovation by introducing the public to new artists who have full songs on the mixtape or more established or perhaps forgotten artists from samples taken from their work. It can also be a way for artists to gain a following without giving away some of their creative power to the record industry.

On the other hand, the DJs who "host" the mixtapes are the ones generally receiving the bulk of the economic benefit, instead of the record companies, and the hosts may not do much for the artists on the mixtapes in terms of promoting their careers. The reason royalties or licensing fees are paid in the first place are to protect the artist and give them incentive to create, and mixtapes do not provide that.

What I think is interesting is how hip hop is a different form of music than what the copyright system has previously dealt with. Royalties and licensing fees have worked, as far as I know, pretty well to protect artists. However hip hop seems to be a little more collaborative and grassroots oriented which perhaps should be dealt with in a different way in order to assure protection of the artists but also give the public the benefit of their creativity. I personally am not too educated about hip hop business models beyond what I've observed but if anyone has any other insight, please comment!

Does Microsoft's Zune raise copyright issues?

Zune is Microsoft's digital portable media player and online music store. To give you some background:
- Zune is different from other portable media players b/c it has Wi-Fi communication that allows for limited sharing of songs, recordings, playlists and pictures with other Zunes.
- Audio files transferred from one Zune to another can be played for up to three days or three plays, whichever comes first, after which it expires unless purchased or downloaded via the Zune Marketplace online.
- Recipients cannot re-send music or audio files that they have received via the sharing feature.
- Many DRM-protected songs are ineligible for sharing, as record companies can flag songs from the Zune Marketplace as non-distributable.

The commentary attached raises issues about fair use concerning the features of Zune. I don't own a Zune, so I haven't experienced first hand how it works. But if you own one, please feel free to give your thoughts.

http://www.wyman.us/main/2006/09/microsoft_hubri.html

Speaking of P2P filesharing

http://blog.wired.com/music/2007/02/riaa_pulls_p2pl.html

NY Times article on gene patents

Novelist Michael Crichton details the problems inherent in patenting genes, claiming that the US Patent Office is to blame for allowing patents of "features of the natural world." He argues that gene patents stifle innovation because the patent holder can charge whatever he wants in order for scientists to use the patented gene in research.

He urges support of a bill called the Genomic Research and Accessibility Act, which aims to ban the practice of patenting genes found in nature.

http://www.nytimes.com/2007/02/13/opinion/13crichton.html?em&ex=1171602000&en=2679aaa783f7056c&ei=5087%0A

More about gene patents, from: http://www.guardian.co.uk/genes/article/0,2763,397385,00.html

What are the criteria for granting a patent to an inventor?
An invention must be novel - no-one else can have made it public; innovative - it can't be a development which would be obvious to specialists in the relevant field; and useful - it has to aid a practical human activity. It cannot be simply a discovery.

But surely genes are pure discoveries?
So opponents of gene patenting argue. They also point out that with modern automated gene analysis techniques, the non-obviousness of genes is becoming doubtful. Supporters of gene patenting say gene function is not obvious and that genes are not mere discoveries because the genes are patented together with inventive descriptions of how they can be used for diagnosis or therapy.

So what living things can be patented?
Naturally-occurring life forms, from plankton to people, cannot. But genetically engineered plants and animals, such as GM maize or lab mice designed to be prone to cancer, can. So can the naturally-occurring chemical codes and substances which allow all plants and animals, including humans, to function on a cellular level - like genes, or hormones - as long as the 'inventor' can specify a use for them.

Why should anyone want to patent something which occurs in nature?
Holding a patent on a human, plant or animal gene gives the holder control over commercial exploitation of that gene. If it's a human gene, that may involve diagnosis or therapy for a disease; if plant or animal, it may also involve disease, the promotion of a desirable characteristic like a sweet taste, or the transfer of the gene from one organism to another.

If someone has patented something which occurs naturally in my body, do I have to pay them?
No. Confusingly, a naturally-occurring gene can be patented as an isolated sequence, but not a gene in its natural state.

Can someone use a patent to block research?
Yes and no. One of the claimed advantages of the patent system is that it obliges the inventor to publish details of his or her invention, allowing academic scientists to study it. But as soon as a researcher tries to make commercial use of developments based on the original patent - by going into partnership with a drugs firm, for instance, or charging patients at cost for a genetic test - the patent holder can step in to stop them, or oblige them to pay a licence fee.

How important are patents for innovative companies?
Traditionally very important, as inventor James Dyson's recent victory over Hoover in the bagless vacuum cleaner wars showed. Many biotech companies, big and small, argue that genes must be patentable to allow firms to recoup their investment in identifying them. But other firms fear allowing genes to be patented before any specific, proven use has been established for them will hold back medical advances.

Can governments override patents?
Yes, if they feel it is vital for the public good, and the patent holder is being too restrictive.

What would be the impact on the economy if gene patenting was banned?
Unknown. The majority within the biotech lobby argues that it would discourage investment in genetic research. Yet the cost of identifying the function of a gene is a fraction of the cost of turning that gene into something useful, like a drug. There is an argument that the pharmaceutical industry, which has to come up with the bulk of the money anyway, would do better if firms were able to work freely with any genes and focused on patenting drugs instead. However, gene patent ownership is so important a part of biotech companies' stock market valuation that to threaten the concept would cause a market upheaval.

Longer description here: http://www.ornl.gov/sci/techresources/Human_Genome/elsi/patents.shtml

New guidelines were released by the Patent Office last year: http://www.uspto.gov/web/offices/com/sol/notices/utilexmguide.pdf
These new rules supposedly make it harder to patent a gene. In addition to showing "utility"(credible, scientific use), the patent filer must also show "substantial use". The goal is to prevent companies from racing to file a patent immediately after isolating a gene.

Obama Bin Laden trademark rejected

This showed up on the Drudge Report today. My favorite explanation of why Alexandre Battle may not have a trademark for Obama Bin Laden:

The record does not include the written consent of Barack Obama and Osama bin Laden, the names of the living individuals identified in the proposed mark.

http://www.thesmokinggun.com/archive/years/2007/0213071obama1.html

Cocaine and a bunch of law students...

Cocaine is a highly caffeinated energy drink which claims to be 350% stronger than other energy drinks such as Red Bull. However, people supposedly do not experience the "sugar crash" that other energy drinks produce. The makers' claim that the drink is a "legal alternative to the drug cocaine".

The trademark examining attorney had tentatively approved the application. But then five law students came along and led him to change his mind...

http://www.lexisone.com/newattorneys/articles/n121806c.html

Google keywords again

Major media companies are accusing Google of selling keywords to a site that offers technology to find and download pirated movies. Google is reported to be changing its policies to stop this.

It makes sense to me, as I don't think Google would be as successful in defending this keyword sale as it has been in other cases.

(This is a Wall Street Journal article - so I can only link a free preview, I believe)
\http://users2.wsj.com/lmda/do/checkLogin?mg=wsj-users2&url=http%3A%2F%2Fonline.wsj.com%2Farticle%2FSB117125197567105533.html%3Fmod%3Dhome_whats_news_us

RIM deals from both sides of the deck, gets BlackJack

The same company famous for it's defense of IP transgressions on its underlying technology went on the offensive against Samsung, alleging that the BlackJack smartphone was too close in name to its famous BlackBerry:

http://www.pdablast.com/articles/2007/2/200728-RIM-Settles-Trademark-Case.html

I think quick settlement was the obvious option for Samsung, maybe learning a lesson from RIM's extended dispute with NTP, given the factors laid out in the TDRA for blurring:
1. The names are similar in their first word, the fact that they are two conjoined words, the fact that the first letter of each word is capitalized.
2. BlackBerry is inherently distinctive in the sense that it is an arbitrary name for a phone.
3. BlackBerry is engaging in exclusive use of the mark within the relevant industry, and aggressively polices use of similar marks (brought suit against a NJ toy maker incorporating the word "berry" into childrens' organizers)
4. The BlackBerry name is highly recognizable as the name of the RIM handheld and has arguably attained "household word" status (or infamy).
5. It is likely a court would find that Samsung attempted to create an association with the famous mark. Looking objectively at the name and the product (smartphone with querty keyboard, similarly placed- and colored buttons, similar functionality) it would appear that Samsung wanted to create an association with BlackBerry to compete directly in the market.
6. Actual association? The products target the same tech-savvy, educated professionals group that is arguably less likely to make false associations between these two products. For example, the differences in operating systems might preclude association more than name would link them. However, BlackBerry could probably rely on long-time user Paris Hilton to truthfully testify about any confusion leading to misassociation.

Good move, Samsung.

Converse shoes and trademark infringement

http://www.law.com/jsp/article.jsp?id=1171015374755

Converse, the shoe company, apparently used the trademarks of historic black fraternities and sororities on some of its shoes. The fraternities and sororities involved have agreed to a settlement. Converse is going to share the revenue from those shoes with the organizations, and it also is going to offer internships in finance and marketing to students from those particular organizations. This seems to be a really good way to make both parties happy; Converse can keep producing the shoes, and the fraternities and sororities get lots of money.
It seems to me that Converse was really the party that made the trademark valuable; I doubt that had the fraternities and sororities produced their own shoes bearing their trademarks, they would have made anywhere near the amount of money they will receive from Converse's sales. I thought that the internships were an interesting term of the settlement, and will probably help restore goodwill (not in the trademark sense) between the two parties. The lawyers probably aren't making as much money as they would have had the case gone to court, though.

Website Trademark Dispute

I found this interesting article about singer Keith Urban filing a lawsuit against painter Keith Urban for use of the web address keithurban.com. (The singer himself owns the keithurban.net domain.) He claims that the artist's website constitutes dilution, is a violation of the anti-cybersquatting consumer protection act, and is misleading.

I think this situation, like many cases we have discussed in class, raises many questions about where the internet fits into trademark law and protection. Also, when looking at the artist's website, he does not state that the site is not related to the singer. He indicates that painting is one of his "hobbies," which to some users could be misinterpreted as a hobby of the singer. In addition, at the top of the website he has ads sponsored by Google that are almost all related to the singer not the painter. This may cause further confusion to any user/consumer on the site as they may think that the ads are related to the contents and owner of the site, although it does state that the ads are Google sponsored.

http://www.cnn.com/2007/SHOWBIZ/Music/02/06/people.keithurban.law.ap/index.html

Trademark dilution and Breastfeeding

Here's an interesting (and rather strange...) trademark conflict between a breastfeeding activist and the National Pork Board:

http://thelactivist.blogspot.com/2007/02/overzealous-big-pork-stomps-on.html

The Pork Board seems to be using fairly standard antidilution arguments in its cease-and-desist letter.

Viacom v. YouTube

http://www.nytimes.com/2007/02/03/technology/03tube.html?_r=1&oref=slogin

Seeing as how were had a long discussion regarding YouTube and the content that's shown, I thought this article was pretty relevant. Sadly, no more Daily Show.

Apple and Beatles Settle Trademark Suit

New York Times announced that Apple and Beatles have settled their trademark suit. However, as the article points out, the Beatles are still refusing to allow their songs to be sold by any online service (ie iTunes etc). Here is the link:

http://www.nytimes.com/aponline/business/AP-Apple-Beatles.html?hp&ex=1170738000&en=a285b1488cfe90ce&ei=5094&partner=homepage

Keyword Search

The following link is a page that discusses Yahoo and keyword/trademark issues. It's a little old, but I still found it interesting. http://www.searchenginejournal.com/?p=2990

UT logo trademark dispute

I was in Texas over the weekend and read about this pretty interesting trademark dispute. It seems the University of Texas is suing a businessman and alum of rival college Texas A&M for selling t-shirts with a manipulated version of Texas' trademarked longhorn logo and the caption "Saw em Off". You can read more about it and see a picture of a t-shirt at the links below...

http://www.theeagle.com/stories/012307/am_20070123007.php
http://www.zazzle.com/product/235969674197844075

This situation is a lot like the Barbie case and the manipulated Coca-Cola mark that said "Cocaine" that we discussed in class. UT's argument is dilution of their trademark, but it would seem the businessman has the upper-hand because he can argue along the same lines as MCA Records in the Barbie case that the shirts are not "purely commercial" because of the 1st amendment/parody implications and that they should fall under the noncommercial use exemption of the FTDA.

Fake iPods

I followed an ad that appeared on top of my Gmail inbox (I'm always a sucker for those...) that was for "cheap iPod nanos". I couldn't believe how meticulously (and blatantly) they copied the design of the original. Check it out here and compare it to the real Nano.

I can't imagine what this company's business plan might be. Have they factored in future legal fees or do they plan to give in immediately when they get a cease and desist order? They must know that their misleading ads and obvious copying raises a big red flag to Apple, and they must have a sense that they'll be shut down pretty quickly (at least in the legal marketplace). Do they think that they'll sell enough of these before that happens that they'll make a profit? Maybe Apple wouldn't pursue the issue if the fakes were only sold along with "Rolexes" by a shady guy on the street corner, but to set up a website with advertising seems like corporate suicide.

How a Viral Video may Suggest the Future of Music

Our alert colleague Lauren Pringle found this very interesting summary/analysis of the various issues surroudning the recent online activity surrounding the SNL "D*ick in a Box" video and song.

/// Note: the songs/videos discussed are sexually explicit in subject matter (though not in fact). Probably not appropriate to view them at Law School kiosk computers with the sound turned up loud. ///

Patents for the Apple iPhone

Apple reports that it is seeking 'over 200' patents for technologies related to the iPhone. A good example of (a) the importance of patents even in a fast-paced business like consumer electronics, and (b) how multiple patents can relate to a single product.

Apple - iPhone - iPod

Cisco sues Apple over 'iPhone' mark

Interesting high-profile trademark story. See the New York Times story here.

Apple is a big company, with LOTS of good lawyers (including some of my law school classmates). Any idea why they would go ahead and announce the name?