Tuesday, June 10, 2008

Blackboard patent Bollywood style

Blackboard patent aficionados with a sense of humour should check out Randy Thornton's The Adventures of Bollywood Blackboardwala

"The mashups are made with snippets of classic Hindi Bollywood films, overlaid with user created subtitles, from a fun online tool called BombayTV from Grapheine.

The role of Blackboardwala is played by none other than Amitabh Bacchan, of course.

There are 9 amusing short episodes. Highly recommended.

EU Digital Libraries Initiative on orphan works

From the newsroom of the EU Commissioner on the Information Society:

"An agreement on copyright was signed today by libraries, archives and right holders, in the presence of Commissioner Viviane Reding. The Memorandum of Understanding on orphan works will help cultural institutions to digitise books, films and music whose authors are unknown, making them available to the public online.

(04/06/2008) This Memorandum is a major step for bringing Europe's rich literary and audiovisual heritage online, as it deals with the issue of orphan works – books, films, photographs or songs for which it is impossible to identify or locate the rightholders. As a consequence, rights cannot be cleared and therefore the works cannot be digitised or made available to the public. It clarifies how searches for rightholders have to be handled for libraries and archives and representatives of publishers, photographers, authors, record and film companies. Orphan works represent a substantial part of the collections of Europe's cultural institutions: for example, the British Library estimates that 40 percent of its copyrighted collections are orphan works. 50,000 requests were also made for re-using orphan works in Europe's film archives according to a recent survey from the Association des Cinémathèques Européennes.

In parallel, the High Level Group on Digital Libraries, chaired by Viviane Reding, adopted practical guidelines for partnerships between cultural institutions and private organisations. These partnerships such as the existing collaboration between the British Library and Cengage Gale on historical newspapers – are essential to provide funding and expertise for digitisation projects

In relation to copyright issues, the High Level Group adopted a final report in which it endorsed a new model license for making works that are out of print or out of distribution accessible for all on the internet. It also gave guidance on copyright issues related to the preservation of web-content by cultural institutions. In the area of scientific information, publishers and scientists presented the progress of a large scale project on the effects of open access to scientific journals."

US Supreme Court: Patents are for promoting progress not creating private fortunes

The US Supreme Court ruled yesterday in an important patent case that will be unfamiliar to all but IP and Supreme Court geeks, LG Electronics Inc. v Quanta Computer Inc. The WSJ has the story (unfortunately behind a pay wall) but it is worth scanning the decision itself as there are some real gems from Justice Thomas (who delivered the unanimous opinion of the Court) in there. The WSJ says:

"The Supreme Court relaxed the grip that patent owners hold over third-party uses of their inventions, continuing a recent recalibration of intellectual-property law intended to foster competition and innovation.

The opinion delivered Monday involved a U.S. patent for computer chipsets, which South Korea's LG Electronics Inc. licensed to Intel Corp., of Santa Clara, Calif. Intel made the chips and sold them to computer manufacturers. When one of those manufacturers, Quanta Computer Inc. of Taiwan, used them in its products, LG sued for infringement, arguing Quanta needed a separate license from LG to install them in computers."

The Court essentially disagreed with LG Electronics and said the company was not entitled to control downstream use of the patent due to the doctrine of patent exhaustion. Justice Thomas said:

"For over 150 years this Court has applied the doctrine of patent exhaustion to limit the patent rights that survive the initial authorized sale of a patented item...

The longstanding doctrine of patent exhaustion provides that the initial authorized sale of a patented item terminates all patent rights to that item. This Court first applied the doctrine in 19th-century cases addressing patent extensions on the Woodworth planing machine. Purchasers of licenses to sell and use the machine for the duration of the original patent term sought to continue using the licenses through the extended term. The Court held that the extension of the patent term did not affect the rights already secured by purchasers who bought the item for use "in the ordinary pursuits of life." Bloomer v. McQuewan, 14 How. 539, 549 (1853); see also ibid. ("[W]hen the machine passes to the hands of the purchaser, it is no longer within the limits of the monopoly")...

Although the Court permitted postsale restrictions on the use of a patented article in Henry v. A. B. Dick Co., 224 U. S. 1 (1912),2 that decision was short lived. In 1913, the Court refused to apply A. B. Dick to uphold price-fixing provisions in a patent license. See Bauer & Cie v. O'Donnell, 229 U. S. 1, 14-17 (1913). Shortly thereafter, in Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 518 (1917), the Court explicitly overruled A. B. Dick. In that case, a patent holder attempted to limit purchasers' use of its film projectors to show only film made under a patent held by the same company. The Court noted the "increasing frequency" with which patent holders were using A. B. Dick-style licenses to limit the use of their products and thereby using the patents to secure market control of related, unpatented items. 243 U. S., at 509, 516-517. Observing that "the primary purpose of our patent laws is not the creation of private fortunes for the owners of patents but is 'to promote the progress of science and useful arts,' " id., at 511 (quoting U. S. Const., Art. I, §8, cl. 8), the Court held that "the scope of the grant which may be made to an inventor in a patent, pursuant to the [patent] statute, must be limited to the invention described in the claims of his patent." 243 U. S., at 511. Accordingly, it reiterated the rule that "the right to vend is exhausted by a single, unconditional sale, the article sold being thereby carried outside the monopoly of the patent law and rendered free of every restriction which the vendor may attempt to put upon it." Id., at 516."

That a Supreme Court Justice in a 2008 patent decision should find the need, in a unanimous decision, to cite historical Court doctrine from 1853 ("[W]hen the machine passes to the hands of the purchaser, it is no longer within the limits of the monopoly") and 1917 ("the primary purpose of our patent laws is not the creation of private fortunes for the owners of patents but is 'to promote the progress of science and useful arts,' ") is really interesting.

The court was also particularly wary of patent holders voiding patent exhaustion doctrine through the use of patents on methods:

" LGE argues that the exhaustion doctrine is inapplicable here because it does not apply to method claims, which are contained in each of the LGE Patents. LGE reasons that, because method patents are linked not to a tangible article but to a process, they can never be exhausted through a sale. Rather, practicing the patent--which occurs upon each use of an article embodying a method patent--is permissible only to the extent rights are transferred in an assignment contract. Quanta, in turn, argues that there is no reason to preclude exhaustion of method claims, and points out that both this Court and the Federal Circuit have applied exhaustion to method claims. It argues that any other rule would allow patent holders to avoid exhaustion entirely by inserting method claims in their patent specifications.

Quanta has the better of this argument. Nothing in this Court's approach to patent exhaustion supports LGE's argument that method patents cannot be exhausted. It is true that a patented method may not be sold in the same way as an article or device, but methods nonetheless may be "embodied" in a product, the sale of which exhausts patent rights...

Eliminating exhaustion for method patents would seriously undermine the exhaustion doctrine. Patentees seeking to avoid patent exhaustion could simply draft their patent claims to describe a method rather than an apparatus.5 Apparatus and method claims "may approach each other so nearly that it will be difficult to distinguish the process from the function of the apparatus." United States ex rel. Steinmetz v. Allen, 192 U. S. 543, 559 (1904). By characterizing their claims as method instead of apparatus claims, or including a method claim for the machine's patented method of performing its task, a patent drafter could shield practically any patented item from exhaustion.

This case illustrates the danger of allowing such an end-run around exhaustion. On LGE's theory, although Intel is authorized to sell a completed computer system that practices the LGE Patents, any downstream purchasers of the system could nonetheless be liable for patent infringement. Such a result would violate the longstanding principle that, when a patented item is "once lawfully made and sold, there is no restriction on [its] use to be implied for the benefit of the patentee." Adams, 17 Wall., at 457. We therefore reject LGE's argument that method claims, as a category, are never exhaustible."

Monday, June 09, 2008

Who needs drm when you've got backward incompatibility

Last week the Open University joined Stanford, MIT, Yale and other world-class universities in publishing materials via Apple’s iTunes U service. The project, which looks great btw and congrats to all involved,

had been an open secret in the OU for a couple of months but those in the know were banned from mentioning it to anyone.

In any case, so far so good - the OU is now on iTunes

Now for reasons too long-winded and uninteresting to mention most of my day job business is conducted in my office at the Open University on an ancient Windows 2000 PC. Unfortunately that means the even more ancient Apple v Microsoft antipathy comes calling if I want to look at the OU on iTunes in the office.

If I click on the "Visit the OU on iTunes" button I get a message saying "We are unable to find iTunes on your computer". I do get a button to click to claim I have indeed got iTunes, following which I get an external protocol request asking that I launch an external application, which I agree to do and up duly comes my version 4 (yes I never got round to upgrading it on this particular computer) of iTunes with the snazzy OU frontpage.

Great. Except that when I click on one of the offerings, say the Vice Chancellor's introduction, to see what it looks like on iTunes, I get a message telling me this item needs a later version of iTunes (version 6 or higher) and offering me a click button to upgrade. The click opens a browser window on the Apple site offering me the opportunity to download iTunes 7.6. Unfortunately iTunes 7.6 is incompatible with Windows 2000...

A search for iTunes 6 (easier to find via Google btw than the Apple search facility) finally locates a 36 MB downloadable file. 4 minutes later I find myself with an executable upgrade to version 6.0.5. 14 minutes later still, having installed the software and re-started the machine as per instructions I'm now in a position, finally to view the OU material.

Well nearly. I need to go through the 'you haven't got iTunes' accusation again and the threat er... sorry... the external protocol request that I need to launch an external application. Except that on this occasion agreeing to do so brings up an iTunes software licensing agreement that I need to accept before going any further. So accepted. Followed by iTunes opening up accompanied by a message: "iTunes could not connect to the music store. The network connection was terminated unexpectedly."

Oh dear. It seems as though I'm destined not to experience the Vice Chancellor's words of wisdom from the office. Never mind.

No blast it. I won't be put off. One last try for the summit. Tap tap tappity tap. Click click clickity clicky click and iTunes is finally showing the OU front page on my screen. I nervously push the mouse in the direction of the VC's smiling face. The cursor reaches the annointed spot... my forefinger hovers over the left button of the mouse... dare I allow it to engage? Done. Progress at last! I'm through to the screen where I can "get tracks". Again, almost subconsciously the mouse moves, I've clicked on the button, the task bar indicates it is 'accessing music store' and it's downloading 1 of 5. I'm in! The download progress bar is halfway... three quarters... done. Now click on "Vice Chancellor" in the menu to the left of my screen and I get a window with the five tracks.

Double click number 1 and she's finally there 56 minutes after I first thought I might take a quick look at our iTunes offerings. A less than smooth experience you might say and it certainly brings back compatibility problems experienced over Christmas with my wife's iPod. Interestingly, in her closing comments the VC says we at the OU don't want the technology to get in the way of accessibility, yet it is exactly monetization through controlled and pay per view/ad/click accessibility that major commercial operations like Apple, the entertainment industry, retailers like Amazon, publishers, broadcasters, the big tech companies like Google and Microsoft and trade negotiators are trying to shape the market on.