The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy
InternKats: Rose Hughes, Ieva Giedrimaite, and Cecilia Sbrolli
SpecialKats: Verónica Rodríguez Arguijo (TechieKat), Hayleigh Bosher (Book Review Editor), and Tian Lu (Asia Correspondent).

Monday, 31 May 2010

Facebook in Pakistan: some sensitive issues

The IPKat's friend Arpan Banerjee has drawn his attention to this piece in The Telegraph concerning the launch in Pakistan of a "rival Facebook" under the name MillatFacebook, taking its name from the Urdu term for 'freedom'. According to the article, the intention of its backers was to register their disapproval of the images of the Muslim prophet and to offer an alternative to a site that has also been criticised for its lax and confusing privacy controls.

Following large demonstrations in Pakistan, objecting that the US-based social networking site was hosting a contest calling for cartoons of the Prophet Mohammed, a national court ordered local ISPs to block access to Facebook's social networking site last week. Similar blocking orders have been made against YouTube, Wikipedia and other services, alleging blasphemous content (the article reports that Muslims argue that any representation of the Prophet Mohammed is blasphemous).

MillatFacebook's designers, who have expressed the hope that their site will attract people of all faiths, admit it shares some of the same features of its better-known template:
"In fact, from the blue navigation panel to the map of the world, the login page bears a remarkable similarity to Facebook".
In this context Arpan asks:
1. Can passing off be alleged? Despite the similarity in logos, there doesn't seem to be confusion or deception in case of these "protest products";

2. In the case of Millatfacebook, is the decision of the European Court of Justice in LTJ Diffusion (the ARTHUR ET FELICIE case) relevant?

3. If copyright infringement is alleged, to what extent is Facebook's interface protectable as an artistic work?

4. What about a freedom of speech/satire defence?

5. Can "blasphemous" websites like Facebook lose their IP privileges for breaching public morals ? What about countries with Islamic constitutions which place great importance on public morals?
Wonders Arpan, who also draws the Kats' attention to another 'protest product, Mecca Cola, "Perhaps your readers in Pakistan and other Muslim countries can enlighten us".

Millat here
Millet here and here
Mullet here and here
Mollet here

European patents and patent applications - statistics 2009

The EPO last week published its statistics on patents applied for and granted in 2009. The top ten applicants in 2009 were:

6.LG CORP.1221

You can find the rest of the top 100 applicants here.

The following chart shows the country of residence for the patentee of patents granted in 2009:

The chart shows a clear decline in granted patents from all major applicant countries, namely Germany, Japan and the US (the chart colours of Germany and the UK are almost undistinguishable, but a look in the corresponding table shows that Germany is the top line. Sorry, UK readers). All together, applicants from Germany, the U.S. and Japan received 61% of the patents granted in 2009. South Korea is the only one of the major filing nations that seems to (almost) hold its number of applications. The full chart is here, corresponding table here.

There is also a table on patent applications by technical field and country of origin. Unfortunately, like the rest of the statistics, it's a PDF, which makes the analysis very hard. May I suggest publishing such data as a spreadsheet in the future, allowing further processing?

Update: This graph from the annual report compares number of applications to granted patents, which is quite interesting (clicking on it will lead to a larger version which actually allows you to read the text):

Full speed ahead for fast-track patents

The IPKat notes with approval that the new British coalition government has been quick off the mark, announcing "a new fast-track procedure for approving international patent applications that will cut waiting times by more than a year". According to last Friday's press release,

"The Intellectual Property Office ... today introduced the scheme to help tackle the worldwide backlog of patent applications, which costs the global economy an estimated £7.6 billion a year. The UK is among the first to introduce such a fast-track scheme [repetition of the above sentiment by David Cameron deleted]. Intellectual Property Minister Baroness Wilcox welcomed the announcement. She said: “Innovation is one of the main driving forces for Britain’s economic recovery. Delays in dealing with patent applications prevent firms from expanding and creating new jobs [Evidence?]. ... “The new fast-track procedure will make it quicker for business to turn innovation and ideas into products and jobs.
“Britain is leading the way in identifying and dealing with the patent backlog [This makes up for the country's miserable performance in the Eurovision Song Contest]. I hope other countries will establish similar fast-track schemes to tackle this problem.” [That's magnanimous: a lesser soul might have wished that British competitiveness would be at the expense of its competitors ...]
The new procedure will apply to applications filed under the international Patent Cooperation Treaty (PCT). The UK is one of 142 countries which have signed up to the Treaty. Under the PCT, applications undergo a preliminary assessment of their patentability before being passed to individual nations to consider the details. The Treaty aims to stop work being duplicated when an applicant wants patent protection for the same invention in several countries.

Now businesses and individuals can apply for their application to be dealt with under the PCT (UK) Fast-Track when it has been approved in the international phase. Applicants requesting the fast-track service will receive an examination report within two months. Under current timescales this could take more than 18 months.

The examination report will either approve the application or detail any changes needed before a UK patent can be granted. Any substantial issues will have been addressed in the international phase.

The UK is among the first to introduce a fast–track procedure. It is hoped other countries will establish similar schemes to encourage applicants to make full use of the international phase. This will help deal with the global backlog of patent applications.

The new scheme will work in the same way as the IPO’s existing fast-track procedures, which include the ‘Green Channel’ for inventions with environmental benefits".
The IPKat is acutely aware that the ability to slow-track an application is as useful to applicants as the facility to fast-track them; he is of course pleased that applicants now have a choice. The secret is finding the formula that guides the applicant to take the decision that is right for his specific industrial and commercial needs. Merpel says, I do hope someone is going to compare the economic impact, in terms of investment and employement creation, in markets that offer fast-tracking with those that don't. This looks like a great opportunity for some really useful research.

Fast track here and here
Slow track here

Monday miscellany

Responses to the IPKat's latest poll have been a bit sluggish, what with this being a public holiday weekend in some jurisdictions, but he's pleased to see that at least some of his readers have not allowed their personal pleasures to get in the way of their civic duty to vote. This poll deals with a matter of great importance to those with sensitive ears or weak voices -- the existence and also the volume of background music at IP social events. If you're fed up having to shout over loud music, or pleased you don't have to say anything because you know you won't be able to make yourself heard, this poll is for you! The poll can be found at the top of the IPKat's side bar. At present it's a race between people who want music banned outright and those who are happy to have it after they've done their social and networking things -- but there's still plenty of time for the other options to creep up on them.

Are you based in the European Union? Does your country have a view on the legality of the proposed Unified Patent Litigation System? Do you know or care? Take a quick peek here at PatLit if you want to know more.

One of the IPKat's friends has written to ask him if he can recommend any recent published research that evaluates the effectiveness of multi-tier innovation systems (eg patents plus (i) petty patents, (ii) utility model rights and/or (iii) the gebrauchsmuster. Ideally such studies will offer some sort of comparison with systems that offer no alternative to the patent. If possible they should have some hard data in them, rather than mere speculation. If you can make any recommendation, please post it below or email the IPKat here.

Is there life after death? The IPKat has previously reported on a British copyright infringement ruling that was pretty catastrophic for Usenet site Newzbin (here). Now Torrentfreak reports on that service's planned comeback via Team R Dogs. The plan is to operate a fast-running, shape-shifting model based on The Pirate Bay. The Kats will be watching future developments.

The IPKat thanks the many readers who were kind enough to send him links to the recent spat between retail emporium Harrods ("Anything from a pin to an elephant") and Hollands Cafe Lounge, of Rivenhall, Essex. According to The Daily Mail (a newspaper not normally known for its intellectual property coverage) the Knightsbridge store is alleging infringement of the copyright in its logo (left). The accompanying article however refers to Harrods' request that Hollands also change its name on the basis of its being too similar, which would suggest that there is a trade mark or passing-off basis to the claim. The proprietors of Hollands Cafe, Nigel and Leyla Holland, say it would cost them £14,000 to comply with the demand, which could put them out of business -- and that sort of cash would buy an awful lot of bacon butties.

The UK's Strategic Advisory Board for Intellectual Property Policy (SABIP) may be about to fall on hard times, since many have tipped it for pruning -- or worse -- in the imminent round of public sector austerity cuts. However, its pre-election labours are still bearing fruit.

Right: the economics of digitisation -- child's play, or is it for adults only?

Last Wednesday, while most good Brits were contemplating the prospect of a holiday weekend, SABIP published a report, "The Economics of Copyright and Digitisation: A Report on the Literature and the Need for Further Research", put together by Christian Handke (Erasmus University, Rotterdam, Netherlands). The 1709 Blog will be digesting this opus and indeed opining on it in due course. Meanwhile, you can access the executive summary here (11 pages, inclusive of ample artwork), while the full report can be downloaded here (103 pages). Click here to impart your very own feedback.

Sunday, 30 May 2010

Letter from AmeriKat II - American Needle v NFL (Part 2 of 2)

The Court continued to state that the teams not only competed against each other on the playing field and for the attraction of fans, but they competed in the market for intellectual property:
"To a firm making hats, the Saints and the Colts are two potentially competing suppliers of valuable trademarks. When each NFL team licences its intellectual property, it is not pursing the 'common interests of the whole'league but is instead pursuing interests of each 'cooperation itself'...Decisions by NFL teams to licence their separately owned trademarks collectively and to only one vendor are decisions that 'depriv[e] the marketplace of independent centers of decisionmaking'."
The Court considered the argument advanced by the NFL that they had formed a single entity (the NFLP) and had marketed their NFL brands (picture, left - all 32 teams) through this single outlet for a long time meant that their conduct fell outside section 1. The Court did not find favor with that argument and stated that "an ongoing section 1 violation cannot evade section 1 scrutiny simply by giving the ongoing violation a name and label." Although at times the 32 teams may operate through NFLP, the teams remained "separately controlled, potential competitors with economic interests that are distinct from NFLP's financial well-being." Ouch.....The Court did recognize that professional sports organizations have to necessarily unite and cooperate for advancement of the league, but cooperation is not justification when that cooperation is so concerted as to fall foul of section 1 (page 14 of the decision).

In closing the Court recognized that while the NFL teams share an interest in making the league successful and profitable in areas like scheduling, but that it does not justify "treating them as a single entity for section 1 purposes when it comes to the marketing of the teams' individually owned owned intellectual property." The case is remanded back to the lower court for further proceedings. In light that NFL agreements are capable of violating section 1, the parties will now have to argue that the NFL-Reebok licence agreement itself is or is not an unreasonable restraint of trade.

The ruling is heralded as being great for the NFL's players. How so? Had the NFL won the case they may have been able to justify continuing to act as 'one business entity' in implementing players' and coaches' salaries collectively, rather than the current system of individual bargaining. (picture, right - Brian Urlacher of the NFL's Chicago Bears and of the AmeriKat's home state) Commentators are suggesting that the ruling could initiate the stalled labor extension talks between the National Football League Players Association (NFLPA) and NFL team owners. However, Peter King of Sports Illustrated stated that the decision may not be the champagne-popping moment for the NFLPA. For further interesting sports-centric view on the impact of the decision see this article from ESPN and Huffington Post (here).

By way of interest, the AmeriKat directs readers to compare the position of the NFL with that of the Major League Baseball (MLB) who benefit from a host of anti-trust law exemptions. God bless the American past-time!

The AmeriKat has to mention that reading Justice Stevens's clear, structured, and well-argued decision makes his upcoming retirement even more poignant. He will be much missed.

Letter from AmeriKat I - American Needle v NFL (Part 1 of 2)

This week the AmeriKat has yet again been battling further biblical drama at home. A few weeks ago she was swimming through her flat after a neighbor's pipe burst (flood). This week she is battling a troop of ants that have built a transport highway from her kitchen to the patio (swarm). Ants are not particularly fun for Kats to play with - they are too tiny and have a habit of becoming stuck in one's paw pads. (picture, left - the AmeriKat watching the Ants Marching in) Despite her distaste for ants inside the home, she still has respect for the tiny creatures in nature. Ants organize themselves in complex social structures each equipped with a predetermined role to help maintain the colony. Although a colony may be comprised of a plurality of thousands of ants, they only operate together as one entity - the colony. (Note - this post is split into two parts)

American Needle (9) - NFL (0) - Full Time

A plurality of teams that have been held by the Supreme Court as not operating as one entity is the National Football League (NFL) in this week's decision in American Needle v NFL (see previous reports here). Delivering the unanimous majority opinion the soon-to-be retiree, Justice Stevens, declared that despite common interests that ran through the NFL brand, the teams are "still separate, profit-maximizing entities, and their interests in licensing team trade marks are not necessarily aligned."

The NFL is an unincorporated association that includes 32 separately owned professional football teams, such as the Denver Broncos or Seattle Seahawks, each with their own team logo, colors, mascot and other IP. Prior to the formation of National Football League Properties (NFLP) in 1963, the teams entered into their own separate IP licences for team merchandise. After 1963, NFLP developed, licensed and marketed the teams IP itself. Up until 2000, NFLP granted non-exclusive licences to a number of companies to permit them to manufacture and sell apparel with NFL team logos, including to American Needle. However, in December 2000, the teams authorized NFLP to grant an exclusive licence to Reebok International for the right to manufacture and sell trade mark head wear for all 32 NFL teams for 10 years.

The previous non-exclusive licences were therefore not renewed prompting American Needle to file their claim in Illinois federal court alleging that NFLP violated sections 1 and 2 of the Sherman Act. The NFLP said that their actions fell outside these sections as they were a "single economic enterprise" and therefore fell foul of the plurality requirement. The Illinois District Court then granted summary judgment in favor of the NFL holding that that all 32 teams were a single entity because their operations were so integrated, more so than "joint ventures cooperating for a common purpose." The Court of Appeals for the Seventh Circuit affirmed the lower court's decision declaring that "NFL teams share a vital economic interest in collective promoting NFL football...[i]t thus follows that only one source of economic power controls the promotion of NFL football." American Needle then filed their writ of certiorari which was granted by the Supreme Court last year.

The question the Supreme Court had to decide was this: Whether the alleged activity by the NFL "must be viewed as that of a single enterprise for purposes of section 1 of the Sherman Act." Section 1 provides that
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.
Section 1 only applies to concerted action that restrains trade. Section 2 apples to both concerted and independent action if that action monopolizes or threatens to monopolize trade. Section 1 behavior is treated more strictly because concerted behavior, without independent action, is more at risk of being anti-competitive. Justice Stevens reiterated that in considering whether conduct is concerted the Court is not merely concerned with whether the parties are formally legally distinct entities, but instead examine the functions of how the parties operate- the "substance over form" distinction.(Copperweld Corp v Independence Tube Corp (1984)). The question therefore is whether there is a "contract, combination.., or conspiracy" amongst "separate economic actors pursuing separate economic interests" such that the agreement "deprives the market place of independent centers of decision-making and therefore of "diversity of entrepreneurial interests" and potential and actual competition.

Applying this criteria the Supreme Court held that
"The NFL teams do not possess either the unitary decisionmaking quality of the single aggregation of economic power characteristic of independent action. Each of the teams is a substantial, independently owned, and independently managed business. '[T]heir general corporate actions are guided or determined' by 'separate corporate consciousnesses' and '[t]heir objectives are' not 'common'" (Copperweld; North American Soccer League v NFL (1982))
........continued in Part II..........

Friday, 28 May 2010

Friday fantasies

Some bleary-eyed Kats and their friends are now sleeping off the worst effects of the INTA Meeting in Boston, but they could not in all conscience curl up in their baskets without first remembering to remind their readers to check out the Forthcoming Events slot on the IPKat's front page ... and to all readers who are about to celebrate a public holiday this week the IPKat says "Have a great time!"

Baroness (Judith) Wilcox has joined the United Kingdom's new government as Parliamentary Secretary for Business, Innovation and Skills -- which means that she will find herself having to deal with IP. Good news is that Baroness J has at least some things in her CV to suggest she may have some clue as to what the subject is about: she chaired the National Consumer Council for six years and has a business background. Like all Kats she enjoys bird-watching. We wish her good luck.

Just out. The June 2010 issue of the Journal of Intellectual Property Law & Practice has just been published (click here for the JIPLP website, where you can access its contents, and herefor its weblog). Making its debut at the INTA Meeting in Boston was the inaugural issue ofIntellectual Property Magazine, the consolidated successor to Trademark World, Patent Worldand Copyright World; click here for further details. Issue 2/10 of Sweet & Maxwell's International Sports Law Review carries a good analysis by Craig Callery of the confidentiality and sponsorship concerns raised when sports celebrities (in this case former England soccer captain John Terry, left) fail to prevent disclosure of intimate and detrimental personal details (the analysis started life as a blog post which you can read here). Another Sweet & Maxwell title, the European Intellectual Property Review (EIPR) has also brought out its June issue, which leads with Christophe Geiger's speculation as to whether the Treaty of Lisbon has ushered in a New European Legal Order for intellectual property.

Some amusement and even a little provocation can be derived from pursuing this link to the Raven King's music-and-verse production "Copyright; SecondLife & YouTube" (thank you, Celestial Elf, for letting us know). The Raven King's lyrics begin as follows:
"So many here have spoken of their terror and dismay,
Over copyright useage at your You Tube today,
Over the Terms and Conditions with which they may,
Make, share and render the adventures that they,
Have thought, seen and constructed in Our Second Life far away".

Around the blogs. Congratulations to The SPC Blog, which has now attracted no fewer than800 email subscribers to its highly specialised output on patent term extensions. Also, a pat on the back for The Trademark Review Blog, where Adam Smith has been so swiftly off the mark with news that European trade marks which have undergone examination based only on absolute grounds of refusal will be welcomed into the Trademark Clearinghouse, proposed by ICANN for the new generic top-level domain (gTLD) space. The Smart E-Discovery Blogfrom Millnet, as its name suggests, looks as though it has some useful content for many IPKat readers.

Free speech versus trade mark rights at the Swiss Indoors

Trade mark parody cases always draw a lot of interest - maybe more than justified by their commercial (in)significance, but the boundaries of free speech imposed by trade mark law and unfair competition law are a fascinating topic.

An interesting case has just been published in Switzerland: A non-profit organisation put up an anti-tobacco site under the domain, criticizing the sponsorship of a sports tournament by a tobacco brand ("using tennis to sell death"). The website features a parody of the official Davidoff Swiss Indoors logo that requires a close look to distinguish it from the original (see right).

Davidoff was not amused and obtained an ex parte injunction against the further distribution of the website. Game one for Davidoff, so to speak.

It was a short lived triumph, however, because after the hearing, the injunction was lifted. Davidoff had based its complaint on both trade mark law and unfair competition law (a copy of the complaint is here [in German]), but did not really stress the trade mark claim. Since under Swiss law the trade mark owner can only enjoin the commercial use of the mark, and the website did not offer anything for sale, this is understandable. Davidoff's main argument was that the use of the modified logo was "needlessly disparaging" ("unnötig herabsetzend") in the sense of Federal Act against Unfair Competition. The Act applied whenever a behaviour had an influence on the market, it did not require a competitive relationship between petitioner and respondent.

The Civil Court of Basle agreed that the Act against Unfair Competition was applicable, but saw no violation (likelihood of confusion was not specifically addressed; I assume the court did not see any). It was permissible to provoke in an attempt to change the public perception of a criticized behaviour. Since the brand owner used emotionally charged images in his communication, so could the critics. Exaggeration and distortion was not against the law as long as it did not suggest a non-existing relationship; here, the relationship between tobacco and death was given. The court distinguished the case from an older case decided by the Austrian High Court (13 Sept 1988, 4Ob48/88). The Austrian High Court had found it unfair that tobacco critics had singled out a single brand ("Only a camel would go a mile for a cigarette") to target their criticism of tobacco in general, which applied to any cigarette brand. Here, however, the respondent specifically criticized the sponsoring of a sports tournament by a tobacco brand, and only the petitioner is sponsoring the tennis tournament.

First set 6:1 to the respondent. Davidoff could have continued the match but chose, probably wisely so, not to file suit in ordinary proceedings on the merit. One could say it retired

(Full text of the reasons only available behind a pay wall; the abstract is here [German/French]).

Thursday, 27 May 2010

Brands and INTA: Going Where No Annual Meeting Has Gone Before?

This Kat just finished nearly a week in 24/7-like mode in connection with the INTA annual meeting in Boston (on which, see this week's postings, passim). Upon reflection, the event that most sticks out in my memory actually took place before the conference began, in the context of a visit to one of the prominent business schools that adorn the Boston landscape. What that visit did was renew the question that lurks behind much of what the organization: ss there any necessary connection between INTA as a trademark organization and the issue of brands and branding?

The question arose, almost by accident, during a meeting with a young faculty member at the business school. The purpose of the meeting was to discuss her research on branding issues connected to the luxury goods business. No secluded ivory tower academic, this faculty member had worked in the branding department of a major luxury brands company before joining the faculty. The combination was particularly intriguing for me.

And I was not disappointed. For over 45 minutes, I listened to an exposition on luxury brands, brand image, brand experience, all set against the backdrop of customer psychology and the broader socio-psychological context. No field within the social sciences was neglected, with equal amounts of psychology, sociology and anthropology laced within the analysis, and even a bit of economics was considered. The scope of the research and the reach of the analysis were genuinely impressive.

No area, seemingly, had been neglected in the analysis, save one--trademarks. Except for a cursory mention of trademarks as enabling the product to be easily identified, the scholar had simply made no reference to trademarks. When I attempted to ask a pointed question about how trademarks fit into the analysis, I was given short and laconic response, to the effect that "of course the brand owner needed to make sure that no one was "trespassing" on its mark." That having been said, the discussion reverted immediately back to the "real" branding issues that so occupied this genuinely impressive young scholar.

I should have not been surprised by this state of affairs. After all, wasn't it less than a year ago that I had given a talk on brand valuation and had innocently asked a member of the trademark department of a leading entertainment company the nature of the involvement of her department in connection with brand valuation activities by her company. The answer was simple and short: "We are never involved in brand valuation." If the people involved in brand valuation are separate and distinct from those who register and protect trademarks, why should I have been surprised that trademarks play almost no role within the context of world class research on branding. Trademarks and branding appear to be two distinct worlds.

However, this separation between trademarks and branding is less clearly evident within the INTA context. There, the corporate members of the organization are usually referred to as "brand owners", rather than what I would have more naturally expected, namely "trademark owners." This is conceptually odd. After all, within the INTA context, set against these brand owners are myself and thousands more like me, namely, "the lawyers", who typically don't interact with the brand manager but rather with the trademark department of the company. While I don't have any hard data, I suspect that company delegates at INTA come from the trademark rather than the brand management, department.

This is not surprising. Brand analysis focuses on the overall identity of the company, taking into consideration its stakeholders, including shareholders, accountants, investors and customers. Brands may enjoy IP protection, including trademarks, but this also involves other forms of legal protection. In such a world, the contribution by the trademark profession by its very nature will be circumscribed.

Don't get me wrong. I find the world of brands and brand analysis most interesting, even if I sometimes come away with a feeling of maddening uncertainty about what it all means. The question is--what role should brands play within an organization like INTA? After all, even if some trademark owners are also franchisors, franchising has its own organizations. No one really comes to INTA to be educated on the ins and outs of franchise law and practice. How INTA can contribute to a better understanding of branding, and how it can better connect branding with its largely legal clientele, still require a lot more work by the organization. If it does so, we all stand to benefit, but it will be a daunting challenge.

INTA day 3

Here's the third and final report of the IPKat on this year's International Trademark Association (INTA) Meeting, held this year in the Boston Convention and Exhibition Center, Massachusetts (click here and here for the two earlier reports).

The main event of the IPKat's day was the Africa Crammer session, in which round-ups from South Africa (highly topical, in view of this summer's ambush marketing competition which was fortuitously scheduled to clash with FIFA's World Cup), the increasingly interesting East African zone of Kenya, Uganda and Tanzania, as well as the under-utilised regional trade mark grant organisations ARIPO (under the Banjul Protocol) and OAPI (under the Bangui Accord).

Right: Africa, according to Adams & Adams. The ARIPO bits are in orange. The OAPI bits surround Ghana, the larger orange bit on the left.

Moderating the session, the Kat was pleased to count twice as many 'attendees' this year as there were in 2009, perhaps even three times as many if all the people who came in for part of the session were there at the same time. There were some lively moments too, particularly when the interesting question was raised as to whether clients existed for the benefit of trade mark practitioners -- and whether both existed for the benefit of trade mark offices. We all look forward to more of the same next year.

After the Africa session the Kat bolted back to the Exhibit Hall to chat to some of the exhibitors (publishers, search companies, renewal agencies, institutions, inter alia) about their impressions of the event. All were agreed that, despite the frustrating durability of the recession, people's attitudes were more buoyant this year than last. Business was picking up in many sectors, though it was felt that some of this year's IP firms would not survive to attend INTA's 133rd Annual Meeting in San Francisco.

Several people reported -- and the IPKat can corroborate this -- that they had been approached for employment opportunities by Meeting participants who were out of work, in the process of leaving their positions or who had been reduced from regular employment to casual work for their previous firms or companies as independent consultants. No-one was looking to recruit, however. This is depressing news not just for those who have come apart from their jobs but also for aspiring new entrants into the IP professions. INTA can't be expected to create jobs out of nothing, of course, but its events are certainly being used as a recruitment catalyst this year.

After the close of the formal events, nothing was left but the INTA Final Night Event, held at the instructive and enjoyable Museum of Science. To the IPKat's disappointment, he was unable to converse effectively with his fellow diners over the pervasive beat of the intrusive and over-loud music. Determined to do something about this, the Kat is running a poll (you can find it at the top of the weblog's side bar) since he is confident that he speaks for the silenced majority on this matter.

Now for a long-deferred sleep and the long trek back.

Wednesday, 26 May 2010

No scampi for Alicante

The IPKat has learned of the appointment by the Council of the European Union of António Campinos as the next President of the Office for Harmonisation in the Internal Market (OHIM). His appointment will run for five years, his expected commencement date being 1 October, following the end of the term of the incumbent, Wubbo de Boer.

The IPKat congratulates Mr Campinos on his appointment and wishes him luck. Merpel, in whimsical mood, adds that, for those who think that life in Alicante's citadel of trade mark and design administration is no more than a pleasant blend of sea food, sun and sailing, the appointment of Mr Campinos may be a disappointment -- the letters of his surname, with a little gentle rearrangement, spell out the firm message to the entire Community trade mark and design fraternity: "No scampi".

James Nurton's profile interview with Mr Campinos here
If you prefer scampi, click here

INTA day 2

The IPKat's day began at the Boston office of Fish & Richardson, where a veritable army of concerned practitioners gathered for breakfast and, more importantly, a chance to discuss latest developments regarding the Madrid Protocol -- the sophisticated and civilised alternative to filing a separate application in each country for which a trade mark registration is required, but a poor alternative to the ideal system which the Madrid Protocol LinkedIn group's coordinator Alfred Strahlberg has in mind.

Right: there were lots of stress-reliever fish on the table for this meeting, but no stress-relieving richardsons ...

The session focused mainly on two things: the progress (or lack of it) in various countries which have Protocol accession in their sites, and the failure of the system to operate in the way it should. This system failure can be attributed to several factors, including administrative failures by national trade mark authorities and WIPO, the absence of adequate rules relating to time limits, anomalies and illogicalities in the system itself and a sentimental attachment to communication by fax in an era in which instant and accurate electronic communication is quicker, cheaper and more reliable. The Kat thinks this is a great group and -- though its ranks are now burgeoning -- he can't understand why it doesn't have far more members. If you want to know more about this group, email Alfred here and tell him the IPKat sent you.

Following this meeting the Kat took a brisk stroll down to the Boston Convention and Exhibition Center (BCEC), which would also have been a fairly short stroll but for the fact that the BCEC is not intended to be approached on foot. It was with four sore paws and some guidance from fellow academic Professor David Berry that he finally reached his destination and the innocent pleasures of the air-conditioning. Once cooled down, the Kat spent some hours engaged in networking of the non-electronic variety, reviving old acquaintanceships and making new ones. Chatting to some of his German colleagues, he was again impressed by the wonderful way in which the German language creates long and compound nouns such as Freihaltebedurfnis, which roll so majestically off the tongue and make their speaker sound so knowledgeable. He also idly wondered if the Germans had a word for that feeling of anxiety experienced by non-US users of US hotel lavatory cubicles on seeing that the gap between the door and its frame is wide enough to see through.

On the subject of the Germans, the Kat was delighted to encounter his friend, scholar and lawyer Paul Lange (Siebeke Lange Wilbert), general editor of the Internationales Handbuch des Marken- und Kennseichenrechts (here). Paul was excitedly waving, hot off the press, a copy of the newly-published English version, International Trade Mark and Signs Protection: a Handbook, a venture in which Paul had toiled for several years. The IPKat was delighted to share Paul's excitement since he too had contributed a paw or two, and indeed some weeks of his life. Details of this book, published in Germany by C. H. Beck and in the UK by Hart Publishing, can be found here [nb This work will be reviewed on this weblog in greater detail by an impartial non-Kat; it will also be the prize for a forthcoming competition].

Following a further bout of networking, the IPKat came to the conclusion that INTA should set up a mutual support group for people who are currently writing doctoral theses or masters dissertations on aspects of the protection of well-known and famous trade marks (he has encountered several in the past couple of days, and knows of more). This would be a great forum for the numerous INTA participants who suffer from this condition -- which is serious if untreated but not apparently fatal -- to discuss their various experiences and compare cures.

The Synthia Saga: CIPA fights back

The Chartered Institute of Patent Attorneys (CIPA) in the United Kingdom has already issued a response to the Professor Sulston's rant over the patentability (or otherwise) of Craig Venter's Synthia synthetic life form.

Right (but not on this issue ...): Professor Sulston

Says the CIPA press release:
"Sir John Sulston slams Craig Venter’s ‘excessively broad’ patent applications at Royal Society event

Sir John Sulston, who won a Nobel Prize for his research into genetics, slammed Dr Craig Venter’s application to patent the ‘first synthetic life form’ as part of his wide-ranging critique of the patent system in a discussion at the Royal Society on 24 May.
The event ... brought together four authoritative figures from the worlds of science and intellectual property to discuss the question ‘Who owns science?’ ...
Professor Sulston drew on material used in the Manchester Manifesto, published in 2009, to call for the patent system to be reformed and for governments and society to find alternative models for rewarding scientific research. He also specifically criticised Dr Craig Venter for applying for patents on the artificially created organism, nicknamed Synthia. "I hope very much these patents won't be accepted because they would bring genetic engineering under the control of the J Craig Venter Institute (JCVI),” he said. “They would have a monopoly on a whole range of techniques."

Patent attorney Dr Gordon Wright ... commented on Dr Venter’s application to patent ‘synthetic life’. “Craig Venter’s patent applications are at an early stage of examination,” Gordon Wright said. “They have a long way to go before any patents will be granted. Examination by US examiners has already indicated that the claimed inventions are too broadly defined. In Europe, the breadth of both applications has already been limited by the European Patent Office. Both the US and EPO examination processes can be easily monitored by the public. Anyone can make comments to the EPO on the patentability of the applications, which have to be passed on to the applicant. There is every likelihood that the applications will be significantly restricted in scope before grant".
Says the IPKat, it's good to see a swift and reassuring response from CIPA -- but this is just the start. It is hoped that other responsible pro-patent organisations will pick up the issue and add their support to CIPA and not just hide behind that body's apron-strings. Says Merpel, the UK Intellectual Property Office's Current News page has nothing more recent than July 2009. A comment on this issue would be a great way of kick-starting this service

Other reports: The Great Beyond, Scope

Tuesday, 25 May 2010

John, Craig and Synthia

You just can't keep everyone happy when it comes to patents, it seems. The criticisms of the system for protecting life forms have long been known and articulated, and these have led to checks and balances in the patent system which are intended to preserve the public interest and to take account of moral sensitivities (for example click here for Directive 98/44 on the legal protection of biotechnological inventions, the so-called Biopatent Directive, in the European Union).

Right: "If the Patent Office won't have her, we'll have to carry her all the way back to the staff canteen ..."

Now well-known patent critic Professor John Sulston is anxious that the patent system should not confer protection on the investment of those whose inventions consist not of real life forms but of synthetic ones. According to the BBC,
"A top UK scientist who helped sequence the human genome has said efforts to patent the first synthetic life form would give its creator a monopoly on a range of genetic engineering. Professor John Sulston said it would inhibit important research. US-based Dr Craig Venter led the artificial life form research, details of which were published last week.

Prof Sulston and Dr Venter clashed over intellectual property when they raced to sequence the genome in 2000. ...

Now the old rivals are at odds again over Dr Venter's efforts to apply for patents on the artificially created organism, nicknamed Synthia [on which see Gena Mason's post on PatLit here]. The team outlined the remarkable advance last week in the prestigious journal Science.

But Professor Sulston, who is based at the University of Manchester, said patenting would be "extremely damaging".

"I've read through some of these patents and the claims are very, very broad indeed," Professor Sulston told BBC News. [The broader the claim, the greater the risk of it being overbroad, at least in Europe]

"I hope very much these patents won't be accepted because they would bring genetic engineering under the control of the J Craig Venter Institute (JCVI). They would have a monopoly on a whole range of techniques."

A spokesman for Dr Venter, of the J Craig Venter Institute (JCVI) in Maryland and California, said: "There are a number of companies working in the synthetic genomic/biology space and also many academic labs.

"Most if not all of these have likely filed some degree of patent protection on a variety of aspects of their work so it would seem unlikely that any one group, academic centre or company would be able to hold a 'monopoly' on anything.

"As the JCVI team and Dr Venter have said, open dialogue and discussion on all issues surrounding synthetic genomics/biology, including intellectual property, is very necessary for this field so these questions and discussions are all very important."

... Professor Sulston made the comments at the Royal Society in London where he was discussing a report entitled Who owns Science? The report was produced by the Institute of Science, Ethics and Innovation at Manchester University, which the professor chairs. [On 'Who owns science' and Professor Sulston's contribution to the debate see earlier IPKat post here]

The study details an increased use of patents by researchers [But that's good news, isn't it?].

"My objections to patenting human genes or genes from existing living organisms is that they are inventions or discoveries," said Professor Sulston. ... He believes that the over-use of patents is inhibiting research that could otherwise greatly benefit society, such as better healthcare for the poor. [Patents inhibit research? This is a belief, it seems. Where's the data?]

Professor Sulston commented: "[It's fashionable to think] that it's important to have strong intellectual property and that it's essential for promoting innovation. But there's no evidence that it does promote innovation. There's an unwillingness to consider any problems." [the suggestion that this is some sort of fashion or fad is insulting to the many people who have toiled to produce data to prove or disprove links between the availability of patents, the creation of innovations and the investment that takes them from laboratory to marketplace]

But he also believes that these arguments are now beginning to be accepted.

Last November, a US company, Myriad Genetics, lost parts of its patent rights on two breast cancer genes following a legal challenge by civil rights groups [This makes it looks as though the ruling was on a civil rights issue -- the Kat thought it was a matter of patent law: see eg here]".
The IPKat wonders what his readers think about Professor Sulston's comments.

INTA day 1

The IPKat's Monday activities at INTA commenced with registration at 7.30am, followed by the rituals of collecting the attendee goody bag and the securing of as many ribbons as possible to wear on his name badge. Next came a foray into the hospitality area, where he spent a pleasant hour discussing the world and all its wonders with breakfast companions from Germany, Canada and the United States. For many people, networking is synonymous with evening activities such as fancy receptions and dinner parties -- but it's surprising how many people are quite conscious and articulate in the early hours of the morning.

The opening ceremony was next on the IPKat's agenda. Alan C. Drewsen (INTA Executive Director) gave some facts and figures: some 8,300 registrants were in Boston for this year's Meeting, a far cry from the organisation's earlier visits to Boston in 1987 and 1998, where the number of registrants was very much smaller. Now INTA has over 5,600 corporate and other members drawn from 190 countries, many of whom provide the fire-power needed for keeping INTA active and relevant in an ever-changing world -- around 2,500 volunteers sit on the organisation's myriad committees and subcommittees.

This year's President, Heather Steinmeyer (WellPoint Inc), set the tone for this year's Meeting by delivering a speech which was generally far more serious in tone than those of many of her predecessors in recent years. The dangers and challenges facing the trade mark and branding community were set out firmly, as was INTA's determination to address them. She also warned that progress towards the conclusion of the Anti Counterfeiting Trade Agreement (ACTA) should be accelerated by focusing it on trade mark and copyright infringement alone, jettisoning other IP rights. This position was implicitly contradicted by the extrovert keynote speaker Peter Guber (Mandalay Entertainment), whose comments led this Kat to conclude thathis position was that, since all rights owners were threatened by infringement, it was better to stick together in facing the enemy.

Next stop for theIPKat was the Trademark Scholarship Symposium, in which he joined in the discussions of two pieces of work in progress. In the course of these discussions, the question arose as to whether IP rights in trade dress would enhance or inhibit greater competition. It was observed that, in the US, where the fashion industry receives very little IP protection, the industry is vibrant and creative. Curiously in Europe -- where the fashion industry has layers of protection through registered and unregistered Community design rights, registered and unregistered national design rights, unfair competition and/or passing off -- the industry is also vibrant and creative. Does this mean that IP rights are competition-neutral in that sector, or that the factors that generate creativity in the fashion sector are not affected by the extent of IP rights?

Following the symposium it was time to visit the Exhibit Hall, where the IPKat remained for most of the rest of the day. Apart from the exhibitors themselves, the Kat found many friends old and new with whom he shared his thoughts and ideas. Once the Exhibit Hall closed, the round of receptions commenced, culminating with the Meet the Bloggers gathering in the cosy anonymity of Lucky's Lounge. By this stage the Kat, reeling from jetlag and hoarse from the effort of making himself heard, was really struggling and could do little more than smile at his colleagues on the blogosphere and hope they'd forgive him. He did however have enough energy to make a note of two IP blogs that were previously unknown to him: German attorney Dr Volker Metzler's Visae Patentes (with an archive going back to January 2010) and the Spanish-language Registros de Marcos, from Rafael Gimenez from Mexico.

And so to bed ...


Here's the fourth and final contribution in a series of four short pieces by the IPKat's friend Keith Braithwaite (read the prologues to pieces one, two and three for the background) on the delicate balance between proprietary and open source models for the development and adoption of computer software.



Last time we looked at the impact on users of removing a low-level technology from an operating system. This time we examine the claim, sometimes made by advocates of Free and Open Source software (FOSS), that so little progress has been made in recent decades by proprietary development that there is nothing to be lost by avoiding patented technology.

Proprietary technology is a source of advances

The irony is that many FOSS software products are intended as alternatives to established commercial products. OpenOffice is intended to be an alternative to the Microsoft Office suite and other commercial productivity tools. The GIMP is intended to be an alternative to Adobe Photoshop and Inkscape to Adobe Illustrator. These programs are clearly inspired by the commercial products they might be used to replace. One could argue that the spreadsheet application within OpenOffice has inherited all the innovation that has been applied to spreadsheets since VisiCalc in 1979, Lotus 1-2-3 in 1983 and Microsoft Excel in 1985. Each had a history of innovation and enhancement; all were developed as closed-source programs by corporations. Several FOSS spreadsheets exist, though none is as feature-rich as the commercial closed-source tools they ape.

So much for user applications. The previous articles in this series looked at operating system features. Some in the FOSS community hold that, since there have been no significant innovations in operating systems since the late 1960s, proprietary operating system offerings present no advantage.

It is surprising how many of the features that we now take for granted in a modern operating system were available on machines predating, say, the 1970s. So-called “time-sharing”, the use of one computer to run multiple programs for multiple users, was developed in the 1950s and became available in commercial products in the mid 1960s. For the user (at least, a very small group of privileged users), systems with a mouse and an interactive graphical user interface were available in 1968. It can look as if all the features of a modern operating system were available, although perhaps not all on the same system at the same time, by 1970.

1970 is a key year because the development of Unix at AT&T began in 1969 and the product was released in 1971. Unix is the indirect ancestor of both commercial operating systems such as Solaris and Mac OS and the free Linux distributions. Although Linux does not share any code with the original, proprietary, Unix operating system it does aim to be conformant with the various standards that define a “Unix-like” operating system. If it were really true that there has been little innovation in recent decades we might expect, then, that contemporary OS’s, including Linux, would not have any major features not in Unix. Is this true?

Not really. Here’s some detail on three examples of innovation appearing in modern systems. Since it is true that a many of the OS features familiar to users were developed a while ago these newer features can be quite technical.

Pre-emptable Kernel code

Modern operating systems are typically separated into a “kernel” which manages the hardware resources of the machine and “userland” where other services and applications live. Applications access the disk drive, network and other system resources by executing code in the kernel. The actual hardware involved is controlled by a piece of code called a “driver”. In earlier systems the kernel code might itself choose to defer a request in order to service one with higher priority, but there was no way to make the kernel preempt a request once it was started. This approach leads to latency problems, where a request that is actually very quick to service (such as pulling some data from the network) seems to a take a relatively long time to complete because the network driver has to wait for another task running in the kernel to complete.

To avoid this problem the kernel can be made preemptible. In a preemptible kernel a request can be overridden. In our example when data arrives from the network the driver interrupts another request currently running in the kernel and moves that data into memory or on to disk, at which point the first task resumes. This greatly reduces the latency of activities, like network access, where the computer needs to respond to an event that will happen at some unknown time in the future but that can be dealt with very quickly.

Microsoft Windows NT was released in the mid 1990s with a preemptive kernel, a feature inherited by its descendants, XP, Vista and 7. Linux has featured a preemptive kernel since version 6.2 which was released in 2003


Disk drives are marvels of engineering, but are not perfect. They can suffer mechanical or electrical failures and data can be corrupted or lost. Since reading and writing to a disk involves physically moving a read head from one location over the disk to another there can also be delays in retrieving data. One approach to this problem is to build higher quality disks. This is expensive and offers diminishing returns. In 1987 an alternative was introduced, the Redundant Array of Inexpensive Disks, or “RAID”.

In a RAID system data is recorded twice, so that if a single copy has a fault the data is not lost: this is called “mirroring”. Data can also be “striped” across multiple disks, with the different parts of the data on different disks, so that reading successive parts of the data does not need any one disk to make many movements of the head.I Instead, data is simply read form the disk with the next stripe. Striping and mirroring are combined in various ways to give different combinations of speed and safety. Some RAID systems also include additional measures identify and correct corrupted data.

Working with a RAID array is much more complicated that working with a single disk. While there are hardware-based solutions, where a “RAID controller” manages the disks in the RAID array, modern operating systems can manage RAID themselves.


We saw before that the operating system kernel is responsible for managing system resources via drivers which talk to network connections, disk drives, graphics cards and other components.
The Linux kernel is a very traditional design and uses the so-called “monolithic” approach, where the drivers and other kernel components are all hidden behind a single interface. Facilities such as the file system that we discussed in the first article can vary by loading different drivers, but this is hidden from userland applications. Having a monolithic kernel has been a popular design choice since the 1960s and was used in the Microsoft Windows 95 family of operating systems. In the 1980s an alternative “microkernel” architecture was developed in which the kernel itself is pared down to the very barest minimum and facilities such as the file system are implemented as userland programs which user applications talk to (perhaps via the kernel, perhaps directly). This has the potential to make the operating system much more reliable. With a monolithic kernel a badly written driver or some other problem can crash the entire OS. With a microkernel the driver would crash and need to be restarted but the kernel itself and the other programs providing operating system services would continue.

At first this technology had very poor performance, but intensive research overcame that problem and microkernel architectures have been used in mobile telephone handsets.
Between the two extremes is the “hybrid kernel” approach, in which some operating system services are provided by the kernel itself and some by userland processes. Both MacOSX and Windows NT- derived OSs use this kind of approach.

Other features

Some of the operating system features discussed in previous articles also pass the “1970” test. For example, the power management features mentioned in the first article and the zero-copy IO mentioned in the previous article arose in the 1990s


It is true that a surprising amount of the computing experience we take for granted today was available to someone forty or fifty years ago. As hardware has become more capable, technology choices that were once only available on gigantic research systems are available to all. We can now buy netbook class machines for a couple of hundred pounds that provide the same kind of environment that Doug Englebart demonstrated to an amazed audience in 1968. This can lead to the erroneous conclusion that all the interesting work has been done, but this is not the case. Innovation continues, although often in ways that enhance the computer user's experience: it’s faster, smoother, more responsive, more reliable, without necessarily presenting a big new feature.

Series Summary

We’ve seen that, when a technology vendor decides to use a patented technology without taking a licence, it can be putting at risk features that users can come to rely upon. If the technology supporting these features has to be removed, or a less capable replacement used, the functionality of a device or system can be degraded. This applies to domestic end users and corporate IT departments. We’ve also seen that choosing not to use a technology because it is patented, either to avoid a licence fee or on principle, can rob users of the opportunity to take advantage of valuable advances. Some who advocate avoiding proprietary technology claim that little real progress has been made in some fundamental technology areas for so long that patented technologies do not in fact represent progress. We’ve seen that this is not the case.
The arguments around software patents are complex and show no sign of resolving themselves soon. Increasingly often, the courts have to intervene to assist the legally recognised owners of technology defend their property rights. The opponents of software patents are increasingly bold in both their argument against the principle and their willingness to test the practice of intellectual property in software.

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