Apple is facing another iPhone lawsuit, this time focusing on the screen rendering technology Apple uses in the iPhone and iPod touch.
So we come to trademark. I deal with this on pp. 58-59 of Against Intellectual Property, and also in some detail in Reply to Van Dun: Non-Aggression and Title Transfer (esp. pp. 59-63). In my view, the new-fangled extensions of trademark law--rights against "trademark dilution" and cybersquatting, etc.--are obviously invalid. Further, federal trademark law is problematic since it is not authorized in the Constitution (copyright and patent are, but not trademark; trademark relies on the Interstate Commerce Clause, and thus the federal trademark law only covers trademark connected to interstate commerce, and does not preempt state law, so that state trademark law still governs many intra-state situations).
But even if federal trademark law were abolished, as well as modern extensions such as rights against trademark dilution, even common law trademark is problematic, for three primary reasons. First, it is enforced by the state, which gets everything wrong. Second (see First), the test of "consumer confusion" is usually applied ridiculously, treating consumers like indiscriminating idiots. Third, and worst of all, the right at issue is the right of the defrauded consumer, not the competitor. Trademark law ought to be reformed by abolishing the right of trademark "owners" to sue "infringers" (except perhaps as proxy for customers, when consent can be presumed or proved), and treating this as a case of the customer's right to sue a vendor who defrauds him as to the nature of the good purchased.
The speed of the global economic collapse is provoking a widespread — many would say belated — realisation that many of the beliefs underlying economic expansion over the past 20 years need close questioning, particularly those involving the relationship between the state and the market.
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[T]he act has led to a flood of ‘upstream’ patents on basic scientific knowledge, leading to what some commentators describe as a virtually impenetrable ‘patent thicket’ blocking small-scale inventors from marketing their products. For example, restrictive software patents limit further development and commercialisation in the field of information technology.
India Fights Patents with Huge Prior Art Database
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This is a huge, multilingual resource – something that could only be put together with governmental support and resources. It is also fairly specific to the domain of traditional knowledge. Nonetheless, it's a great example of how an extensive prior art database can be created and then made readily available to the patent authorities in order to help prevent patents being granted unjustifiably. It's a pity that we are unlikely to see anything quite like it for other knowledge domains.
And the concerns can go much further. In James Boyle's The Public Domain, he spends the second half of chapter 7 quite worried about efforts to lock up the basic building blocks of synthetic biology. As he notes, synthetic biology is quite similar in many ways to software -- and locking it up with patents would have the same disastrous implications as software patents currently do. Luckily, the early days of software did not involve patents, but the same cannot be said for synthetic biology.
It would be as if, right at the beginning of the computer age, we had issued patents over formal logic in software -- not over a particular computer design, but over the idea of a computer or a binary circuit itself.
GlaxoSmithKline Plc's (GSK.L) chief executive urged creation of a voluntary patent pool to spark development of new treatments for neglected diseases in the world's poorest countries.
Glaxo CEO Andrew Witty said on Friday his company would contribute its own patents for technologies that might aid research into malaria, cholera and more than a dozen other diseases.
I can certainly understand why they might be upset from a traditional angle, but it seems fairly ridiculous that you can tell people how they can and cannot dance.
When the settlement between Google and authors and publishers, over Google's book scanning project, was announced, many saw it as a big victory for everyone -- as it allowed Google to continue moving forward with plans to scan books, while also creating a "business model" for authors and publishers. However, some of us were very troubled by the implications of the settlement.
Software Patents and Open-Source
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Does our current system of patents, especially software patents, "promote the progress of science and the useful arts?" The answer is obvious. It does not. Is it obvious enough for the Supreme Court to go against the wishes of the "intellectual property nomenklatura" of this country, with their fictitious billions of dollars on their balance sheets? Maybe. We'll see. Another interesting question is this. On the day after all those patents are invalidated, what will the stock market do? It will be interesting to see....
Many big tech companies, including Cisco Systems, Hewlett-Packard and others represented by the Coalition for Patent Fairness, are pushing hard for patent reform, citing the rising costs of IP claims against them. The threats and suits often come from companies that exist solely to license sometimes questionable patents, the companies say.
It’s symptomatic of an oversized industry, but also of an inefficient one. “There are some who would stick the moniker ‘troll’ on Acacia. They don’t invent anything. They just buy patents and enforce them,” says Mark Webbink, a visiting professor at New York Law School and Director of the Center for Patent Innovations, an organization partnering with the US Patent and Trademark Office to tighten up the way patents are issued.
Freedom Wireless LLC has reached settlements with a host of defendants, including Ericsson Inc., Cingular Wireless LLC and T-Mobile USA Inc., in a protracted spat over patents related to prepaid cell phone technology.
So, who are the nation's "independent inventors?" Are they patent-holders busy denouncing patent reform? Or are they the people and companies who must defend themselves against lawsuits brought by those patent-holders?
Unfortunately, it looks like the recent Symbian decision in the UK, which muddied the software patent waters yet further, could prove to be the thin end of the wedge. It's hard to know what can be done about these moves to create a Community Patent, since the idea itself is not without merit in terms of reducing European bureaucracy; but rest assured, as soon as it becomes clear, I'll be writing about it.
Maybe it's time to set up an Anti-Intellectual Monopolies Trust: anyone want to fund it?
europa.eu is entertaining Microsoft pressure groups, in this case ACT [1, 2, 3, 4, 5, 6, 7, 8. In fact, it gives an entire page to them under the "Cordis" subdomain. "Cordis is an EU website of the EU Publications Office and features a news report that advertises an ACT report. Eutopia means "good place" in ancient greek," says the person who sent this polite notification to us. "Right now we find a growing meme of domestic software in the EU," he added.
If true, these are to the credit of the EU delegation, which is clearly trying to limit at least some of the most damaging aspects of ACTA.
In my earlier posting from November last year I had reported on the secrecy of the ongoing ACTA negotiations wherein also the EU is involved. Just in order to make clear that important issues are at stake but carefully hidden from the general public, here is a small compilation of papers dated after November 21, 2008, and known to the EU Council but not published up to now...
Copyright term for music recordings must be extended from 50 years to 95 years, says legislation approved on Thursday by the Legal Affairs Committee.
Increasing the term of copyright protection would ensure that performers and producers continue to receive royalties for 95 years from the first publication or performance of their song, according to a Commission proposal backed by the committee.