Monthly Archives: June 2009

Copyright enforcement v constitutional rights

http://www.theregister.co.uk/2009/06/10/france_three_strikes_hadopi_suspended/
There has been an interesting development in France’s attempt to reduce illegal downloading of copyrighted materials.  The idea was to implement a “three strikes and you are out” rule, the penalty being suspension of internet connection to those repeatedly infringing copyright through illegal downloads. 

According to the Register,

“Judges deemed that two parts of the legislation …contravened two major areas of the 1789 Declaration of the Rights of Man and Citizen”.

They go on to report however that:

“the French Government would resubmit the law to Parliament, taking account of the Court’s objections”

France isn’t the first country to try (and so far fail) and implement such a system.  ZeroPaid.com reports similar stories from both Spain,  and New Zealand.

Seems the possibility that such measures could help reduce internet piracy by up to 70% are just too tempting despite the controversy? (see reference to the “Digital Britain Report”  again on ZeroPaid.com)

Communication tools for communities of practice events

http://www.cas-ip.org/public/uploads/2009/05/communications-skills-from-2009-npi-workshop-in-mombasa.pdf

The above link will take you to a document that was produced by Bev Trayner after she facilitated a workshop as part of the NPI in January of this year

The document is called “Learning activities: some communication tools for communities of practice events”.  Almost all of the members of the NPI have talked about the importance of raising awareness of IP issues within their institutions.  These tools and methods can be employed to achieve just that.  IP management isn’t an easy concept to communicate so creativity in ones approach can certainly help transfer the message more effectively.

CORRECTION & addition to the post “in times of swine flu”

https://casipblog.wordpress.com/2009/06/09/in-times-of-swine-flu-protecting-the-rights-of-developing-countries-over-their-genetic-resources/
After we posted the item about swine flu and protecting the rights of developing countries’ genetic resources we were contacted by the writer of the original article at IP Watch.  Kaitlin Mara emailed:

“I was concerned there might have been some misunderstanding over what I wrote, so I just wanted to clarify a couple of points.

1) the SMTA in the agreement on pandemic influenza is not the SMTA of the International Treaty; it was written especially for the purposes of virus transfer (and thus there’s no reason for the material being transferred to involve food or feed). . In drafting the SMTA for flu, delegates at WHO used the model of the SMTA on plant genetic resources as a guide (as well as 8 others, but they paid particular attention to the work of the International Treaty).

2) whether the language of the SMTA is too broad or not is a matter of debate. This is certainly the position of industry, of the US, and of other industrialised nations. This is not at all the position of many, possibly most, developing nations — Brazil and Indonesia have been particularly strong on this point — who believe a broad SMTA is  necessary to ensure their access to vaccines and other benefits. I just wanted to be clear that “too broad” is not a consensus opinion.

Also, whether or not to actually use an SMTA is not, from my understanding, still an issue. Getting rid of it was something the US proposed informally, but it didn’t go very far. The issue now is really scope.”

I would like to thank Kaitlin Mara for her clarifying comments.  In fact it is my understanding that the use of the ITPGRFA’s SMTA for non food purposes is highly debated by many involved with the International Treaty; there are express wordings excluding it for such uses in the language of the IT and the IT’s SMTA.  Therefore, apologies for any confusion we may have caused with the original post.

The next USPTO Director & the Peer-to-Patent experiment

http://www.patentdocs.org/2009/06/president-obama-to-nominate-david-kappos-as-uspto-director.html
Obama has chosen Patent Attorney David Kappos to be the next Undersecretary Of Commerce For Intellectual Property And Director Of The U.S. Patent And Trademark Office (USPTO).  Here is an article related to a US-National Public Radio interview with Kappos (http://cairns.typepad.com/peertopatent/2007/08/david-kappos-on.html) that gives a good introduction as to why we should be excited. 

Kappos has been heavily involved in the innovative Peer-to-Patent experiment which seeks to ensure that patent rights are only awarded to novel inventions. 

Of course, the down side is that IBM (where Kappos is coming from) is rather a 900-pound gorilla in the patent area and sometimes speaks out of both sides of its mouth –enjoying huge benefits from licensing its products and protecting its rights aggressively, while pointing fingers at big Pharma for putting in patent applications on anything that moves/did move at-one-time. 

However, I think this appointment bodes well for getting someone into the office of the Director that knows the field and brings a fresh perspective to the USPTO.  I hope he can also rally the Examiner Corps.  The blogs are full of tales of how demoralized US Patent examiners seems to be after years of having to do their job under difficult circumstances and with little apparent support from their administrations.

Post written by Victoria Henson-Apollonio, Manager of CAS-IP

Enlarging the ‘territorial’ nature of IP rights for goods in transit

An article recently posted on IP Watch provokes a rather interesting discussion regarding the way IP rights have been enforced on goods that are in transit.  Also relevant to the discussion are the previous posts from the CAS-IP blog:
a) https://casipblog.wordpress.com/2009/02/10/ip-law-enforcement-in-eu-trips-up-shipment-of-generic-drug-from-india-to-brazil/; and
b) https://casipblog.wordpress.com/2009/03/18/patent-enforcement-the-doha-declaration/).

Some would also perhaps remember we had very similar events in agriculture on this, although not entirely the same: http://www.guardian.co.uk/science/2006/feb/22/gm.argentina

Monsanto, in the above case, tried to sue importers of Argentinean soy in the EU but was unsuccessful.  The growth of cases in the health sector now seems to indicate that generic drugs could be seized while on transit in the EU on the grounds of (potential) infringement of IP rights in the EU when the latter is not the final destination of those products.  This is very disturbing indeed.

One could argue that this amounts to enlarging the ‘territorial’ nature of IP rights, especially when no such rights exist in the country of final destination.  One can also imagine this could have implications for developing countries’ “freedom to operate”.

There is another point in the IP Watch article that I am unclear of as well.  According to Médecins Sans Frontières (MSF), the previous EU law seems to focus mainly on trademark issues (counterfeiting and piracy) instead of being all encompassing to include also patents.  I am not sure what the rationale is for the previous EU legislation, limited to only stopping counterfeit and pirated goods.  Should there be a difference and if so, why?  Perhaps an expert reader out there would be able to help me on this point and share some further comments on this news?

Post written by Guat Hong Teh, Legal Specialist for CAS-IP

Bilski v. Doll

http://www.patentlyo.com/patent/2009/06/bilski.html

Victoria Henson-Apollonio recently sent me the above link saying: “this is a big deal, a very big deal….” In fact, another indicator of it’s importance is the existence of its own dedicated Wikipedia page

The story dates back to 1997 and an original patent application including business method claims.  It has progressed to the situation reported on PatentlyO this month whereby:

“the Supreme Court has granted certiorari in …[this] important case challenging the scope of patentable subject matter.”

The Patently O blog has been updating coverage on this case since February 2008 so visit the lead link for the list of their previous posts on this matter.

Also, in their usual no-nonsense style, the IP Kat posted an update on the situation.  IPKat said:

“Whether this will sort out the mess that the USPTO is currently in about the boundaries of patentability is anyone’s guess.”

Clearly a case to be watching!

Pirates in the European Parliament!

http://news.bbc.co.uk/2/hi/technology/8089102.stm
The recent European elections saw a Swedish group called the “Pirate Party” win a seat in the European Parliament.  According to the BBC article:

“the group – which campaigned on reformation of copyright and patent law – secured 7.1% of the Swedish vote”

These issues have been attracting international attention and comment during the “Pirate Bay” case that was held in Sweden.  See earlier CAS-IP blog posts:

https://casipblog.wordpress.com/2009/06/01/the-pirate-bay-case-again/
https://casipblog.wordpress.com/2009/05/20/the-pirate-bay-plot-thickens/
https://casipblog.wordpress.com/2009/04/30/the-pirate-bay-decision/

The BBC article included the following quote from Rory Cellan-Jones, the BBC technology correspondent:

“Many people just don’t see illegal file-sharing as a crime, however hard the media industries try to persuade the public that it’s just as bad as shoplifting”

This gives food for thought over the attitudes of the public regarding these issues!

A Business Week Special Report, “The Failed Promise of Innovation in the U.S.”, asks where the new products are:

http://www.businessweek.com/magazine/content/09_24/b4135000953288.htm?chan=magazine+channel_top+stories

Michael Mandel, Business Week’s chief economist looks at several parameters.  He identifies nine technologies, from tissue engineering to fuel cells that showed high promise in the late 1990s but have failed to deliver.  Between 1998 and 2007 US InfoTech stocks have declined by almost 30% and he discusses the relationship between these factors and the current economic downturn.

Although it poses more questions than it answers, the report is well worth reading.    We already know that investment in R&D has been declining, and that the USA is now ranked #6 (with China #1) on a range of innovation-based competitiveness metrics:
http://www.itif.org/index.php?id=226

And what about education?  Mandel does not address this variable, but many observers believe that the decline in math and science literacy is a critical factor in this equation.  California’s budget crisis has now resulted in the effective suspension of the CalGrant college aid program

Mandel signs off by observing that:

The professor, trader, and author Nassim Nicholas Taleb calls technological breakthroughs “positive Black Swans”—unexpected events with huge positive consequences that in retrospect look inevitable. Some, such as Google, come out of nowhere to dominate within a short time. Others take years to mature and are surprising only because people forgot they were there. We’ve learned over the past 10 years just how unpredictable technology can be. But right about now, the U.S. could use a few positive Black Swans.

Post written by Peter Bloch, consultant to CAS-IP

In times of swine flu; protecting the rights of developing countries over genetic resources

http://www.ip-watch.org/weblog/2009/05/18/who-members-fail-to-finish-pandemic-flu-preparations/

How do we ensure that genetic material for vaccines and viruses, which could help fight the current threat of Mexican swine flu, are transferred and shared effectively?  The material used to develop a vaccine could be transferred by using a Standard Material Transfer Agreement (“SMTA”) of the International Treaty for Plant Genetic Resources for Food and Agriculture (the “International Treaty”) – despite the material being used neither for food nor for animal feed.
However, many developed nations, including the United States (which incidentally is not party to the International Treaty) have objected to the use of the SMTA claiming that it’s broad provisions lead to unacceptable delays during times when a serious health threat is posed.  This has meant that a considerable amount of material has been distributed without the use of an SMTA. 

Developing countries fear their natural resources may be used to create a vaccine, but then the benefits will not be shared with them.  Or, an additional risk could be that materials given to the World Health Organization (“WHO”) with the intent to prevent a pandemic could be transferred to private companies for the manufacture of vaccines and then perhaps used for different purposes. 

Despite objections being made by some countries regarding the use of the SMTA in the sharing of viruses, the WHO Secretariat is already exploring this possibility, and is considering whether there are any lessons to learn from the use of an SMTA in access and sharing of benefits within the multilateral system of plant genetic resources for food and agriculture created by the International Treaty.

The question is: despite these specific reasons for not wanting to use the SMTA, is it not true that something should anyway be done to the language of the document as it is too broad?

The original blog post was written by Francesca Re Manning with contributions from Peter Munyi.  Both Francesca and Peter are consultants to CAS-IP.

Pig farms, EU subsidies & “de-development”

http://www.nytimes.com/2009/05/06/business/global/06smithfield.html?_r=1

This is the kind of article one reads, and then wishes they hadn’t. Published in the NYTimes at the height of the media frenzy about “swine-flu” it tells the sorry tale of the transformation of Eastern Europe’s pig farming industry.  Describing how a Fortune 500 company, with the help of E.U subsidies has contributed not only to the decline of local pig farming traditions, but also to the decline of pig farming in some parts of Africa, where local farmers cannot compete with the cheap exported pork that reaches their market.  Read and weep…