Final Draft of ACTA Released

By Jason Rantanen

Yesterday, the negotiating parties (which include the United States) released the final draft of the Anti-Counterfeiting Trade Agreement (ACTA), a document that purports to combat the proliferation of pirated and counterfeit goods.  The development of this Agreement has been subject to considerable controversy, in large part due to the secretive nature of its negotiation, which took place outside conventional International IP bodies such as TRIPS and WIPO.  The Electronic Frontier Foundation, for example, has written extensively about the subject, as has Michael Geist

In its final state, ACTA relates primarily to copyright and trademark infringement, and expressly disclaims application to patent law in several sections.  Nevertheless, everyone interested in intellectual property law issues should give it a read (and at only 24 pages long it's a surprisingly concise document), as within the area of trademark and copyright infringement the scope of ACTA is very broad: despite its characterization as a "Trade Agreement," it covers the enforcement of IP rights in the domestic civil, criminal, and digital spheres in addition to providing for border control measures, 

Although ACTA generally tracks existing U.S. law on copyright and trademark infringement, the Agreement has a clear pro-rights holder slant.  For instance, provisions on discovery discuss only the rights of the party asserting the infringement claim, and do not require similar rights on the part of the alleged infringer.  Readers may also want to pay particular attention to the criminal provisions – which seem on their surface to make any commercial willful trademark or copyright infringement subject to criminal penalties.

Given that this document likely will be scrutinized by scholars and practitioners concerned about the implications of strong copyright and digital property rights, I'll identify just a few specific drafting issues that leaped out at me.

  • "Trademark counterfeiting" and "copyright piracy" are broadly defined, and seem to include any form of trademark or copyright infringement.  In other words, these terms could be readily replaced with "trademark infringement" and "copyright infringement" wherever they appear in the document.  That said, the trademark counterfeiting language is somewhat ambiguous, and could plausibly be read to only apply to instances where the mark "cannot be distinguished in its essential aspects" from the registered trademark.
  • Another issue is the sudden appearance of "copyright or related right," which is first used in Chapter Two, Article 2.2(1).  Perhaps this is an artifact from earlier drafts, but I didn't see any definition of these "related rights."
  • The procedures for civil enforcement of IP rights largely appear to parallel U.S. law.  However, the damages provisions strongly favor rights holders, perhaps more so than current domestic copyright and trademark law. 
  • Similarly, to the extent the sections on litigation discovery procedures expand parties' rights and obligations, they may create a disjunction with current law.
  • In the context of border measures, the terms "goods of a commercial nature" and "goods of a non-commercial nature" are left undefined.  On the surface, it seems like nearly every good hs a commercial nature, but perhaps I'm just picking at nits with this one.
  • Likewise, the term "acts carried out on a commercial scale," used in the context of the section on criminal penalties, seems equally broad, especially given that it includes "at least those carried out as commercial activities for direct or indirect economic or commercial advantage."
  • The pro-rights holder forum and education campaign requirements seem quite one-sided, especially for such a sensitive subject.  Chapter Three, Articles 3.1(4) and 3.4 are particularly strong in their requirement that governments present a pro-IP rights holder message.

The full text of the proposed version of ACTA is available here:  Download Finalized ACTA text.  In addition to substantive issues, some organizations have raised concerns about the potential approval of ACTA via Executive Agreement, as opposed to ratification by the Senate.  If the former approach is indeed used, it will likely have profound legal implications that courts, practitioners and scholars will need to address.

Update: As one commenter pointed out, Terry Hart's blog Copyhype has a detailed point-by-point comparison of many ACTA provisions to the relevant U.S. law.  Mr. Hart also responds to some of the negotiation transparency criticisms that various organizations have raised. 

98 thoughts on “Final Draft of ACTA Released

  1. It’s good news that patents were ultimately removed from ACTA. Indeed, patent infringement is, legally speaking, so different from copyright and trademark violations, in terms of substance and result, that giving all infringement identical treatment makes little sense. Some had also voiced concern that the inclusion of patent-specific provisions could be used by some to prevent competition. In the face of such conflicts, it’s better to be safe than sorry; save patents for another agreement.

  2. There is only a few things wrong with this legislation it doesent deal anything with regular intellectual property or the concept of improved inventorship determination methods. The Unuted States is the world leader in production of I.P. because of 4 men dating back to 1803. I get so discusted with people talking about why should inventors be granted a monopoly. A monopoly is established when a non patent protection involved company corners the market using money dominance and other unfair practices. A patent is granted in gratful appriciation for the creation of the products that make our lives better.

  3. The Fish called me too while I was in the NAS Pensacola Commissary in 1997. So that makes Three. And who were they all beholding too. So you see I get it!
    And the last time I spoke with her She told me I had to make an appointment to see my Files.. AND I BELIEVED HER.
    Now the only thing I have to worry about now that I get it, is ending up —-!

  4. it seems to me that updating our 18th-century (or older?) techniques for tracking interests in real property could actually be beneficial

    It seems so to me, too. Of course, patents are entirely unnecessary to encourage such “innovation” which merely rides on the coattails of genuine innovations in computer hardware.

    Business methods are “shxt” even if you’re not trying to get patent claims to them?

    Of course not. But this particular method is.

    Incontestable proof of this is “in the pudding”, as they say. Except it’s not pudding. But you and I will be eating it, and not the banksters, sure as the sun sets in the west.

  5. Mooney reminds one of Andrew Jackson who got rid of the Federalist appendage known as the US Bank. What happened when Jackson did that?

    The most severe depression in American history.

  6. ” Does election of species limit claim scope of a generic claim that is allowed on the FOAM, which happens to be a NOA?”

    No, and that I’m certain of.

    In fact, I do believe further that if your generic claim was issued then you should get all the species claims that are covered under that generic claim issued in that patent as well as the restriction should be withdrawn and all species examined. If they didn’t withdraw the restriction and examine all the species you can request that they do so if you want to.

    ^I believe this to be correct but someone can back me up on that part. I have yet to allow a generic claim so as to have to do this procedure.

    And no Max I wasn’t being flippant.

    And Cy Nical I think MM said “scam” not “shxt”. There is a subtle yet important distinction between the two.

  7. Now the bank lobbyists are scrambling to find legal protection for their (ahem) “innovative” mortage recording scam. I’d love to know if MERS (or some shadow company) tried to or actually obtained patents on this phenomenally pure pile of business method shxt.

    I’m a little confused. Business methods are “shxt” even if you’re not trying to get patent claims to them?

    I don’t have the benefit that some do of knowing everything, but it seems to me that updating our 18th-century (or older?) techniques for tracking interests in real property could actually be beneficial, leaving aside the patentability of said techniques and whether MERS and its customers are acting outside of the law.

  8. link to washingtonpost.com

    The companies have opened wide their wallets for lobbying and are flying top executives to Washington for one-on-one meetings with lawmakers. They are holding briefings for key staffers, including an event last week that drew more than 60 aides. And they are blanketing Congress with white papers, memos and other documents that lay out their arguments.

    The focal point of their efforts is Mortgage Electronic Registration Systems, or MERS, the controversial, privately run electronic database that is used by practically every lending institution and investment company to track the transfer of the ownership of mortgages as they are packaged into securities and traded at lightning speed around the globe.

    But MERS does more than just track the trading of loans. In the vast majority of mortgage documents at local courts and offices across the country, it is listed as the holder of the loans. That allows the financial industry to trade mortgages as much as it wishes without spending the time and money to refile the paperwork.

    The industry is seeking legislation that would effectively affirm MERS’s legality and block any bill that would call into question what MERS does. MERS has spent more than $1 million in lobbying since fall 2008, when lower courts around the country began to rule against it. But MERS had kept its name under the radar until the recent uproar over foreclosures revealed broad problems in mortgage paperwork.

    Now the bank lobbyists are scrambling to find legal protection for their (ahem) “innovative” mortage recording scam. I’d love to know if MERS (or some shadow company) tried to or actually obtained patents on this phenomenally pure pile of business method shxt.

    But it’ll be interesting to watch all those “Federalist” types in Congress trip overthemselves trying to prove which one of them is more hypocritical than the others.

  9. Malcolm, you put it to me that “it would be nice” to get rid of a statement that triangles work but hexagons don’t, when you want to get through to issue a claim that recites ….improved through its hexagon form.

    I assume the originally filed app reveals no advantage in using hexagonal. in that case, as I see it, the difficulty at the EPO would lie with “improved” and with obviousness, rather than with novelty or addition of matter.

    But if the app as filed at the EPO consistently teaches that “triangular” is an essential feature of the invention, then omitting it from the claim would be tantamount to adding matter.

  10. There are very often times the deletion of something is considered a positive.

    Take for example, the prime horseman would find it a great positive if the three other horsemen were deleted.

  11. You are surmising that deleting something during prosecution at the USPTO amounts to impermissible addition of subject matter.

    Suppose you have a nice portrait of your grandfather, wearing a hat. You always wanted to know what your grandfather’s hair looked like, so you bring the portrait to a portrait painter and ask him to “remove the hat”.

    Does that add new matter?

  12. You are surmising that deleting something during prosecution at the USPTO amounts to impermissible addition of subject matter.

    If you delete something from your specification and the deletion enables you to obtain increased claim scope that you would otherwise not be entitled to, then you have effectively “added subject matter.” Recognizing that in most cases what you are deleting is a disclaimer of sorts (e.g., a negative limitation). Logically, it’s not that weird.

  13. Does election of species limit claim scope of a generic claim that is allowed on the FOAM, which happens to be a NOA?

    If the generic claim was examined and deemed allowed, then the scope is not affected by the species election. Confirm that your species election was a bona fide species election (and not an election of a distinct invention) in which case the Examiner should have proceeded to examine the next recited species (until convinced of the allowability of the generic claim).

  14. Hang on there a minute. You are surmising that deleting something during prosecution at the USPTO amounts to impermissible addition of subject matter. Even in Europe, notoriously fierce on prosecution amendments, that is a hard sell.

  15. MD 6 was that last serious, or was it flippant? I’m having difficulty imagining a situation where an original full specification fails to provide support for a claim but, later, that same claim would be supported, just as soon as you remove some text passages from the original specification.

    C’mon MD.

    Spec recites “A key discovery that distinguishes the invention from the prior art is that a triangular furble is more resistant to rust than a hexagonal furble. The rust-resistant furbles of the invention can be used in various contexts, e.g., gromits and doohickeys.

    Now you want to claim “An improved doohickey, wherein said doohicky comprises a hexagonal furble.”

    It’d be nice to get rid of that statement, no?

  16. I’m having difficulty imagining a situation where an original full specification fails to provide support for a claim but, later, that same claim would be supported, just as soon as you remove some text passages from the original specification.

    You might have statements in the original specification that carve out portions of a genus as being undesirable or unworkable, which would prevent you from getting the corresponding generic claim until deleted. You might have a single embodiment which is clearly unworkable as shown, but deleting that embodiment would result in a more general description that is just as clearly enabling to a person of ordinary skill. In those cases, a sensible examiner will consider the deletions to add new matter.

  17. Can you properly file a continuation application that deletes several drawings and portions of the specification related to those drawings?

    What would be the point?

    Uh, if the portions of the spec and the drawings suggest that your invention requires certain limitations, it might be nice to remove them.

    I think the deletion could be considered “new matter” if it materially affected the prosecution. At the very least, enforceability could be questioned.

  18. Another question. Does election of species limit claim scope of a generic claim that is allowed on the FOAM, which happens to be a NOA?

  19. 6 was that last serious, or was it flippant? I’m having difficulty imagining a situation where an original full specification fails to provide support for a claim but, later, that same claim would be supported, just as soon as you remove some text passages from the original specification.

  20. “The claims, of course, will be supported by the remaining disclosure.”

    That is of course a given, but the real question is, will the claims be supported by the ORIGINAL disclosure to which you are claiming priority? If so, then sure. If not, then no.

  21. Can you properly file a continuation application that deletes several drawings and portions of the specification related to those drawings?

    What would be the point? You’re entitled to claim less than the full scope of your disclosure, and editing down the spec is extra work that costs extra money.

  22. Unrelated question. Can you properly file a continuation application that deletes several drawings and portions of the specification related to those drawings?? The claims, of course, will be supported by the remaining disclosure.

  23. As the EU weakened patent protection (parallel importation, etc.) and imposed other patent-circumventing regulations like price controls, the new drug production dropped to 33%.

    Is there some kind of rule in Europe that you can only get patent protection for a drug that was developed in Europe?

    Because otherwise, I would expect local patent law to be completely uncorrelated with where R&D takes place. Develop your drug where you have the expertise, file patents all over the world, and get whatever protection you can.

  24. “s this unique feature of US patent law perhaps why so many ultra-clever global corporate titans file first at the USPTO?”

    Nah, they just heard I was at the PTO and they wanted a chance to experience greatness so they filed with the USPTO.

  25. “the new drug production dropped to 33%”

    You’re talking in percentages, did their production drop or did the US et al. have theirs explode?

  26. David, I hardly think we need any further material to satisfy readers of this blog that patents are indispensible in the pharma field.

    Can you comment on the USA’s membership of the Paris Convention? In theory, a priority filing in any one member state should be as effective as the same filing in any other. But the USA, alone of all Paris member states, operates the Henry Ford school of business: you can have any color you like, as long as it’s black, and you can file in any Paris Convention country you like. But if you want 102(e) protection you have to file first at the USPTO.

    Are you urging China to adopt the Henry Ford route to business success? If so, should it first leave the Paris club of nations?

    Is this unique feature of US patent law perhaps why so many ultra-clever global corporate titans file first at the USPTO?

  27. David–

    Far from “clearly demonstrating” anything, you have merely suggested a causal relationship.

    Can you provide any more specific support for your suggestion, for instance, statements by industry representatives?

    I, for one, buy into the premise, which I have heard articulated elsewhere. It would be nice to have better evidence, though.

  28. 6: Pharma innovation gravitates towards the strongest patent protections. In 1990, European countries developed about 50% of new drugs worldwide. As the EU weakened patent protection (parallel importation, etc.) and imposed other patent-circumventing regulations like price controls, the new drug production dropped to 33%. The innovation (along with profits and job creation :D) shifted to the open, patent-protecting US market. This demonstrates the value of patent protection in the pharma field pretty clearly.

  29. Oh, you and I both know better

    see above bouts what momma says, ya chucklehead.

    Do they consent to the shooting?

    Another chucklehead

  30. “it is not ok to shoot them when you want to take the cash they have in their pockets? ”

    Well no, of course not, at least as long as you can just take the cash they have in their pockets without shooting them. If for some reason taking the cash from their pockets would require you to shoot them then it’s kind of iffy whether shooting them is ok or not. Do they consent to the shooting?

    “It’s okay to shoot someone when they are attacking you with a rifle”

    No, that’s not ok either. But you should take the rifle from them as well as the cash that you’re after.

  31. pingaling u attribute the quote to me whenz I aint be that person.

    Oh, you and I both know better, pingaling.

  32. >>Okay, so… making laws to implement a policy is >>fine, but “bending” the law to implement a policy >>is not fine.

    Uh Yeah! That is the way the law works. What is particularly bad is when people (read Lemonhead, MM, Moore, Stern) intentionally misrepresent the law (this is what I believe they do) to try and get their policy objective achieved.

    It amazes me that you don’t know this. Scares me actually. Next you’ll walk up to someone and shoot them and say well what’s wrong with that? It’s okay to shoot someone when they are attacking you with a rifle, but it is not ok to shoot them when you want to take the cash they have in their pockets?

  33. Slonecker–

    So the issues you have with Geist have nothing in particular to do with the fact that he is Canadian, whatever that means.

    Your speaking in disparaging terms is no less unsavory than his speaking in mocking terms, if in fact he did–you have failed to provide us a specific example.

    Americans are becoming decidedly thin-skinned. I know Florida owes half its economy to Canadian snowbirds, but how can you let a pencil-necked Canuck get under your skin like that?

  34. What makes Masnick so unbelievable?

    First of all, his wretched understandin of law in general, and patent law in particular.

    Seconds, like you, he bases his position on wanna-be’s and “should-be’s” but lacks both facts and law as critical underpinnings.

    Those two observations are more than enough.

    Sunshine Malcolm – momma always said ya can tell the li_ars bein the ones who think everyone be lien.

    You attribute the quote to me whenz I aint be that person.

    As to “strawman”, more chuckles from the person who accuses everyone of the worst that he be doin. Beatin straw be your speciality – right after chasin windmills, sitting at the edges of rye fields and dreamin of old professors.

    You just one big tub O chuckles.

  35. pingaling I’m not aware of any … claim formats that are routinely allowed without objection.

    Are you beating a strawman, pingaling, or is this just your usual reactionary idiocy?

  36. “refuted at Mike Masnick”

    LOL – that be some incredible source, there policy wank.

    Your credibility just cratered. Even more deeper than normal.

    Really? What makes Masnick so unbelievable?

    Furthermore, what makes Gene Quinn some infallible source of information? The guy’s a shill for independent inventors; he’ll say anything that will benefit his practice. If anyone lacks credibility, it’s Quinn.

    As to the see me and raise – ya forget – I only needed to raise a single example to shoot down your premise. I don’t hold that a whole spectrum of cases exist, so your counter example is, well, pretty meaningless.

    I said “any”, not “all”. Perhaps you need a refresher in General Logic.

    Furthermore, Microsoft is perfectly happy to use its patents to push out innovative competition. See it’s ongoing cold war against the open-source community as well as it’s recent spat with Motorola.

  37. “Let’s pretend I also mentioned all the other claim formats that are in widespread use, routinely allowed without objection…”

    Beauregard claims are routinely allowed without objection? Now I know you’re not actually practicing. I’m not aware of any claims or claim formats that are routinely allowed without objection.

    “…of dubious validity because of their structure…”

    Really?

    “…and have never had their validity recognized by the courts.”

    But recognized by the PTO. And outside of one uninformed USDC J, not had their validity questioned by the courts.

  38. refuted at Mike Masnick

    LOL – that be some incredible source, there policy wank.

    Your credibility just cratered. Even more deeper than normal.

    As to the see me and raise – ya forget – I only needed to raise a single example to shoot down your premise. I don’t hold that a whole spectrum of cases exist, so your counter example is, well, pretty meaningless.

    Wilton my boy, you be in the wrong place.

  39. Inviting Body Punches,

    I have followed Mr. Geist’s blogs for many years, and more recently his many opinions regarding ACTA.

    All of his opinions regarding ACTA boil down to a very simple position…”Principles of US copyright law, and especially the DMCA, should not be exported elsewhere!”

    I do not dispute Mr. Geist’s credentials as an academic. He is well-respected within Canada as an authority on Canadian copyright law.

    Nevertheless, Canada is not the US, and I do not look to Mr. Geist for insight into US copyright law, especially when he speaks of US officials involved in ACTA negotiations, such as the USTR, in what I view to be mocking terms.

  40. “Correlation does not equal causation. If your position is that innovation would stagnate without a strong patent system, you’re going to have to provide some evidence that proves your theory.”

    Wilton, the policy beast rears his ugly head, demanding proof, but offering nothing but policy wanking. These questions long been asked and answered over at Quin the Eskimo’s place.

    And such answers have been roundly refuted over at Mike Masnick’s place. So who do you believe? A patent prosecutor who has an interest in seeing more patents get filed (Quinn), or a business consultant who hasn’t owned a patent in his life and has (to my knowledge) never been sued for patent infringement?

    “It’s why any legacy company likes patents.”

    Completely ignores the fact that legacy companies actually do not like patents, cause patents in the hands of little guys overcome the benefits of the legacy company (hmm, can anyone say i4?).

    Really? Does Nokia not count as a legacy company? They’re quite busy with patent litigation right now, and it’s not because some little guys are crying foul.

    I’ll see your i4i v. Microsoft and raise you Verizon v. Vonage. If that’s not a case of a legacy company trying to protect its market share at the expense of the public, I don’t know what is.

  41. I’m a bit surprised that you’ve never seen even one allegation that depended on a Beauregard claim.

    So am I, this is the first I’m hearing of it.

    I thought you meant “any” as “any plague of infringement allegations”, not “any infringement allegations”.

  42. No, but in my practice I don’t routinely get invited to every single demand letter or license negotiation between any two software companies in the country. Something about conflicts, I think.

    That certainly explains why you can’t quantify the full extent of the plague of Beauregard claim assertions. But given the gallons of(metaphorical) ink spilled on the topic on these pages, I’m a bit surprised that you’ve never seen even one allegation that depended on a Beauregard claim. That leaves me a bit puzzled over your obsession with the topic. Just how many Beauregard claims can you fit on the head of a pin?

  43. I haven’t seen any. Have you?

    No, but in my practice I don’t routinely get invited to every single demand letter or license negotiation between any two software companies in the country. Something about conflicts, I think.

    The argument made here applies to any and all claims issued by the Office. Quite a bit of disingenuousness to single out “Beauregard” claims has having this pernicious attribute.

    Oh, I’m sorry. Let’s pretend I also mentioned all the other claim formats that are in widespread use, routinely allowed without objection, of dubious validity because of their structure, and have never had their validity recognized by the courts.

    Feel better?

  44. Slonecker–

    You would be better served to address the substance of Geist’s blog, rather than to dismiss his opinions as irrelevant simply because he is “Canadian”.

    If his blog evidences some sort of bias in favor of Canada over competing interests from elsewhere such as the U.S., or if it is so steeped in Canadiana that it is worthy of derision or ridicule, fair enough–but to dismiss him simply for being “Canadian” tells us more about you than about him.

    By the way, what does “Canadian” mean anyway? Canadians can’t even tell you. Apparently to you it is synonymous with “opinions on U.S. law must be summarily dismissed”. Ridiculous.

    So either address the substance of his writing, show us some bias that disfavors the U.S., give us his background and show that it contains nothing of worth relative to U.S. law, or make fun of him for being Canadian. Surely that last one won’t be hard, eh!

    By the way, Geist has an LLM and JSD, both from Columbia.

  45. Actually IANAE, I think it is the other way around. It is America who loves Binding Precedent and it is jurisdictions eastwards who want more wiggle room in their caselaw and contractual obligations. Germany lies half way between the USA and East Asia in that regard. Although the European rule “No software, as such” has been there since 1973, the interface between patentable software and that which is not was at the beginning horribly murky, and has been getting since then gradually and progressively less fuzzy. It’s a work in dynamic progress, free from the shackles of US-style Binding Immutable Precedent.

  46. The PTO grants them, and you can’t invalidate the issued ones without a huge, expensive fight.

    Wow, what a red herring.

    The argument made here applies to any and all claims issued by the Office. Quite a bit of disingenuousness to single out “Beauregard” claims has having this pernicious attribute.

  47. The PTO grants them, and you can’t invalidate the issued ones without a huge, expensive fight. You then threaten other people that you’ll start a huge, expensive fight unless they give you their lunch money.

    Like there’s a plague of infringement allegations that depend on Beauregard claims for their viability. I haven’t seen any. Have you?

  48. immutable ground rules

    Yes, Germans like immutable ground rules. Americans don’t really care for them. They prefer having something to argue about. Who cares if Beauregard claims are actually valid? The PTO grants them, and you can’t invalidate the issued ones without a huge, expensive fight. You then threaten other people that you’ll start a huge, expensive fight unless they give you their lunch money. If you threaten people who have their own Beauregard claims, it’s even more fun because you can do the “don’t hit yourself” bit.

    Knowing where you stand is less important than knowing who you can hit from there.

  49. Night thanks. You allude to “as such”, I know. But I’m always grateful when an American patent attorney tells me that I just have to know how to claim things “properly”.

    You make it all seem so simple: Any program under the sun is patentable in Germany; you “just” have to bring out in your application how it is, when “properly” understood, substantive innovation in computing hardware.

    If software applicants enjoy success in Germany with their Beauregard claims, it might be because they have known the immutable ground rules, since 1973, and decide accordingly what is worth filing on.

  50. NWPA: There are laws that are made to implement a policy. Patents to promote innovation. There are people that bend the law to get their policy. Difference in making a law and interpreting the law.

    Okay, so… making laws to implement a policy is fine, but “bending” the law to implement a policy is not fine.

    What counts as “bending” the law? Academics interpreting it? Judges interpreting it? Interpreting the law objectively but coming to a conclusion that favors certain policy goals? Lawyers taking their client’s side in a dispute over a question of law? An unsettled question of law? Debating what is clearly an ambiguity in the statute? People like me saying it should apply in the same way to all technologies? People like Max saying it should apply in the same way to all technologies because of international treaty that was made to implement a policy? People like you interpreting the law in a certain way for policy reasons without any reference at all to the policies for which the law was enacted? Anybody who disagrees with you, for whatever reason?

    Check all that apply.

  51. >>”too restrictive”

    Max, the German law does allow a lot of computer programs as well you know. They just must be claimed properly so that their utility includes some advantage to the hardware.

    “Admits”: The Germans want very much to have a stronger software industry. SAP is quite a success and they want more of it.

  52. Sorry Sarah, about my mistake with your name. Sarah Ferguson was the maiden (!) name of the girl who got married to the British Queen’s second son Andrew.

    Night, “Germany” admits, you say. If I understand you right though, America also “admits” exactly the same thing.

    Oh but wait, there is somebody who does not so admit. Now, what’s their name? LINUX was it?

    As to your “too restrictive” I just quoted the law. Are you saying the Germans are not following their own law? I’m shocked.

  53. >>programs for computers, treatments of the >>human body by surgery or therapy, >>presentations of information and methods of >>doing business.

    That is too restrictive a statement for German patent law. Also, Germany companies and researchers file many patents in the U.S.A. for your list above. And, Germany, admits that it is too weak in software. Maybe your list gives a clue as to why.

  54. Sarah Ferguson, that was the most coherent posting I have seen from you for quite some time. You are not a professional patent practitioner but you are (I guess) an American voter and you found my text to your liking. I feel vindicated.

    One thing puzzles me though. From your earlier posts, I had supposed that you have tried at least once to get a patent. So I had thought you would be in favour of “Patents for Everybody”.

  55. 6: readership of this blog might not be representative of “We, the people”. When you write:

    “I will never understand why, in a country so wedded to freedom we have so many that blanch at the thought that freedom might also be a good thing in the manufacturing sector. Or for that matter the copying sector.”

    Patently-O might be a very popular blog, but I doubt that it can tell us how ordinary American voters feel about the patent system and whether they want patents on (I draw the following from the list of things you can’t patent in “powerhouse of innovation” Germany): programs for computers, treatments of the human body by surgery or therapy, presentations of information and methods of doing business.

    As you intimate, competition and freedom are good, and the patent system is an exception to the freedom to innovate. Exceptions to such worthy goals as “freedom” should be strictly cabinned and confined. If we few patent geeks do not play nicely with our toy, the patent system, the voters will sooner or later lose patience, and take it away from us (or us away from it).

  56. “6, A tiny country like Switzerland that was probably using another country’s patent system like the U.S. or Germany to promote innovation.”

    O, right, my bad, any evidence pointing away from what you want is obviously the result of exactly the thing it points against.

    I will never understand why, in a country so wedded to freedom we have so many that blanch at the thought that freedom might also be a good thing in the manufacturing sector. Or for that matter the copying sector.

    One day I predict that the legacy systems shackling us will indeed be thrown off.

    Well, that is if we don’t all have a replicator/advanced 3d printer in our homes to fill our need for junk here shortly.

    You know what I think will be one of the funniest things that happens in my lifetime? We will invent replicators, or something close enough to them, and when it happens we’ll be thoroughly unimpressed. Except maybe technical nerds/geeks.

  57. 6, “the IBMs” doesn’t mean just IBM.

    6, A tiny country like Switzerland that was probably using another country’s patent system like the U.S. or Germany to promote innovation.

    6, try harder. Still at best a 135 on the LSAT.

  58. smashmouth Why do you assume this is such a trivial problem?

    A machine that recognizes bird species isn’t necessarily trivial. For example, an actual machine that I could hold in my hand and point at any bird in flight and have it come back more or less instantly with the bird’s identity … that would be sort of cool.

    But a claim to a computer-implemented method that recites nothing more than comparing features of a bird with a database of stored bird features … using a POWERFUL COMPUTER BRAIN … now *that’s* trivial.

    Let me know if you find it impossible to believe that the PTO would issue such a claim in 2010, or if you believe that identifying a bird by comparing its features to features of previously identified birds is non-obvious. We can proceed from there.

  59. “But, of note, is that no country that I know of excels in innovation without a strong patent system.”

    Wasn’t the quentissential country to show this the swiss awhile back in the pharma area? Apparently they didn’t have patents for pharma for awhile and their industry boomed. It might not have been the swiss, but it was one of those contries around that area.

  60. “China will turn to a strong patent system once they climbed up the food chain a bit higher. You’ll see. ”

    Proving once again the old theory that patent systems follow innovation and success, not promote it.
    :(

  61. “Meanwhile the PTO grants a patent on a computer-implemented method of identifying a bird. LOL!

    Posted by: Malcolm Mooney | Nov 17, 2010 at 04:58 PM”

    Why do you assume this is such a trivial problem? Just to take a related, older example, figuring out how to program a machine to recognize speech took a lot of research, thinking, and ingenuity. And don’t get me wrong, I’m not one of the reflexive patent-uber-alles posters like AI or NWPA. Still, I’m not convinced your sneering dismissal here is so self-evidently correct.

  62. “The pigs just crashed and burned on the sidewalk. ”

    Hey man just because you’re into old men doesn’t mean we all have to be.

  63. China will turn to a strong patent system once they climbed up the food chain a bit higher.

    too late, they already started.

  64. Meanwhile the PTO grants a patent on a computer-implemented method of identifying a bird.

    Oh lookie, another windmill.

    I’ve got your bird right here.

    Saved at the edge of the rye field, no less.

  65. we all know that you aunt would be willing to take a photograph of a bird and send us an email with an identification.

    I’ve got your bird right here.

  66. MM yaps: >>a computer-implemented method of identifying a >>bird.

    And we all know that you aunt would be willing to take a photograph of a bird and send us an email with an identification.

  67. >>Correlation does not equal causation.

    No kidding. But, of note, is that no country that I know of excels in innovation without a strong patent system.

  68. link to nytimes.com

    When Sam Keller, a former quarterback at Arizona State, sued the video game publisher Electronic Arts last year, he was seeking compensation for himself and other college athletes whose names were not used but whose images he contended were being illegally used by the company.

    Among those backing Keller is the company that owns the rights to Bob Marley’s work. But to the media conglomerates, athletes, actors, First Amendment advocates and others who have recently weighed in on the case, Keller’s lawsuit is about much more than video games. The outcome of a recent appeal filed by Electronic Arts, their lawyers say, could rewrite the rules that dictate how much ownership public figures have over their images — and the extent to which outside parties, including media and entertainment companies — can profit from them….

    Keller and his supporters have said that sports video games should not be protected because they are simply trying to replicate real life and are not creative in nature.

    Meanwhile the PTO grants a patent on a computer-implemented method of identifying a bird. LOL!

  69. >>Even so, advocating for a strong patent system >>because you think innovation is important is >>nothing more than bending the law to suit your >>policy objectives. And we all know a few >>choice words that describe those people.

    There are laws that are made to implement a policy. Patents to promote innovation. There are people that bend the law to get their policy. Difference in making a law and interpreting the law. Sheesh. D0pe.

  70. Correlation does not equal causation. If your position is that innovation would stagnate without a strong patent system, you’re going to have to provide some evidence that proves your theory.

    Wilton, the policy beast rears his ugly head, demanding proof, but offering nothing but policy wanking. These questions long been asked and answered over at Quin the Eskimo’s place.

    It’s why any legacy company likes patents.

    Completely ignores the fact that legacy companies actually do not like patents, cause patents in the hands of little guys overcome the benefits of the legacy company (hmm, can anyone say i4?).

    is nothing more than bending the law to suit your policy objectives. And we all know a few choice words that describe those people.

    Same words apply to those who wish to distinguish the patent system on an art field by art field basis, no doubt my man.

  71. If your position is that innovation would stagnate without a strong patent system, you’re going to have to provide some evidence that proves your theory.

    Innovation would clearly stagnate without a strong patent system in the pharmaceutical field, and it would just as clearly not stagnate in the software field. Other fields are somewhere in between, depending on such factors as cost of research, natural barriers to market entry, and the level of idle curiosity in the art.

    Even so, advocating for a strong patent system because you think innovation is important is nothing more than bending the law to suit your policy objectives. And we all know a few choice words that describe those people.

  72. The ultimate question is of course what is the best for the consumers not in the short term but in the long term. In the long term, we need the IBMs to invent, and we need the Apples to make products and pay for using the inventions.

    In the long term, yes, consumers benefit from innovation. However, innovation typically comes from increased competition, where competitors in the marketplace attempt to one-up the competition by creating better products. When such competitors are kept from doing so because one entity has a 20-year legal monopoly on a particular technology, innovation tends to slow down.

    Innovation would stagnate without our patent system. Whey is it that the Chinese are the only country that is doing well and doesn’t have a strong patent system? Germany has become a powerhouse of innovation. Japan is and has been for some time a powerhouse of innovation. The UK is and has been a power house of innovation. The U.S. is and has been a power house of innovation.

    Correlation does not equal causation. If your position is that innovation would stagnate without a strong patent system, you’re going to have to provide some evidence that proves your theory.

  73. >>The real question is this: why would consumers >>want patents?

    The ultimate question is of course what is the best for the consumers not in the short term but in the long term. In the long term, we need the IBMs to invent, and we need the Apples to make products and pay for using the inventions.

    Innovation would stagnate without our patent system. Whey is it that the Chinese are the only country that is doing well and doesn’t have a strong patent system? Germany has become a powerhouse of innovation. Japan is and has been for some time a powerhouse of innovation. The UK is and has been a power house of innovation. The U.S. is and has been a power house of innovation.

    China will turn to a strong patent system once they climbed up the food chain a bit higher. You’ll see.

  74. Now let’s see: would Apple want a strong patent system that would mean they would have to pay the inventors to make their products? No.

    Would IBM want a strong patent system so they can pay their reseachers to invent. Yes.

    Believe me: IBM does not want to pay its researchers anything. IBM wants a strong patent system because it likes to collect monopoly rents from product makers and protect its market share through litigation, rather than through making products that people actually want. It’s why any legacy company likes patents.

    The real question is this: why would consumers want patents?

  75. 6: >>my stomach stays in the upright
    >>using some of the money from idk

    The pigs just crashed and burned on the sidewalk.

  76. Now let’s see: would Apple want a strong patent system that would mean they would have to pay the inventors to make their products? No.

    Would IBM want a strong patent system so they can pay their reseachers to invent. Yes.

    Would regular people want whatever patent system results in being able to buy Apple’s products? Yes.

    Nice rant, by the way. I had no idea mild, issue-neutral sarcasm offended you so.

  77. “Turns one stomach to think of Moore sitting in the same chair as Judge Rich.”

    Moore is like infintely hotter than Rich ever was. Therefor, my stomach stays in the upright position.

    “Now let’s see: would Apple want a strong patent system that would mean they would have to pay the inventors to make their products? No.

    Would IBM want a strong patent system so they can pay their reseachers to invent. Yes.

    See but IBM makes products too. I’m pretty sure that, if it came right down to it, they could pay their mans to invent without a strong patent system by, idk, using some of the money from idk, selling things.

    Last time I checked Apple had quite a few patents.

  78. >>to leave Rader in charge. I’m sure that won’t >>sit well with them.

    Not the lack of integrity policy oriented ones like Moore. I am sure Newman would be fine with that. Lemonhead would be in the same tent with Moore of course. Turns one stomach to think of Moore sitting in the same chair as Judge Rich.

    Interestingly, the NY Times had an article about innovation and the difference between Apple and IBM. Apple the product company–we don’t invent we make a product from other’s inventions and IBM we invent with many Noble Prizes.

    Now let’s see: would Apple want a strong patent system that would mean they would have to pay the inventors to make their products? No.

    Would IBM want a strong patent system so they can pay their reseachers to invent. Yes.

    The policy oriented lack of integrity academics (not all of them) get their money from the likes of Apple not IBM.

  79. Some slap-down.

    They basically said the Federal Circuit would have done better to leave Rader in charge. I’m sure that won’t sit well with them.

  80. MM says: >>Some slap-down

    Slap! Slap! Slap! Quiet rust brian. You wouldn’t know a good SCOTUS decision from used toilet paper.

  81. Some slap-down

    Iza say that Bilski was a slap down alright – a slap down of Malcolm! The chuckles on that was worth the price of AI and Real Inventors etc.

  82. Perhaps if the Fed Cir recognized its station as in inferior court to the Supreme Court, it would avoid future slap downs similar to the one it was given in Bilski.

    Oh, yeah, Bilski. That was where the Federal Circuit got the result right but was told by the Supreme Court that the test they used to determine ineligibility was too clear.

    Some slap-down.

  83. A more comprehensive analysis of ACTA as it pertains to the US can be found at Terry Hart’s Copyhype blog. Unlike the EFF, Public Knowledge, Mr. Geist (who is Canadian, so why his opinion is viewed as even relevant to US law eludes me), and other sites who are rabidly opposed to ACTA by constantly presenting FUD and trying to create moral panics, Mr. Hart actually takes the time to constrast and compare the text of the 4/10 ACTA draft with current US law.

    For anyone interested in learning more about ACTA, I suggest that Mr. Hart’s blog is an excellent starting point. One may disagree with some of what he says, but at the very least he is one who has actually taken the time to analyze ACTA in detail.

  84. recognized its station as in inferior court to the Supreme Court

    Yeah, that be a re-occurin issue, specially as the mandate in creatining the court was to be the final say in patent law.

    What was Congress thinkin, creating a court of final say below the Supreme Court?

  85. where the Federal Circuit reaffirmed the Supreme Court’s holding in Boesch

    I find it comforting that the Fed Cir took the time to give its imprimatur to a decision by the Supreme Court. Perhaps if the Fed Cir recognized its station as in inferior court to the Supreme Court, it would avoid future slap downs similar to the one it was given in Bilski.

    Just saying.

  86. I sent for a new password on a site. And the email with a new password was sent to my email address. But it’s not there. And when I try to re email, my laptop goes crazy. It’s official you have finally taken control of everything in my life, including my emails.

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