Patentlyo Bits and Bytes by Anthony McCain

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About Anthony McCain

Anthony McCain is a law student at Mizzou where he is focusing on intellectual property; He has a background in mechanical engineering. anthony.mccain@patentlyo.com

27 thoughts on “Patentlyo Bits and Bytes by Anthony McCain

  1. 3

    Really? To me, Cloud Gate is quite distinctive:

    link to en.wikipedia.org

    Now, whether someone can sue anyone in China for any type of infringement (including patent) is a different story.

    Regardless, the Chinese are famous copycats, going back years upon years. In some stores where I live, they don’t let you take pictures of glass or other art, because the Chinese take pictures and reproduce the object. They then import it at 1/3 the price.

    1. 3.1

      PG: the Chinese are famous copycats, going back years upon years. In some stores where I live, they don’t let you take pictures of glass or other art, because the Chinese take pictures and reproduce the object

      There’s nothing quite like unabashed wholesale stereotyping of a massive class of people.

      Just so we’re clear on the stakes here: is the idea that for the next century or two (pending Disney’s lobbying stamina) nobody is free to make a large reflective blob without getting Anish Kapoor’s permission first?

      1. 3.1.1

        Because Malcolm never labels entire classes of people anything like g-g-g-grifters or the such…

        /off sardonic bemusement

      2. 3.1.2

        Just so we’re clear on the stakes here: is the idea that for the next century or two (pending Disney’s lobbying stamina) nobody is free to make a large reflective blob without getting Anish Kapoor’s permission first?

        Uh, yes, at least if the large reflective blob is as close to Kapoor’s Cloud Gate sculpture as the Chinese one appears to be. However, the actual term depends on Chinese copyright law (rather than Disney’s), which presumably at least provides for the Berne Convention’s life-of-the-author-plus-50-years requirement. I don’t like the near-perpetual copyright terms either, but I don’t think that changes the fact that this is probably copyright infringement.

          1. 3.1.2.1.1

            What difference does that make? No, the Chinese sculpture and its installation are not identical, but that’s not the standard for copyright infringement.

            1. 3.1.2.1.1.1

              the Chinese sculpture and its installation are not identical, but that’s not the standard for copyright infringement.

              The standard is “substantial similarity.”

              For a sculpture whose appeal lies primarily in its reflective/interactive nature, there are several substantial differences between this sculpture and the Chicago sculpture: the shape is different, you cant walk under it, the location is different (nobody who is familiar with the location of either would confuse the two sculptures), and the Chinese sculpture includes smaller reflective globules.

              The Mona Lisa didn’t turn painters of sitting smiling women with their hands folded on their laps into copyright infringers. And there were other large reflective sculptures before this shiny bean.

              Minimalist artists seeking to assert their copyrights against anything “similar” should be careful about what they wish for …

    2. 3.2

      Dear PatentBob,

      The rise of China’s economy has led to an increase in IPR disputes involving especially patents related to communication industry and copyrights of movies and TV dramas.

      As you may heard about that, Chinese companies’ cost of production is becoming much higher than it used to be(according to some reports it is getting close to that of U.S.), more and more manufactories are moving to India or south-east Asian countries, which means that now they are not able to offer at 1/3 the price anymore. And

      what are they doing? They are rushing to file more and more patents and even many of the applicants don’t know what a patent is.

      1. 3.2.1

        “Many of the applicants don’t know what a patent is.” — regarding Chinese applications.

        Got me to thinking, since this is commie land, doesn’t the state own the inventions of the masses?

        How do we know these named inventors are really inventors? Isn’t it doctrine that only commie bosses can invent? Everyone else just takes orders.

        Communisms is confusing.

        1. 3.2.1.1

          Communism is NOT confusing.

          You are trying to apply the concept to a version applied.

          This is not a pipe.

        2. 3.2.1.2

          Dear Ned Heller,

          Haha, your thinking is a little bit interesting. The title, ownership and interest of a patent or patent application belong to the applicant(s) or the assignee(s) based on who really making the invention or buying it. False inventors may cause the patent invalid, just like in the U.S..

          And applicants can apply for state patent funding to help them apply patents all over the world. The good news is, if their applications get issued in the U.S., the applicants will get high extra awards of money, and they can use this money to apply more patents to strengthen their market position.

          Of course, State owned companies can apply for patents too, given that they are rarely be sued in the area of mainland, so patents are not that important to them unless those who want to expand their oversea markets, such as ZTE, you may heard of it. Many Chinese attorneys prefer not to go after State owned companies, because the law suit could be running very long and tough, and the reward is very hard to get.

          Since the internal competition among local rivals is very serious, companies have to obtain more patents to protect themselves from local rivals and even other rivals all over the world. Most of the patent applications come from those big and rich companies, now they are ranked in the most appling list in different patent offices.

        3. 3.2.1.3

          Dear Ned Heller,

          “Isn’t it doctrine that only commie bosses can invent? Everyone else just takes orders.”

          Your comments also got me thinking, where are you getting such idea? Haha, let me guess, you must read a very old newspaper, right? At least as old as twenty years. hahah~

          1. 3.2.1.3.1

            Nah, Mark, I have commie friends who really do not like even the idea of private property. So, how do patents work in such a society? Well inventors gets “gold stars,” or some such.

            Obviously, China has “progressed.” My friends would say, “regressed.” But it is good to know that the trajectory in China is in the “right” direction.

                1. Politically, philosophically, historically, factually, and economically, I am right.

                  You are new here. You will come to see that this is so, and not because I say it is so, but I say, because it is so.

            1. 3.2.1.3.1.2

              Dear Ned Heller,

              Oh, my goodness, how can I say to your friends? May be they are a sort of commie not as the same as those in China. People here are entitled to own, possess, make use of different kinds of private properties, which of course they need to work really hard to get. The only property people can’t “own” is the ownership of the land, but they invent a tricky thing that people can have the ownership of the house instead which stands on the land and the right of usage to the land, which you could pay the rent for such usage according to the real property law. When people buy a house (normally an apartment), the price and the rent are mixed as a whole and not identified specificly.

              Patent system works ok so far in such a society. The government starts to pay attention to patent rights, they have to look forward to the future may be one day this land can not afford manufacturing business. Companies and individuals are filing more and more patents for their own benifits.

              NPEs emerge quickly, and they buy good quality patent families from foreign brokers or even directly from big company like Interdigital, and seek for roalties from companies.

              The problem that people complaint about most is the damage compensation is very limited, only affordable for attorney fees at most of the times, because there is no discovery proceeding to help plaintiffs prove their market loss caused by the infringement. However, patent attorneys have been recognized as one of the most promising carreers.

              1. 3.2.1.3.1.2.1

                Yeah, discovery goes hand in hand with real law and real, independent judges who are appointed for life and whose compensation cannot be reduced.

                A functioning patent system requires a functioning court system. There is a reason why America, England and Germany historically lead the world in innovation. We had both patents and a functioning court system.

                As to my commie friends, mostly anarchists, they live in some idealized reality — some utopian dream. Everyone has a better idea, and everyone wants their idea to be tried first.

                Did you know the commies and the anarchists went to war against each other in Spain during the civil war even while the forces of fascism closed in? The problem with communism is that it really cannot be democratic. In the end, one group fights the other ’til one prevails. Stalin-Trotsky comes to mind. The whole fiasco with Gorbachev and the central committee. Recall also that Robespierre began to guillotine fellow members of the revolution.

                So, China may have a patent system, but Chinese inventors are only going to make money on their patents in the US, England and Germany.

                1. Dear Ned Heller,

                  I completely agree with you that a functioning patent system requires a functioning court system. And we are taught that the advanced legal systems are Common Law System which represented by the U.S. and England, and Civil Law System which represented by Germany. Actually, CN MPEP is learned from that of EPO, and the patent law principles and doctrines Judges use to adjudicate cases come from the U.S. case law and evolves accordingly.

                  I don’t know they were at war in history, I am not a commie, and I feel bad about that, but sometimes I just think people should relieve their pain and let the bad memories go.

                  Many people here hold the belief of Democracy, but they also know that changes need time.

                2. And by functioning court system, here in the U.S. we mean a court of limited power, constrained by the Constitution, and respectful of the separation of powers.

                  Ned often forgets that part.

  2. 2

    The Link to the IPKat on the issue of “partial priority”gives readers insight into the perils of “self-collision” under the EPC. Article 54(3) of the EPC is the provision that allows novelty attacks based on earlier filed patent applications at the EPO, ones that were not yet A-published at the date of the claim in view.

    Other jurisdictions do not allow Applicant’s own earlier filings to be used in this way as novelty attacks. So Applicants from outside Europe are routinely caught out by this provision of the EPC, and are dismayed to discover that their own earlier filings can deprive their claims of novelty.

    In today’s news, the EPO’s “Enlarged Board of Appeal” has been asked to give its verdict on five Questions referred to it. It will take the Enlarged Board some months to arrive at its verdict. Soon there will open a window of opportunity for the filing at the EBA of Amicus Curiae briefs. I expect there to be many and that at least the AIPLA will file one.

    1. 2.1

      Max, if a claim is not supported in a priority application, then an intervening publication, even the priority document’s own publication, is available as prior art in the US against that claim. This has been the law for a very long time. In fact, I think the EPO adopted the idea from a Federal Circuit case.

      Of course, prior to the AIA, one could swear behind the reference.

      Regarding multiple priorities for alternatively claimed subject matter, that makes sense. But I would require such claims to be divided into multiple claims so that each claim has only one priority.

      You might want to check out what happened to Apple’s design patent in a reexamination. link to ipwatchdog.com They lost priority, so intervening Apple designs are now available as prior art.

      1. 2.1.1

        But I would require such claims to be divided into multiple claims so that each claim has only one priority.

        What is the basis for this?

        You do realize that the AIA did not remove the prior law, and that the prior law remains in effect for those items under its domain, right?

      2. 2.1.2

        Thanks Ned but what I (MD) am on about is the situation you (NH) find yourself in, as PCT applicant, in the following chronology of events:

        MD files US pro. One week later NH files US pro on pretty much the same invention. We both file PCT exactly one year after our respective prio dates. We both include in the PCT papers wider claims and more disclosure than in our respective US priority date filings.

        Six months later, we both then see our respective WO document published (18 months after our respective US priority dates). These respective WO publications are the first time either of us has disclosed anything of the content to anybody except the PTO.

        We both enter the EPO, where the Examiner informs you that all your claims lack novelty over the disclosure content of the MD WO publication.

        Your disclosure dates to the PTO and mine are interlaced. Some of your claims might be entitled to your US priority date, others not. We are set up for a struggle between us, as to who gets what to issue, in the FtF environment that prevails, in Europe. Your priority filing ante-Dates my PCT filing, so what is in your prio doc can blow away the novelty of anything in my PCT not entitled to my own US prio date.

        It could get messy. In fact, it often does get messy. The EBA is now tasked with coming up with a clarification of the law that has evolved up to now, under the EPC. No easy task.

        Given that the USA has gone over to First to File, I think that similar priority contests are inevitable, in the fullness of time, also in the USA.

  3. 1

    Jonathan Jones: Anish Kapoor Livid About China Stealing His Big Bean Sculpture

    Pretty sure it’s just a similar large reflecting sculpture with similar properties and not a “copy”.

    That’s the risk one takes when one makes minimal art: copyright enforcement becomes more difficult. He could have made a big shiny silver rabbit but then he’d have Jeff Koons to answer to.

    Are the trustees of John Cage’s works scrambling about sueing performers for copyright infringement of 0’00” (“In a situation provided with maximum amplification (no feedback), perform a disciplined action.”)? I kinda doubt they’d have much luck absent an advertisement naming the piece.

    1. 1.1

      “John Cage’s works scrambling about sueing performers for copyright infringement of 0’00”

      4’33”?

      I’d have paid real money to listen to a full uninterrupted 4:33 performance when my kids were tiny and pugnacious.

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