Posts Tagged: "Authors"

On January 26, CBS broadcast the 63rd Annual Grammy Awards, which celebrated America’s finest recording artists and songwriters. Drawing a global audience with performances by super stars such as Aerosmith, Blake Shelton, and Ariana Grande, the event highlighted the music industry’s talents, innovation, and extraordinary financial success. Yet, what keeps the music flowing in a thriving marketplace is the fair operation of the performing rights license marketplace made possible by vigilant antitrust enforcement. The Department of Justice, Antitrust Division (the Department) is currently reviewing the consent decrees between the federal government and two performance rights organization behemoths: ASCAP (American Society of Composers, Authors, and Publishers) and BMI (Broadcast Music, Inc.). While conducting periodic reviews of antitrust law is smart policy, altering or scrapping the music decrees would be a mistake.

As one of about 46,000 registered practitioners in the United States, most of us are unfortunately too well acquainted with Section 101, 102, and 103 rejections from the U.S. Patent and Trademark Office (USPTO). But it may be surprising that most rejected design patent applications are not rejected under these sections. Instead, the least favorite number of the design patent practitioner is 112. While Section 112 rejections on utility applications are generally easily overcome, that is often not always the case with such rejections on design applications. Since there are only about 30,000 design applications issued each year, each of the 46,000 registered practitioners handle on average less than one design application per year! So, for those unfamiliar with the quirks of design patent practice, which is most of us, and since design patent applications have a relatively high allowance rate of 84% (see the USPTO Data Visualization Center/Design Data page, it might be tempting to rely on your patent draftsperson to prepare what they think are adequate drawings, copy the mostly boiler-plate specification language, and just file the application. But that can be a costly mistake.

The bipartisan STRONGER Patents Act of 2019 took an important step forward last week, as the Senate Judiciary Subcommittee on Intellectual Property held a hearing on the proposed legislation. Senators Tillis and Coons, the Subcommittee’s Chairman and Ranking Member, should be commended for holding the hearing and focusing attention on our patent system’s role in promoting American innovation and job creation. As several of the hearing witnesses made clear in their testimony, our patent system has been dangerously weakened in recent years through a series of judicial, legislative, and administrative changes. These changes have undermined patent rights and made it difficult for inventors to protect their innovations from infringement. Meanwhile, our foreign competitors, including China and Europe, have strengthened their patent rights. This has put us at a competitive disadvantage and helped contribute to a trend of both innovation and venture capital increasingly moving overseas. For example, the U.S. share of global venture capital fell from 66% in 2010 to 40% in 2018, while China’s share increased from 12% to 38% in the same time period. And despite more than a decade of economic growth following the Great Recession of 2007-2009, startup formation has failed to return to its pre-recession levels.

In my previous article for IP Watchdog, “An Awareness Crusade Against the Online Piracy of Books,” I delved into the growing problem of book piracy. I knew the harmful effects of this illegal activity all too well. My award-winning book, Profit and Prosper with Public Relations®:  Insider Secrets to Make You a Success, for which I have a U.S. trademark registration for the title and a registered copyright, was being offered as a free download without my knowledge or permission. In countless other situations, these unscrupulous sites don’t actually give away copies of people’s books at all, but instead, offer malware to unsuspecting participants, damaging an author’s name, reputation or brand. With this in mind, it is even more concerning that a new and disturbing trend is now emerging. I recently came upon a fake website that was advertising “free” copies of my book. It featured reader photos and comments indicating that they were endorsing my work. The people profiled appeared to be personally asking for these free copies.

There is a lot of focus—and rightly so—on China’s stealing of U.S. intellectual property (IP). Recently, Trump economic adviser Larry Kudlow stated on CNBC’s Squawk Box that China has stolen at least $600 billion in American IP. Additionally, one in five North American-based corporations on the CNBC Global CFO Council said that Chinese companies have stolen their IP within the last year. In all, 7 of the 23 companies surveyed said that Chinese firms have stolen from them over the past decade. The annual cost to the U.S. economy for these actions is estimated to be greater than $600 billion. While this is a serious matter that must continue to be addressed, domestic theft of U.S. IP is just as bad if not worse. It is easy to point fingers at China, given their track record, but small U.S. companies and inventors are not having their dreams extinguished by the Chinese. They are being victimized by Silicon Valley’s big tech companies, which make billions of dollars using their stolen IP.

Copyright is one of the most important intellectual property rights for any individual in America. The power to grant protection of copyrights “by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” is given to Congress in Article 1, Section 8 of the U.S. Constitution. As an author and computer programmer, I find that many of my colleagues misunderstand these rights and the protections that they afford. For this reason, I think it is important to clear up some misunderstandings in the recent IP Watchdog article, “A Question of Morals: The U.S. Approach to Plagiarism, ‘Moral Rights’, and Copyright Infringement” by Dave Davis.

This morning, the American Civil Liberties Union (ACLU), which will be represented in Wednesday’s hearing on Section 101 reform by Senior Legislative Counsel Kate Ruane, announced an urgent phone briefing for members of Congress and staff to address the contention that the “Proposed Patent Bill Would Jeopardize Health Care and Harm Medical Research.” The phone briefing, which all interested stakeholders should join, takes place today at 2:30 pm EST and will be jointly held by representatives from the ACLU, the Association for Molecular Pathology, a breast cancer survivor and patient, My Gene Counsel, and Invitae. Anyone who would like to listen should dial in to the number provided here. Below, Sherry Knowles, a well-known patent attorney, policy expert and also a breast cancer survivor, rebuts the arguments made in both the ACLU’s briefing announcement and associated letter to Congress on this topic.

I am Emil Malak, CEO of VoIP-Pal.com Inc., and a named inventor on two U.S. patents–Mobile Gateway: US 8,630,234 & Electrostatic Desalinization and Water Purification: US 8,016,993. To date, our company owns 22 issued and or allowed patents, which we developed over the past 15 years. Against all odds, we have been 100% successful in defending eight Inter Partes Reviews (IPRs): four from Apple, three from AT&T, and one from Unified Patents. We are presently in litigation against Apple, Verizon, AT&T, Twitter and Amazon. My experience with Voip-Pal has made it painfully clear that the deck has been stacked against companies who own IP being used without license by large tech companies. The America Invents Act (AIA), orchestrated by Silicon Valley, was designed to destroy the very ladder they climbed to ascend to their lofty perch, and make certain that they could not be challenged.

The U.S. Court of Appeals for the Federal Circuit recently affirmed the Patent Trial and Appeal Board’s (PTAB’s) decision upholding the patentability of Eli Lilly & Co.’s patent claims directed to reducing toxicity of a chemotherapy agent. In so holding, the Federal Circuit cited the Food and Drug Administration’s (FDA’s) skepticism of the efficacy of the methods as evidence supporting non-obviousness. See Neptune Generics, LLC v. Eli Lilly & Co., Nos. 2018-1288, 2018-1290, 2019 U.S. App. LEXIS 12492 (Fed. Cir. Apr. 26, 2019) (Before Moore, Wallach, and Hughes, J.) (Opinion for the Court, Moore, J.) Neptune Generics, LLC, Fresenius Kabi USA, LLC, and Mylan Laboratories Ltd. (collectively, the Petitioners) filed three petitions for inter partes review (IPR) against claims 1-22 of U.S. Patent No. 7,772,209 (the ?209 patent) owned by Eli Lilly & Co. The ?209 patent generally relates to methods of administering folic acid and a methylmalonic acid (MMA) lowering agent, such as vitamin B12, before administering pemetrexed disodium, a chemotherapy agent, to reduce the toxic effects of pemetrexed. The Board found that the ?209 patent was not unpatentable as obvious because it was not known in the art to pretreat pemetrexed with vitamin B12 along with folic acid and the skepticism of others, specifically the FDA, supported a conclusion of non-obviousness. The Federal Circuit found that substantial evidence supported the PTAB’s findings and affirmed.

Apple made headlines with its recent decision to close its stores in Frisco and my home town of Plano, Texas. The rumor is that Apple was afraid of the dreaded “patent troll.” However, Apple is not afraid of patent trolls. They are afraid of inventors. Whenever you hear the term patent troll, think of inventors. Inventors like my friend Bob Short, who solved an important technical problem in 1998 with his invention—a protocol that encrypts real-time audio and video transmissions. Apple wanted his technology for their FaceTime app, so they took it. Bob’s company, VirnetX, has spent six years trying to stop them and make them pay. Meanwhile Apple, Google, and other tech titans have spread propaganda and paid lawyers, academics, lobbyists, and politicians to destroy the U.S. patent system.

Patent professionals encounter many different personality types working with their colleagues and inventors. On one end, there are those who do great work but lack confidence in their abilities, and on the other there are those who overestimate their abilities and lack the skills to do an efficient job. Those who are competent, but lack confidence, often believe others are smarter and more capable then they are. This can be particularly problematic when that individual is an engineer or scientist hired by a company to invent, or even an independent inventor who toils for years thinking that what they are doing just isn’t good enough. Building confidence in those who have creative abilities seems like a difficult task, but it can be even more challenging to work with someone who believes they are great at what they do when they clearly lack abilities, or what they do create is a modest improvement, or even trivial advance that the law is unlikely to recognize as a patentable invention. These individuals typically are completely unaware that they lack the necessary skills, they overestimate their contributions, and often become extremely defensive or even angry when others do not seem to appreciate what they consider to be their own brilliance. This phenomenon is not uncommon and has even been given a name by two psychologists who studied how individuals at different ends of the spectrum see themselves and the value of their contributions—the Dunning-Kruger Effect. The Dunning–Kruger Effect is based on the principle that, in order to know you are bad at something you must have at least a moderate understanding of it. Thus, when an individual lacks ability in a certain area, they cannot recognize that they are lacking. That is, in order to recognize their deficiencies, they must have at least a moderate understanding of the subject.

It’s safe to say that most sectors will undergo significant disruption as a result of artificial intelligence (AI) technology. AI will not only disrupt our business models but it will also disrupt our legal framework for the creation and exploitation of intellectual property (IP) rights, giving rise to new IP challenges for those seeking to develop and deploy new AI systems.

Authors who are making a wage that is at or below the poverty line create a burdensome charge for readers? Well when you put it that way what Justice Breyer wrote just sounds stupid… There is a cost associated with discovering whether there are previous copyrights and securing permission to copy? Is Justice Breyer really suggesting that the grant of rights to copyright holders is too onerous for copycats and plagiarists to bear? What about this radical idea Justice Breyer – don’t copy what you didn’t create! If you cannot acquire the rights then just don’t copy, period… There is a reason judges, and in particular Justices of the Supreme Court, are not supposed to say more than is necessary to decide a case. Without consideration of a multitude of important issues seemingly innocuous statements can easily be absurd in the broader context, not to mention set bad precedent.

I think the long-term benefits to authors are greater than the downsides or the risks. But, like any time there’s a shakeup of an industry, there are short-term and long-term winners and losers. I’ll even use the term “digital disruption,” although it is way overused these days (and too often used as a poor excuse for infringing copyright). Digital technology is disrupting the industry as a whole. We had the same business models for the better part of at least a century, and while things are starting to change, we’re still largely operating as we did in the past, based on old business models with just a few tweaks. We haven’t fully evolved yet, and as a result we’re mostly seeing a little bit of the downside. Whenever there’s a disruption in business models, someone is negatively affected. Unfortunately, here it is the authors, and creators generally. And that’s because creators in these industries tend to have the least bargaining power and they tend to be a line item in a budget where there is some discretion.