You may recall that a few months back we wrote about LARPing.org being sued by a company called Global Archery for trademark and patent infringement. At issue was LARPing.org, which is a hobby site for live action roleplayers, selling foam-tipped arrows acquired through a German manufacturer. Global Archery claims that those arrows infringed on a patent it owns and that LARPing.org's use of Google Ad-Words infringed on its trademarks. While both of those charges seemed destined for loserdom, as the German company would be the patent infringers and the Google Ad-Words thing almost never works, the fact that Global Archery was relatively big and LARPing.org is tiny meant that perhaps that would be enough to tip the scales. With that in mind, Newegg's Lee Cheng jumped into the fray, helping to back LARPing.org's legal efforts in defending itself.
Today we're left to wonder exactly how necessary that even was, given that the court has tossed Global Archery's suit on grounds that it has no jurisdiction.
US District Judge Joseph Van Bokkelen didn't rule on that request, or make any ruling on the case's merits. Two weeks ago, Van Bokkelen issued a 7-page opinion finding that Gwyther's ties to the state of Indiana were so minimal that his court didn't have jurisdiction over the case.
We need to take a step back for a moment. Almost immediately after Cheng jumped into all of this, Global Archery dropped the patent portion of its suit. It claims that it was then that the prior art for the arrows LARPing.org was reselling was presented to them, except that Gwyther had presented it long before. Instead, this was almost certainly a patent troll realizing its victim had a larger backing and retreating. That left the Google Ad-Words trademark portion of the suit.
For that portion, Gwyther informed the court that he runs LARPing.org out of his home in Seattle, that he had never been to Indiana (where the suit was filed), and that his sales in Indiana amounted to something like $9,000. Global Archery attempted to argue that Gwyther had not questioned the court's jurisdiction properly, but Judge Van Bokkelen wasn't buying it.
The Court concludes Defendant did not waive or forfeit his personal jurisdiction defense. As for the merits of this defense, Plaintiff bears the burden of establishing that the Court has personal jurisdiction over Defendant. Advanced Tactical Ordnance Sys.’s, LLC v. Real Action Paintball, Inc., 751 F.3d 796, 799 (7th Cir. 2014). In its personal jurisdiction briefs, Plaintiff has not presented sufficient evidence to counter Defendant’s claims, and Plaintiff’s argument regarding personal jurisdiction is limited to a footnote and the last half of the last paragraph of the last brief. In any event, Plaintiff concedes that the Court lacks personal jurisdiction over Defendant, absent waiver.
And, thus, the suit is now tossed. Gwyther has said he hopes that this will be the end of it and that Global Archery will now leave his small hobby site alone. That certainly is what it should do, rather than giving another court another opportunity to smack it around again.
This month features not only a stupid patent, but also a stupid trademark to go along with it.
My Health, Inc. is the owner of U.S. Patent No. 6,612,985, which is entitled "Method and system for monitoring and treating a patient." My Health also holds a trademark in the term "My Health." My Health claims that it is "the only person or entity entitled to use... ‘My Health' in commerce."
Since getting patent and trademark rights, My Health has been pretty active in federal court. It has sued at least 30 companies for patent infringement and has been involved in another three lawsuits involving allegations of trademark infringement. But regardless of what type of case it is, we think both the patent and trademark are stupid.
First, My Health's stupid patent. The patent is generally directed to "a method and system for monitoring and treating a patient who has one or more diagnosed conditions and is located at a remote location from a treatment processing system." If that sounds mundane, that's because it is.
Here is claim 1 of the patent, annotated for clarity:
1. A method for tracking compliance with treatment guidelines, the method comprising:
[a] determining a current assessment of one or more diagnosed conditions in a patient based on data about each of the diagnosed conditions from the patient who is at a remote location and on one or more assessment guidelines for each of the diagnosed conditions;
[b] updating an existing treatment plan for each of the diagnosed conditions based on the existing treatment plan, the current assessment, and on one or more treatment guidelines for each of the diagnosed conditions to generate an updated treatment plan for each of the diagnosed conditions;
[c] reviewing the updated treatment plan for each of the diagnosed conditions;
[d] determining if one or more changes are needed to the reviewed treatment plan for each of the diagnosed conditions;
[e] changing the reviewed treatment plan if the one or more changes are determined to be needed;
[f] providing the patient with the reviewed treatment plan for each of the diagnosed conditions; and
[g] generating and providing compliance data based on the updated treatment plan and the reviewed treatment plan for each of the diagnosed conditions.
This claim is essentially TeleHealth, with the addition of "generating and providing compliance data" at the end. This patent is almost surely invalid under the Supreme Court's decision in Alice, which held that abstract ideas are not patentable, absent something more. Here, My Health is claiming little more than the idea of remotely diagnosing and treating a medical patient. This is not a new idea, and the patent doesn't even claim how to do it, but only the idea of doing it (albeit with a bunch of patent-speak to make it look complicated). This 1998 episode of Star Trek: Deep Space Nine shows how the ideas in this patent are routine and conventional enough to be a plotline in a TV series.
We're not the first to reach the conclusion the patent is invalid. In a lawsuit from last year, a defendant sued by My Health asked the court to rule the patent invalid. Unfortunately, the court said it was too early in the case to decide that issue and the parties later settled.
Along with being abstract, we doubt that this patent described anything new or nonobvious in 2001. In fact, the Patent and Trademark Office has twiceagreed that there are serious problems with the patent's validity in light of what people already knew and were doing in 2001. It instituted 2 different "inter partes" reviews, meaning on two different occasions someone was able to show that there was a reasonable likelihood that the claims were invalid. But on both occasions, the parties settled before the Patent and Trademark Office decided whether the patents should be cancelled.
My Health recently sued again based on its stupid patent, and we wouldn't be surprised if this case also settles. By settling quickly with various parties before a court can make a decision as to the merits of it claims, My Health can continue to collect on its stupid patent.
But it's not only a stupid patent that's causing problems. My Health's stupid trademark is prompting a whole other stream of litigation. Not surprisingly, plenty of other companies have used the term "My Health" to describe services that provide health information to their users. So My Health is going after them, too.
In February 2015, My Health sued General Electric (GE), and alleged that GE's use of the term "myHealth" in connection with its online employee portal infringed My Health's trademark. My Health claimed that it "invested substantial time, money, and goodwill in advertising and promoting [My Health] in commerce and in the healthcare and technological services sectors." My Health further claimed that "GE is attempting to use [myHealth]...in order to take advantage of and capitalize on My Health's efforts to market and popularize My Health."
Given these statements, you might think My Health was an actual company with an actual business to protect. Indeed, My Health was required—under the penalty of perjury—to claim that it was using the term "My Health" in commerce in order to register it at the Patent and Trademark Office.
However, in February of this year GE told a very different story. According to a GE's motion for summary judgment (asking the court to rule in its favor as a matter of law), My Health "did not [have] a single document showing the actual sale of any goods or services under the purported MY HEATLH mark." That is, from the evidence GE was able to gather, "[My Health] simply obtained a patent, obtained a trademark registration, and proceeded to extract settlements based on threats of infringement litigation."
Beyond GE's claims, this is a trademark that never should have issued. Using the term "my health" to describe products and services related to—you guessed it—your health, is something the entire world should be able to do without fear of a trademark lawsuit. In fact, GE presented evidence that it had been using the term "myHealth" to describe its employee portal at least three years before My Health even applied for the trademark. (You can see GE's use yourself at the Internet Archive's Wayback Machine). It's not surprising GE was using this term: it is a completely predictable way to describe GE's service.
From what we can tell, My Health didn't oppose GE's motion. Instead, My Health settled with GE and the court never determined whether My Health was even entitled to hold a trademark in the term "My Health." This is unfortunate, because if My Health's patent infringement activity is any indication, My Health will continue to assert its trademark despite the serious doubts about its validity raised by GE.
My Health, armed with a stupid patent and a stupid trademark, has sued numerous companies, imposing costs on both those companies and the public at large. For that, it more than deserves this month's award.
As India has been revamping its patent policy, there had been some serious concerns about broadening patent subject matter eligibility to include software and business methods. Earlier this year, however, the Indian Patent Office clarified that it would not allow patenting of just straight software patents. And that's good.
But, it appears that that overall push to expand patents in India is still on a dangerous path, based mainly on some longstanding, but flat out incorrect, myths about patents and their impact on innovation. That link is to a story by Anubha Sinha, noting that it's clear that the new plans are designed to benefit giant corporations at the expense of the public, in part by sticking to the myth that if patents are good for innovation, stronger patents must be better -- ignoring that restricting the rights of the public has a real cost.
Delving briefly into the subject of IPRs, it is a matter of principle that a balanced intellectual property (IP) regime, i.e. a model that balances rights with adequate limitations/exceptions, contributes optimally to the holistic development and growth of the nation. Limitations or exceptions are flexibilities in the law, which cut down absolute monopoly conferred by IPRs, and ensure that use and sharing of knowledge for purposes such as research, education and access to medicines are not overridden by IP rightholders’ claims. The Trade-Related Aspects of Intellectual Property Rights agreement (TRIPS), which is the largest international agreement governing countries’ IPR regimes also promotes the use of these flexibilities to build balanced regimes. The policy does occasionally state its commitment to the TRIPS agreement and the Doha Declaration, but does not commit or spell out any new concrete steps. Thus, it fails to show any seriousness about upholding and promoting a ‘balanced’ regime – in stark comparison to the detailed and surgical manner in which it aims to raise awareness about IPRs and commercialise them.
This is unfortunate -- and it's also a reason why I've argued we need to move away from calling them "limitations and exceptions" and towards what they actually are: the public's rights. The intellectual property laws, themselves, are "limitations and exceptions" on the public's right to use these things.
Unfortunately, when you don't have much experience with these issues, and you just think that all patents are good and spur innovation, you miss out on how much damage to innovation and the public can be done with a patent regime that goes too far in restricting the public's rights.
The other big myth is that "patents = innovation." As we've noted for years, a rather unfortunate fact is that politicians (and, too often, academics) without a way to accurately "measure innovation" fall back on the easiest thing they can do: count patents. But the number of patents is not a proxy for innovation and in fact is quite misleading. But, because patents are countable, it becomes a metric that everyone keys off of. And we've covered how China, for one, has recently embraced a massive increase in patenting, proclaiming to the US that it's no longer a "pirate nation." But, of course, in the process, it's turned into a giant patent troll, using those patents to punish foreign competitors. But the actual patents that China has been getting, even as the numbers go way up, have been mostly junk.
But, as Sinha notes, it appears that India got the exact wrong message from China:
It is likely that the idea to use the IPR policy as a tool for ‘IPR indoctrination’ to result in staggering IPR generation came to the Indian government from their Chinese counterparts. In 1995, China started conducting elaborate training of its officers, researchers and students to popularise a generation of IPRs and last year the country received 10 lakh patent filings – an international record. At the conference, the officials were in awe of the Chinese statistics, and they were confident of catching up in the next few years. This despite the fact that in China, the race to patent innovations has only led to a proliferation of low value innovations in high numbers. Less than 1% of China’s patents are of intermediate or high value. Thus, China despite its high patent filings shows only a weak innovative performance. Globally, there is enough evidence to show that there is no positive correlation between patent filings and cumulative innovative performance of a country.
Unfortunately, this kind of blind belief that "patents = innovation" may serve to do severe damage to both the public and actual innovation in India. There are lots of (reasonable) concerns about high prices for medicines, but it could also harm India's pharmaceutical industry, which has actually thrived on being able to produce generic drugs that compete globally. Increasing a patent regime would actually stifle that industry. One hopes that at least someone who actually understands how innovation works can get through to the Indian government before it makes a big, big mistake.
It wasn't enough that Creative Labs/Creative Technology spent March 24th suing almost every big name in the cell phone business for patent infringement. These lawsuits, all filed in the East Texas patent troll playground, asserted the same thing: that any smartphone containing a music app (which is every smartphone produced) violates the patent it was granted in 2005 to use in conjunction with its mp3 players. "Venue is proper" because smartphones are sold in Texas, even if the plaintiffs are located in California and Singapore, respectively.
That wasn't all Creative Technology did. It also filed a complaint with the US International Trade Commission seeking to block the import of smartphones from manufacturers like Sony, LG, BlackBerry, Samsung, etc. under the theory that every imported phone contains patent-infringing software. The ITC has opened an investigation of Creative's allegations, which will at least hold off any potential import blocks until it reaches a decision. The ITC's summary of Creative's patent claims clearly shows how broad the patent's potential coverage is -- and (inadvertently) why it should be invalidated.
The products at issue in the investigation are portable electronic devices, such as smart phones, with the capability of playing stored media files selected by a user from a hierarchical display.
Creative Labs started its patent war early, suing Apple back in 2006 for "violating" its patent with its iPods. Apple ultimately settled with Creative for $100 million -- not only encouraging Creative's trolling ways but also moving Apple towards more aggressive acquisition (and defense) of patents, even for something truly obvious like "rounded corners."
Google has decided it's not going to wait around for the ITC or east Texas courts to come to the wrong conclusions. It's gone on the offensive, seeking declaratory judgment that it does not violate Creative's broad patent. Every company sued by Creative on March 24th sells Android phones that contain Google's "Play Music" app. On behalf of its customers (and its own Motorola Mobility, which was also sued), Google wants Creative's BS patent's power neutered.
No version of the Google Play Music app directly or indirectly infringes any claim of the ’433 patent. No third party infringes any claim of the ’433 patent by using the Google Play Music app in other devices. Google has not caused, directed, requested, or facilitated any such infringement, and has not had any specific intent to do so. The Google Play Music app is not designed for use in any combination that would infringe any claim of the ’433 patent. Rather, the Google Play Music app has substantial uses that do not infringe any claim of the ’433 patent.
[...]
An actual and justiciable controversy therefore exists between Google and Creative regarding whether the Google Play Music app infringes or has infringed the ’433 patent. A judicial declaration is necessary to determine the respective rights of the parties regarding the ’433 patent. Google seeks a judgment declaring that the Google Play Music app does not directly or indirectly infringe any claim of the ’433 patent.
Creative is asking for a substantial payout for something as obvious as selecting and adding songs to a playlist. The claim specified in its lawsuits is this one:
The method of selecting a track as recited in claim 1 wherein the accessing at least one track comprises selecting an item in the third display screen and adding at least one track associated with the selected item to a playlist.
If Google's receives a judgment in its favor, it will at least protect the cell phone manufacturers from having to deal with claims related to its "Music Play" app. For all of those that load their own music apps on their phones (which, again, is all of them), they're still on their own when it comes to fending off Creative's rent-seeking.
The market has changed and left Creative behind. Back when it sued Apple, it at least had a competing mp3 player on the market. Now, it has nothing even remotely related to smartphones, but still thinks it's entitled to a cut of those profits because it made music players once upon a time. And it's so desperate to leech off viable companies that it's willing to abuse more than a friendly district court to achieve its ends.
Stories about copying turn up a lot on Techdirt. That's largely as a consequence of two factors. First, because the Internet is a copying machine -- it works by repeatedly copying bits as they move around the globe -- and the more it permeates today's world, the more it places copying at the heart of modern life. Secondly, it's because the copyright industries hate unauthorized copies of material -- which explains why they have come to hate the Internet. It also explains why they spend so much of their time lobbying for ever-more punitive laws to stop that copying. And even though they have been successful in bringing in highly-damaging laws -- of which the DMCA is probably the most pernicious -- they have failed to stop the unauthorized copies.
But if you can't stop people copying files, how about stopping them from doing anything useful with them? That seems to be the idea behind an IBM patent application spotted by TorrentFreak, which it summarizes as follows:
Simply titled "Copyright Infringement Prevention," the patent's main goal is to 'restrict' the functionality of printers, so they only process jobs when the person who’s printing them has permission to do so.
It works as follows. When a printer receives a print job, it parses the content for potential copyrighted material. If there is a match, it won't copy or print anything unless the person in question has authorization.
As with so many patents, the idea is simple to the point of triviality: only a company more concerned about the quantity of its patents, rather than their quality, would have bothered to file an application. Nonetheless, it's a troubling move, because it helps legitimize the idea that everything we do -- even printing a document -- has to be checked for possible infringements before it can be authorized and executed.
But why stop with printers? We've already seen Microsoft's Protected Media Path for video, a "feature" that was introduced with Windows Vista; it's easy to imagine something a little more active that matches the material you want to view or listen to against a database of permissions before displaying or playing it. And how about a keyboard that checks text as you type it for possible copyright infringements and for URLs that have been blocked by copyright holders?
There is a popular belief that the computer in Stanley Kubrick's "2001: A Space Odyssey" was named "HAL" after IBM, by replacing each letter in the company name with its predecessor. That's apocryphal, but with this latest patent application IBM is certainly moving squarely into HAL territory.
Wheat blast may not be uppermost in the minds of many Techdirt readers, but as the following explains, it's a serious plant disease that is spreading around the world:
Wheat blast is a fearsome fungal disease of wheat. It was first discovered in Paraná State of Brazil in 1985. It spread rapidly to other South American countries such as Colombia, Bolivia, Paraguay, and Argentina, where it infects up to 3 million hectares and causes serious crop losses. Wheat blast was also detected in Kentucky, USA, in 2011.
Wheat blast is caused by a fungus known as Magnaporthe oryzae although scientists are still debating its exact identity. There is a risk that wheat blast could expand beyond South America and threaten food security in wheat growing areas in Asia and Africa.
That comes from an interesting site called Open Wheat Blast. It's been set up by a group of scientists who want to help combat the threat of wheat blast. And as their name suggests, they hope to do that by sharing data as widely as possible:
To rapidly respond to this emergency, our team is making genetic data for the wheat blast pathogen available via this website and we are inviting others to do the same. Our goal is that the OpenWheatBlast website will provide a hub for information, collaboration and comment. Collectively, we can better exploit the genetic sequences and answer important questions about the nature of the pathogen and disease.
That's such a self-evidently sensible thing to do, the obvious question to ask is: why isn't this done routinely -- and for human diseases too? In fact, a couple of months ago, 33 global health bodies signed a "Statement on data sharing in public health emergencies," with particular emphasis on sharing data about the Zika virus:
The arguments for sharing data, and the consequences of not doing so, have been thrown into stark relief by the Ebola and Zika outbreaks.
In the context of a public health emergency of international concern, there is an imperative on all parties to make any information available that might have value in combatting the crisis.
We are committed to working in partnership to ensure that the global response to public health emergencies is informed by the best available research evidence and data
That declaration built on a "consensus statement" that came out of World Health Organization consultation on "Developing global norms for sharing data and results during public health emergencies" in September 2015. One of the summary points spells out the key issue holding back open sharing of key information:
WHO seeks a paradigm shift in the approach to information sharing in emergencies, from one limited by embargoes set for publication timelines, to open sharing using modern fit-for-purpose pre-publication platforms. Researchers, journals and funders will need to engage fully for this paradigm shift to occur.
As that makes clear, a big problem is the way that results are published, with researchers and publishers more interested in keeping their results under wraps for a while than spreading them widely and quickly. And there's another issue too:
Patents on natural genome sequences could be inhibitory for further research and product development. Research entities should exercise discretion in patenting and licensing genome-related inventions so as not to inhibit product development and to ensure appropriate benefit sharing.
It's a rather sad state of affairs when publishing concerns and patents are getting in the way of producing treatments and cures for serious human diseases that could improve the lives of millions of people. Protecting crops from wheat blast is, of course, welcome, but is it really the best we can do?
So we already wrote about the Australian government's Productivity Commission's Draft Report on Intellectual Property Arrangements, talking about what was said about copyright law, but the report also goes into other areas of intellectual property as well, with some pretty good ideas on patent law as well (on this one I think they could go even further, but most of the recommendations in the report are a good start).
Once again, they offer up a nice infographic demonstrating the key points, which focuses on the serious problems of allowing patents on obvious ideas:
The Productivity Commission clearly recognizes that too many patents stifle innovation. In fact, they note that the only time patents really should be issued are in cases where those inventions would not occur without that incentive. And thus, since so much public policy around innovation always seems to focus on figuring out ways to increase patent numbers, the authors of the report recognize that patent policy is probably harming, not helping innovation:
Indeed, it appears to have become accepted wisdom that because patenting plays some role in promoting innovation, more and stronger patents are always better. But research reveals that greater patenting activity is not always associated with more innovation and that a non-trivial number of patented inventions have low social value, or would have occurred anyway.
Low-value patents impede innovation by frustrating the efforts of follow-on innovators and researchers. In some cases, low-value patents can be used as a strategic tool for stalling or excluding market entry, and can contribute to ‘patent thickets’, which potential market entrants must ‘hack’ their way through in order to compete in a particular technology space.
And thus, they suggest that Australia's entire patent system should be rethought and refocused towards trying to encourage things that are socially beneficial. That is, the system should be set up not with the inventors as the sole focus, but rather what will lead to the greatest possible public benefit. And the failure to do so is creating "substantial costs" on the public.
While the incidence of some low–value patents does not come as a surprise, a multitude of such patents imposes substantial costs on the community. Low-value patents impede innovation by frustrating the efforts of follow–on innovators and researchers.
To fix this, they have a few suggestions -- all of which seem worthwhile. First, they say the bar is way too low for granting patents, so Australia should raise the bar for what's considered "inventive." They suggest the standard should be changed to if the invention or solution "would have been obvious for a person skilled in the art to try with a reasonable expectation of success." They even consider going beyond that, but recognize that some patent holders outside of Australia may freak out at such a suggestion and avoid the Australian market.
The second suggestion is giving an "overarching objective" to patent law, which examiners can use as a sort of guiding light or touchstone. Basically, allow Australia to reject patents by arguing that granting such patents would go against the public interest.
The objects clause should describe the purposes of the legislation as being to enhance the wellbeing of Australians by providing patent protection to socially valuable innovations that would not have otherwise occurred and by promoting the dissemination of technology. In doing so, the patent system should balance the interests of patent applicants and patent owners, the users of technology — including follow–on innovators and researchers — and Australian society as a whole.
The Australian Government should amend the Patents Act such that, when making a decision in relation to a patent application or an existing patent, the Commissioner of Patents and the Courts must have regard to the objects of the Patents Act.
That would be a big and wonderful change to the patent system.
Next up, they suggest increasing the fees associated with patents (both for applying and for renewals -- which would escalate), which acts as a mechanism to better ensure that a patent is valuable (i.e., making it less worthwhile if the patent holder isn't actually going to do something with it). It also encourages patent holders to stop renewing the patent and push the info into the public domain sooner if the patent itself is no longer making an economic return.
The report doesn't spend much time on patent trolls, noting that they're not a big problem down under, and suggests that the existing "loser pays" litigation structure probably helps keep patent trolling at a lower level there. At the very least, that seems like an important data point for folks here in the US looking to add a "loser pays" provision in patent reform.
How about business method and software (BM&S) patents -- which make up many of the most abused patents in the US? The Commission is not impressed by the arguments in favor of such patents and suggests making those things unpatentable. They point out that there's little evidence that such patents encourage innovation, and that most innovation associated with them almost certainly would have happened without the patents, because the focus was on building products (and that there would be first mover advantages for those who got there first, so the copycat issue isn't that big a deal). Furthermore, they point out that BM&S patents can often hold back important follow-on innovations. Quoting Nobel prize winning economist Eric Maskin, the report notes:
Specifically, in the software industry, progress is highly sequential: progress is typically made through a large number of small steps, each building on the previous ones. If one of those steps is patentable, then the patent holder can effectively block (or at least slow down) subsequent progress by setting high license fees. … Thus, in an industry with highly sequential innovation, it may be better for society to scrap patents altogether than try to tighten them.
And they conclude:
On balance, the Commission considers it unlikely that granting patents in the area of BM&S increases the welfare of the community. BM&S patents likely compensate activity that would have occurred in any event (are nonadditional) and reward low– (or even no–) value innovations. BM&S patents can also frustrate would–be competitors and follow–on innovators. While broader changes to patents, particularly around the inventive step and dispensing with innovation patents (chapters 6 and 7), may ‘knock out’ a large share of BM&S patents, the Commission still considers that there is value in making clear that BM&S should not be considered patentable subject matter.
There's a separate section on pharmaceutical patents, recognizing that the market factors there are somewhat different. Obviously, the pharma industry relies more heavily on patents. But they also note that Australia has a public policy need to "improve the health of all Australians." They suggest that the government shouldn't be as willing to hand over "extensions of terms" on phama patents, and should only do so in specific cases.
On the related question around data protection and biologics (a key sticking point in the TPP negotiations), the report finds that the policy should be designed to encourage much more openness and information sharing, rather than locking up information and biologics for too long.
There should be no extension of the period of data protection, including that applicable to biologics.
Further, in the context of international negotiations, the Australian Government should work with other nations towards a system of eventual publication of clinical trial data in exchange for statutory data protection.
These all seem like decent suggestions, though I still think they could go further. For years I've pushed for an independent inventor defense and for independent invention being a sign of obviousness (such that it might invalidate a related patent from someone else). That concept doesn't seem to make it into the report.
Still, as with copyright, the report's authors do seem to understand the key problems of the patent system in working against innovation.
And, once again, this is fairly amazing. The stunning thing about this report is that it pushes back on a lot of the accepted -- but bogus -- wisdom around copyright and patents that just gets repeated without question in most government reports. Kudos to the authors of the report.
Hoverboards of various designs have captured the imagination of kids for quite some time. Mobility devices like the Segway were supposed to revolutionize transportation and city planning, perhaps replacing cars with somewhat ridiculous 2-wheeled vehicles. Maybe someday self-balancing mobility devices won't be some kind of joke. We might have to wait until all the patents expire, though.
As Techdirt has reported, over the last few years there has been a general swing away from allowing patents on genes. The highest courts in both the US and Australia threw them out in cases involving Myriad Genetics and its attempts to patent genes affecting breast cancer susceptibility. Another country where the status of gene patents has been called into question is Canada. In November 2014, the Children’s Hospital of Eastern Ontario (CHEO) brought a case over five gene patents held by Transgenomic connected with the Long QT syndrome, an inherited heart rhythm disorder that can be fatal. CHEO took legal action because it wanted to be able to carry out genetic tests for the syndrome without needing to pay for patent licenses. Last week, CHEO announced that it had come to an agreement with Transgenomic:
On March 9, 2016, CHEO announced a deal that ensures Canadian public sector hospitals and laboratories the right to test for Long QT syndrome for Canadian patients.
What's more, it sets a precedent that will help address the issue of gene patents more broadly in Canadian health care.
In the settlement, the patent holder Transgenomic has agreed to provide CHEO and all other Canadian public sector hospitals and laboratories the right to test Canadians for Long QT syndrome on a not-for-profit basis. The deal defines a pathway for all public Canadian hospitals and labs to conduct genetic testing without legal roadblocks from gene patents.
CHEO called this a "tremendous win for families":
We have created a model for recognizing the public interest in genetic testing within the Canadian health care system. As these tests can now be performed in Canada, families across the country will have better, quicker access to the answers and the care they need. This agreement will save lives.
Moreover, CHEO believes it has created a template for others in Canada to use more widely:
From now on, public hospitals and laboratories can ask patent holders to sign similar agreements allowing not-for-profit access. If the patent holder doesn’t agree, the province can step in and ask the patent office to give it, on behalf those hospitals and laboratories, a compulsory license on the same terms.
That's certainly a good deal, and solves CHEO's immediate problem of being able to carry out genetic testing without paying for licenses. But viewed against the landmark rulings obtained in the US and Australia, it's something of a failure. An analysis on the legal site Lexology explains:
The patents in question remain valid and enforceable against commercial use of the isolated genes in Canada, because the case settled without a determination of the subject matter patent-eligibility of genes ("subject-matter patent eligibility" refers to whether genes are a patentable category of invention -- for example, abstract ideas, pure business methods and laws of nature are not patentable subject matter).
Moreover, there is no other case that could establish definitively whether isolated genes are patentable or not in Canada. Since CHEO's mission is saving lives, not killing abusive intellectual monopolies, it's quite understandable that it was happy to accept this kind of pragmatic solution. But it's also regrettable, since it means an opportunity to add to the momentum building against gene patents around the world has been lost.
This month, Intellectual Ventures filed some fresh lawsuits against targets including JCPenney, Sally Beauty, and flower delivery service Florists' Transworld Delivery. We checked out the asserted patents to see if any deserved our Stupid Patent of the Month award. All were worthy candidates, but one in particular stood out.
Before we get to the patent, here's a short script:
DISPATCHER: Hey, is your crew available?
ROSIE: Yep.
DISPATCHER: We need you to head over to Jimmie's place and fix his problem.
ROSIE: Okay.
DISPATCHER: This is Rosie, right?
ROSIE: Yep.
DISPATCHER: Great. The job has been assigned to you.
This script will probably not win an Academy Award for screenwriting. But how about a patent? As silly as this question may sound, by suggesting implementing this kind of basic crew management using an "enterprise computing system," a company called ABB, Inc. was able to get a patent. In 2003, the Patent Office issued U.S. Patent 6,633,900 titled "Mobile Crew Management System For Distributing Work Order Assignments To Mobile Field Crew Units" (the '900 Patent). Intellectual Ventures acquired it in mid-2015.
Claim 1 and Figure 5 of the '900 Patent best illustrate the banal idea at the center of the patent: crew assignments, but with a computer. The claims outline mundane steps (like the script above) and applies them to a computer environment. For example, one step is "notifying the field crew of the assignment." Another step is "retrieving and presenting a list of assignments to the field crew."
Patent claims like these are almost surely invalid under the Supreme Court's Alice v. CLS Bankdecision. But that does not appear to have deterred Intellectual Ventures. Indeed, with such a huge portfolio at its disposal (Intellectual Ventures claims to own more than 40,000 patents), it is astonishing that it would chose to litigate with such a weak patent. This choice raises awkward questions about the overall quality of Intellectual Ventures' portfolio.
Intellectual Ventures is headquartered in Bellevue, Washington. Florists' Transworld Delivery (FTD Companies, Inc.) has its headquarters in the Chicago suburbs. But Intellectual Ventures' lawsuit [link to complaint] was filed about as far from these places as possible in the Eastern District of Texas. As we have noted manytimesbefore, the Eastern District of Texas is a hotbed of abusive patent litigation. Having chosen to litigate with a plainly invalid patent, it makes sense that Intellectual Ventures would chose a forum where the local rules favor patent plaintiffs.
Venue reform legislation currently before Congress would put an end to this kind of forum shopping. That would help reduce abusive patent trolling. But we need broader patent reform to ensure that patents like this one don't issue in the first place so that they can never become litigation weapons for trolls like Intellectual Ventures.
