Tuesday, September 30, 2008

Elections looms closer and the USPTO is doomed

It doesn't matter who gets elected as president, the major problems at the Patent Office (IT management, labor relations management, quality control) will continue to get worse. The problem with McCain and Obama is that they don't have much experience or knowledge in technology, and neither do their VPs, and neither do many of their economic advisors (just as Carly wrecked HP). McCain most likely will continue the Bush legacy of tolerating incompetent management and using the PTO as a political tool, while Obama (distracted with other things) will allow Leahy to sell the PTO to the highest bidder (and Obama has too many Lemley/Moore-like academics advising him). In the end, neither candidate really cares about reinvigorating American's economy (with all their campaign trail bickering about silly and irrelevant issues - I mean, this country had to waste two days of its life watching grown(?) men argue about lipstick on a pig [which is animal abuse]). This campaign is basically about who is least unqualified - real encouraging, huh? To understand my skepticism, consider my comments on some comments Hal Wegner of Foley and Lardner recently made: "Professor Arti K. Rai, a leading patent spokesperson for her fellow Harvard classmate Barrack Obama, has argued for a need for change at the Federal Circuit, and particularly for the elevation of trial judges to the bench. She has also argued for the appointment of an Under Secretary knowledgeable about the patent system." Interesting, but why not appoint a patent practitioner to the CAFC? For example, one of the biggest crimes against patent applicants is the CAFC repeatedly ruling that patent specifications must be as long as possible, with endless patent claims to cover every possible infringement. "Don't specify it - can't claim it. Don't claim it - can't assert it." The crime? The CAFC creates this policy while the PTO is trying to create the policy of having patent specifications as short as possible, with as few claims as possible, so they can mismanagement their way out of their mismanaged pendency problem. The two policies together are insane, and cause great uncertainty in the minds of patent applicants as to how to invest their patenting dollars. "President McCain is Pledged to Spend Money on the PTO to Meet its Objectives: A surrogate for Senator McCain pooh poohed the criticism of the PTO leadership by noting that this criticism applied to previous administrations as well." Sure, previous PTO administrations were criticizable (Bruce Lehman being the second worst PTO Director in decades [such a ranking completely ignores the non-entity resume-stuffer Rogan].) But the last six years under legislative aide Dudas - the lies, the hostility, the failed policy initiatives - has severely damaged PTO operational capabilities. Such pooh poohing completely ignores two massive GAO studies documenting multiple automation and labor management problems at the PTO. Anyone who pooh poohs problems with PTO management has a pooh pooh head. Both candidates must pledge, at a minimum, NO MORE LEGISLATIVE AIDES AS PTO DIRECTOR. "Per his surrogates, Senator McCain is committed to spending as much money as needed for the PTO to achieve its goals." McCain's commitment is an insult to inventors and the public, because without a competent and professional management at the PTO, "spending as much money as possible" is a recipe for worsening conditions at the PTO. The PTO is suffering massive engineering management problems, which have to be addressed first before any other reform (most of which depend on the existence of a competent management). Wall Street, which can spend "as much money as possible" is collapsing as we speak. Why? Massive management problems in financial institutions. As have two large government corporations which can and have "spent as much money as possible" - Fannie and Freddie (though they spent too much of their money bribing politicians). Throw tons of money at incompetent PTO management - a sure guarantee of the similar collapse of the PTO. "Federal Circuit Defended: In marked contrast to Professor Rai's criticisms of the Federal Circuit, Edward Reines on behalf of Senator McCain staunchly defended the current composition of the Federal Circuit bench." Again, Edward Reines belongs to that part of the patent bar which holds the public in contempt in the sense that the concerns of the public (either inventors seeking patents, or the public who benefits from patents) are irrelevant. Reines believes in a sort of imperial CAFC, kowtowed to by lawyers, where the CAFC (and the Supreme Court) keep on issuing decisions that drive up the costs of patent prosecution, and that reinforces a stare decisis based on vagueness and contradiction of science and engineering. That's all fine to Reines - doesn't affect him or his clients. Given some of the nonsense science in CAFC oral questions and written decisions in cases like Nuijten, Microsoft/ATT, Bilski, Comiskey - yes, the CAFC needs some tuning of its competence in handling science and engineering issues (such as allowing a few scientists and engineers as clerks). "Chief Judge weighs in at Harvard with his own observations: As part of the previously referenced Harvard appearance last week, the Chief Judge remarked: 'When, I ask, did we ever before see patent policy discussed publicly by presidential campaign advisors?' ..." Well, Judge Michel, both candidates and their supporters keep on endlessly chattering the mantra of "We need new technologies to lead the economy forward", without realizing that a key component in that process is the identification and protection of the best new technologies with patents. One of the worst effects of the low quality of issued patents is that it makes it harder for the investing public to quickly identify new inventions worthy of financial investment. A completely mismanaged patent office thus weakens the nation's economy, and thus the nation's national security. Too bad the CAFC doesn't give that much of damn about incompetent PTO management. ... 'Next, we may see potential Federal Circuit nominees being touted or trashed in the media in advance of any vacancies.'" Well Judge Michel, given some of the problems your colleagues have in understanding the basics of science and engineering, I think you should be less contemptuous about scrutiny being applied to CAFC candidates. Indeed Judge Michel, how often do CAFC judges talk, not to lawyers, but to scientists and engineers? For that matter, how often do the CAFC judges talk to patent applicants and inventors, who are extremely affected by CAFC decisions? I doubt very often, which is irresponsible given the increasing role science and engineering is playing in CAFC decisions (such as anything to do with 35 USC 101 and 103). Any CAFC judge who does not believe that propagating signals are physical and useful needs to be trashed in the media. Shanna Winters; retired chemical executive -- Candidates to be Dudas' Successor: This writer is unaware of any candidates openly seeking the position of Under Secretary other than Shanna Winters. There has so far been no public discussion concerning her suitability for the position, and no comment released from Professor Rai or any other member of the Obama campaign. Hal wrote this paragraph to piss me off :-) Fine, Hal, here is some public discussion on Shanana Winters - she is another professionally unqualified legislative aide whose appointment as PTO Director or Deputy Director will be a violation of the law. For the two biggest problems at the PTO, well documented in lengthy GAO reports - that of examiner management and information systems management - Shanana Winters has no experience or competence whatsoever. Additionally, anyone remember hearing her speak anywhere in the last ten years outside of the Beltway, or read anything non-trivial about patent law written by her? NO NO NO. Is she urging the Congressmen she works for to investigate reports that PTO SPEs are ordering examiners to reject everything? NO NO NO. I can (and will) take the Peterlint complaint and pretty much just swap names to have a complaint in the ready (even better, this time around we don't have to argue about standing because the judge gave it to us under the APA in the Peterlint lawsuit). My colleagues in the lawsuit and I have committed to refiling a lawsuit against any legislative aide so appointed, and this time around I EXPECT more co-defendants and more financial support. My goal is to raise at least $50,000 to fight any such appointments. Inventors, examiners and the public deserve, nay are owed, competent PTO management. A former President of the intellectual property arm of a major Midwestern chemical company, recently retired, has been mentioned as a possible successor on the Republican side. Several other names on both sides have been privately circulated and are worthy of consideration. As long as they are not legislative aides. Myself, I prefer someone with a lot of experience in IT management as the next PTO director, but sadly, anyone with the competence makes ten times what the PTO salary is. The innovation America needs to regrow the country is not going to come out of mismanaged companies begging Congress for loans (the auto industry, much of the financial industry), or big companies who can buy policy (your Microsofts, energy companies, the Gramm family's Enrons and UBSes) to compensate for the lack of much real innovation, etc. It is going to come from the smaller, nimbler, innovative companies and start-ups, who right now are getting screwed big time by the worsening conditions at the Patent Office with longer pendencies and expensive idiotic Office Actions. Right now, neither candidate is saying anything that is good for such people. Too busy telling lies.

Monday, September 29, 2008

How God supports patent reform, or patents in general

From NBC's Michael Levine: As questions have been raised over how thoroughly Sen. John McCain's presidential campaign vetted Alaska Gov. Sarah Palin for the V.P. slot, it seems the McCain campaign was unaware of a video -- available online -- in which Palin talks about God's role in U.S. military action overseas, according to a political operative familiar with the situation. The video, first reported by the liberal blog HuffingtonPost.com, is from a June Palin speech to the graduating class of commission students at Palin's former church in Wasilla, Alaska. While describing her family, Palin told students about her oldest son, 19-year-old Track, who is set to be deployed to Iraq this month with the U.S. Army. She urged students to pray "that our leaders -- that our national leaders -- are sending [soldiers] out on a task that is from God." She added, "That's what we have to make sure that we are praying for: that there is a plan and that that plan is God's plan." (note: legitimate question then - is there patent reform in God's plan? And after Georgie Bush's hearing from God to invade Iraq, I am scared of this talk.) "It's pretty uncomfortable stuff," said the political operative, after watching the video online. "It's bad. It's really bad. It's going to be interesting to see how this plays out." The seven-minute speech is posted on the Web site of Palin's former church, the Wasilla Assembly of God. But, the political operative said, the McCain campaign seems to have had no knowledge of it when Palin was announced as McCain's running mate on Friday. For fans of the Daily Show: The most recent Republican hypocrisies were best pointed out by Jon Stewart on The Daily Show last week, with clips of Karl Rove flip-flopping on whether someone who was once mayor of a city as small as Richmond and governor of a state the size of Virginia is qualified to be Vice President (on August 10, Rove said that a possible Democrat nominee, Tim Keane, was not qualified; last week Rove said Sarah Palin, former mayor of tiny Wasilla, Alaska and current governor of Alaska, was qualified); of Bill O.Reilly on whether a teenage girl's pregnancy is the fault of her parents (it is, when the parents are the parents of Britney Spears' sister Jamie Lynn, but it's not when the parents are Governor Sarah and 'First Dude' Todd Palin); of the prostitute-hiring Dick Morris on whether certain attacks on a female candidate are sexist (last year Morris said Hillary Clinton shouldn't complain about sexist attacks, because she needed to show she could play with 'the boys'; but last week Morris complained about sexist attacks on Sarah Palin); and a clip of Sarah Palin herself, from last March, saying that women candidates should not 'whine' about sexism

Sunday, September 28, 2008

A book sounds an alarm: the US lacks technical innovation to sustain economic growth

Anyone following the stock markets lately will easily agree with the need for new business models in the markets, given the financial incompetence and corruption that is currently destroying everything in its path. We need new business models, and now. Just as importantly, such new business models should have the profits of such innovation go to only one group of people - the innovators, and not the parasites and dinosaurs who can buy off Congress, the PTO and the courts to try and prevent business method patents. I hope the CAFC realizes the importance of new business models to help restore the U.S. economy, and that the CAFC realizes the need to fully protect such innovative models with patents, so that the innovators benefit from what the dinosaurs can't do. It is an opportunity for the CAFC to show some financial leadership in a town lacking the such in massive quantities. In parallel, former Cisco CTO Judy Estrin has published a new book titled "Closing the Innovation Gap", reviewed in the New York Times, 9/1/8, page C4. "We have a national innovation deficit." The article summarizes: "Yet she is deeply worried that Silicon Valley - and the United States as a whole - no longer foster the kind of innovation necessary to develop groundbreaking technologies and sustain economic growth." All the more reason we need to eradicate the corruption and incompetence in the PTO, so that the investing marketplace can use higher quality issuing patents as signals as to where the real innovation is. Right now, the PTO is betraying the markets, which sadly seems to be the rule of the day in Washington.

Saturday, September 27, 2008

EFF, Public Knowledge Sue US Government Over Secret IP Pact

the news comes from Grant Gross, IDG News Service: http://www.pcworld.com/article/151213/suit_secret_treaty.html?tk=rss_news Justify Full Two digital rights advocacy groups have filed a lawsuit against the Office of the U.S. Trade Representative (USTR) in an attempt to get the office to turn over information about a secret international treaty being negotiated to step up cross-border enforcement of copyright and piracy laws. The Electronic Frontier Foundation (EFF) and Public Knowledge filed the lawsuit Wednesday after USTR ignored their repeated requests to turn over information about the proposed Anti-Counterfeiting Trade Agreement (ACTA). ACTA could include an agreement for the U.S., Canada, the European Commission and other nations that are part of the talks to enforce each other's intellectual-property (IP) laws, with residents of each country subject to criminal charges when violating the IP laws of another country, according to a supposed ACTA discussion paper posted on Wikileaks.org in May. The document posted on Wikileaks also talks about increasing border searches in an effort to find counterfeit goods, encouraging ISPs (Internet service providers) to remove online material that infringes copyrights and increased cooperation in destroying infringing goods and the equipment used to make them. The full text of the ACTA has not been released, despite requests by EFF and Public Knowledge, as well as Canadian groups. Wikileaks is a site that posts anonymous submissions of sensitive documents. "ACTA raises serious concerns for citizens' civil liberties and privacy rights," EFF international policy director Gwen Hinze said in a statement. "This treaty could potentially change the way your computer is searched at the border or spark new invasive monitoring from your ISP. People need to see the full text of ACTA now, so that they can evaluate its impact on their lives and express that opinion to their political leaders. Instead, the USTR is keeping us in the dark while talks go on behind closed doors."

Obama may be worse for patent policy than MacCain

Unfortunately, Senator Obama is addressing the problem of patent reform, but in a negative way. Senator Obama, along with Senators Hatch and Leahy, were the primary sponsors of the Senate version of the Patent Reform Act that just went down to defeat in the Senate. So, if Obama is elected President, he will definitely sign this awful piece of legislation into law. Practitioners whom I know have contacted Senator McCain, and they tell me that he is willing to listen to reason. Exactly what that means, I do not know.

Friday, September 26, 2008

Why the horse-shaped house is a problem patent

In a recent post, I mentioned a patent on a horse-shaped house (U.S. patent 5,564,239). Here is a very thorough analysis from a reader: The patent for a horse shaped sculpture may also be a good example of a weak patent examination process in action. The first cited patent - from 1882 - really sets forth the entire concept of an animal shaped building. Including stating "The building may be of the form of any other animal than an elephant, as that of a fish, fowl, & etc." That description pretty clearly includes a horse, and anyone looking at the patent - or the actual buildings that resulted, would surely realize that the building could be shaped like a horse, or a cow, or any other animal. Isn't it obvious to surround a building (of any sort) with a garden and/or a moat, and/or a fence? Lets see - gardens have surrounded buildings for centuries, and we've all seen castles from 500 years ago which are surrounded by water (and even have gardens in some cases - and even bridges over the moats). Is it novel to make the outline of the garden, or the moat, octagonal? Wouldn't that be an obvious extension, of say, a pentagonal or hexagonal shape? In fact if I wanted to spend an hour or so I bet I can find an octagonal moat surrounding a building. And thus with the prior art you have the '239 patent. But it is an amusing patent. I remember visiting Lucy the Elephant - built from Lafferty's 1882 design in Margate NJ. It was a decrepit relic when I was young, but has since been restored. See the story at: http://www.lucytheelephant.org/ The web site includes historical descriptions of other similar structures, how they were used for amusement purposes, etc. By the way -- Lucy the Elephant is surrounded by a rectangular fence, with an opening. Is it really an invention to make the fence octagonal instead of rectangular, rhetorically speaking?

Wednesday, September 24, 2008

How USPTO will be destroyed by the policies of the next president

Let's face it folks, Jon Dudas has been and is the worse PTO Director in the last twenty years. PTO operations and personal have suffered severe damage under his mismanagement, due to his complete lack of management experience and IP operations experience prior to coming to the PTO. NO MORE FREAKING SELL-THEIR-BODIES LEGISLATIVE AIDES IN THE PTO. The PTO cannot suffer eight more years of such mismanagement. The PTO will become nothing more than a registration system for large corporations building up portfolios. True innovators won't have the financial resources to deal with increasing levels of nonsense coming out of the PTO. Which is sadly ironic since both presidential candidates are touting innovation to save a slowly collapsing economy. But sadly, neither presidential candidate has said anything promising for true reform at the PTO. McCain's choice of Palin means that he will be more than happy allowing Palin to appoint more unqualified Peterlint-like legislative aides to head the PTO, and his suggestions for reform all avoid the most important problem - reform of PTO management. Obama's camp is spewing the same patent reform nonsense (public peer review, litigation reform, blah blah blah). If Obama is elected, he will allow Biden to appoint some Democratic lackey to head the PTO who will work with Leahy to sell the PTO to the Coalition for Patent Reform. And yes, this fall, I will be trying to raise funds to prepare for filing lawsuits over next year's appointments of PTO (Deputy) Director. You can be pretty sure that the AIPLA/ABA/IPO won't find some balls next year to defend against the destruction of the PTO.

Tuesday, September 23, 2008

How Disney might have lost the Mickey Mouse copyrights

The 22 August LA Times has an interesting article on Disney's copyrights for Steamboat Willie and its substantially similar Mickey Mouse characters. The primary question is of simple copyright law: is the copyright registration for Steamboat Willie defective and thus is the character in the public domain? The more intriguing dilemma - if Steamboat Willie is in the public domain (argument below), can people sell substantially similar Mickey Mouse products and defend themselves by arguing that they are substantially similar to the uncopyrighted Steamboat Willie? Disney has trademarked "Mickey Mouse", so you would have to use a different name for a new product line based on using the public domain Steamboat Willie. The controversy starts with a copyright lawsuit involving one of the few Mickey Mouse movies not copyrighted, a 1933 short called "The Mad Doctor", for which someone was trying to sell animations cells. Disney lawyers rightfully pointed out that Mickey Mouse itself was still under copyright, so the cell seller couldn't sell. The loser, one Gregory Brown, consoled himself with an odd argument that the Disney lawyers had made - that Mickey Mouse had been created by Walt Disney Company in 1928. Problem. The company didn't exist in 1928. Whose name then is on the copyright forms? Digging around, Brown found a clue on the title card to the beginning of the "Steamboat Willie" cartoon that was released on a 1993 LaserDisc, which said: "Disney Cartoons Present A Mickey Mouse Sound Cartoon, Steamboat Willie - A Walt Disney Comic by Ub Iwerks, Recorded by Powers Cinephone System, Copyright MCMXXIX" MCMXXIX is the Disney's lawyer's 1929 reference - but to Steamboat Willie. Brown unsuccessfully tried arguing in his court case that any of these three parties (Disney, Iwerks, Powers) might claim ownership, an uncertainty that nullifies all ownership claims under the arcane rules of the Copyright Act of 1909. And since Steamboat Willie is so substantially similar to Mickey Mouse, if Willie is in the public domain, it makes it practically impossible for Disney to defend any copyright claims to substantially similar Mickey Mouse knockoffs. Fun stuff, huh. The judge ignored the argument for coming too late in Brown's case. However, in 1999, Arizona State University law student Lauren Vanpelt reviewed Brown's findings, and wrote/posted a paper "Mickey Mouse - A Truly Public Character," , in the public domain, pretty much agreeing with Brown - Willie. She concludes, quite powerfully and definitively (she is not a law professor yet): "Disney published its common law protected expression without the proper copyright notice attached to the films and on the club materials. The statute of limitations to rectify that omission has long since elapsed, as has the statute of limitations for Disney to file any infringement claims based on that omission. As a result of its omissions and inaction, Disney forfeited its copyright claims to Mickey Mouse. Mickey has fallen into the public domain where all are free to copy and enjoy him." Shortly thereafter, a Georgetown University law student, Douglas Hedenkamp, reviewed Vanpelt's paper, and did additional research at the Library of Congress, and agreed - there is too much ambiguity into who owns the copyrights to Steamboat Willie. And under the 1909 laws (courts rely on the laws at the time of something happening), the ownership must be unambiguous, which isn't the case here, a requirements courts have repeatedly upheld. A rough looking version of Hedenkamp's article is at:http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/publicdoma in/HedenkampFreeMickeyMouseVaSp&E(2003).htm Hedenkamp concludes, again powerfully and definitively (he wasn't a law professor at the time :-), with: Ultimately, if all the material incorporated into the films published without notice is in the public domain, this means that the character Mickey Mouse is himself public domain material. Mickey would still be protected by the copyrights in his other films and products, but those copyrights would only extend to the new matter that is original to them. [FN161] The aspects of Mickey's image and character that were derived from the original public domain films cannot be protected by virtue of their inclusion in new works; this is true under both the 1909 Act and the Current Act. [FN162] This means that the public is free to exercise all of the rights that the Copyright Act would otherwise reserve to the holder of a valid copyright. [FN163] This includes the rights to copy, display and distribute the films, and to make, display and distribute derivative works based on those films and the Mickey Mouse character. [FN164] In response to a letter from Hedenkamp, Disney General Counsel Louis Meisinger wrote back saying the equivalent of "all of you are wrong", and threatened legal action if Hedenkamp went public. Fortunately Hedenkamp has balls and a knowledge of constitutional law (something IP lawyers are mostly forbidden to consider :-), and published an article in the 2003 edition of the Virginia Sports and Entertainment Law Journal. The end of the LA Times articles goes: Meisinger, the former general counsel, is now a Los Angeles County judge. Asked about the Hedenkamp article in an interview in his chambers, Meisinger gave an instant nod of recognition but ignored an invitation to take up the argument again. "Everything has to fall into the public domain sometime.", he said, then headed back to court. Which is a pathetic implicit concession that indeed Brown/Vanpelt/Hedenkamp are correct - Steamboat Willie is in the public domain. Since LA Times was able to write this article in 2008, five years after Hedenkamp's paper, with the question unresolved, is further support that Steamboat Willie is in the public domain. Disney rightfully zealously defends its intellectual properties, which apparently it can't do here as proved by the possibility of an article five years later in 2008. If Disney could have fixed the defect, it would have done so after Vanpelt's and Hedenkamp's papers - Disney has the money and legal brainpower to easily fix such problems. And the LA Times could have reported "Despite the controversy, in 200X, lawyers for Disney successfully reinstated the copyrights to its Steamboat Willie character." Question. How to have some fun with this (assuming one has lots of money to play litigation games)? Would it take setting up a Web site that freely distributes Steamboat Willie videos to upset Disney enough to have them file the copyright lawsuit that resolves this question? Or what would happen if someone wrote a letter to the Library of Congress, asking them who are the assigned names to Steamboat Willie? Is there a legal problem in accepting licensing money for a something that has now been shown to be unlicensable? Where is the professor Jon Duffy of the copyright academic world to file a lawsuit to force the issue? This case once again shows how much of a bag of hot air is the mind of Larry Lessig, since he could strike a great blow for all of his pretend copyright causes by doing something with Steamboat Willie that would force Disney to sue Larry.

Sunday, September 21, 2008


To sit for the patent bar, for someone whose academic background is in computer science, you need a bachelors degree in computer science from a school accredited either by the CSAB's CSAC or the ABET's CAC - two boards that accredit computer science programs. The problem is that most of the leading computer science departments, often part of engineering schools, are accredited differently. In 2006, Prof. Thomas Field of the Franklin Pierce Law School petitioned the PTO to modify this requirement, arguing that it unfairly restricted many worthy candidates from applying for the patent bar. In May 2006, PTO lawyer Toupin responded with a rejection of the petition, ignoring all of the legitimate merits of the argument, and instead pretty much arguing that Field didn't dot his "i"s and cross his "t"s. Now Toupin could have remembered that he is a public servant, instead of an anal weenie, and wrote back and said "While your petition is defective, we agree the Rule is unduly restrictive, and have changed it accordingly".

Friday, September 19, 2008


The 11 August 2008 edition of Forbes, page 30, has an opinion piece by real estate law professor Michael Heller of Columbia Law School on patent reform. What's next, an article on patent reform by divorce settlement law professor? If nothing else, his opinion piece supports the argument that Mark Chandler of Cisco and his ilk in the CPF are whiners. Heller argues that too many crappy biotech/pharm patents are stifling research and driving up litigation costs. His solution? Change the formula for patent litigation damages (gee, I wonder where Heller gets some of his academic support)? Not once in the article is any mention of reforming the incompetent and corrupt PTO management, which gets rid of most of the problems Heller and Chandler whine about. That's the law professors' solution to every legal problem - anything (like more legislation) but what might actually solve the problem. Columbia Law School is near New York University, which means nothing, except it gives me an opportunity to insult once again the IBM scam otherwise knows as the NYU Patent Public Peer Review joke.

Thursday, September 18, 2008

Morons proclaim September 24th the World Anti-Software Patent Day

Newswires report that on September 24th, lying engineering/law morons around the world will be organizing an anti-software patent day. Liars because they are really against all patents, morons because their arguments are equally applicable to hardware patents. But they can't argue against hardware patents because that would reveal their true goal - the elimination of patents for unconstitutionally, plague-like (according to the ABA) copyright system.

Wednesday, September 17, 2008


From: Steptoe_Newsletter@steptoe.com Sent: Thursday, August 21, 2008 12:47 PM Subject: E-Commerce Law Week, Issue 520 E-Commerce Law Week Issue 520, Week Ending April 16, 2008 Court Says eBay is a Criminal Enterprise. Seriously. A federal court in California recently held that eBay's allegedly false statements about the safety of its "Live Auction" service can support a claim against the company under section 1962(c) of the Racketeer Influenced and Corrupt Organization Act (RICO), a statute originally designed to go after organized crime. The ruling is at: http://www.steptoe.com/attachment.html/3504/520a.pdf For your information, 18 USC 1962(c), the section of RICO of interest here states: (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt. Although the case involves a civil suit, the court's ruling in Mazur v. eBay Inc. amounts to a remarkable statement that eBay's description of its auction service constitutes criminal behavior. While the Federal Trade Commission has brought actions for "unfair" or "deceptive" acts in commerce against companies whose actual privacy practices did not live up to their stated policies, allowing RICO actions to be brought on the basis of similar misstatements is a giant leap - and could have enormous negative ramifications for websites. (c) Copyright 2008 Steptoe & Johnson LLP.

Saturday, September 13, 2008

Blacklight hydrinos are back and get written up in Fortune

Those of you in the patent world with a background in physics have long enjoyed the saga of free-energy inventor Randell Mills, CEO of BlackLight Power, who claims (including in patent claims) that it is possible to generate (free) energy from hydrinos, which are hydrogen atoms one state below the ground state. The Patent Office, in one of its few times where it relied on the physics community and modern physics, has refused to issue any patents to BlackLight, arguing that it is false physics to argue that hydrogen can have a ground state lower than the ground state. Anyway, the September 2008 issue of Fortune Small Business has an article on BlackLight Power. The paragraph 112 test of the patenting laws is next Fall 2009, when they claim they will start installing the energy cells in working power plants.

Friday, September 12, 2008

Another case of pure ugly art is a horse-shaped building

Throughout history, one of the classic forms of sculpture is that of horses, the challenging being to capture the beauty of the natural horse form in a static object. Such sculptures can be made of many materials, including wood, so that a sculpture of a horse done in wood is a work of pure art. Now most such sculptures tend to be life-sized to miniatures, but heck, let's have some fun, be avant-garde artistes and build a horse sculpture the size of a multi-story building. Maybe in tribute to the Trojan horse, itself a work of art in story form. Despite its massive size, it's still a work of art. And what the heck, let's live in this large wooden horse sculpture. Otherwise known as U.S. Patent 5,564,239. All art is art. If some art is patentable, all art is patentable, no matter how many nonsensical statements made by IP government officials and judges, who know less about art than they do about science and engineering.

Thursday, September 11, 2008

Insider view of Nokia's patent mill

Wiley publishers has just published a book by Donal O'Connell, "Inside the Patent Factory". Its 323 pages describe the patent (churning) process at Nokia, where O'Connell works. With so many pages, it should be a useful guide to patenting at large global corporations.

Wednesday, September 10, 2008


Tuesday's New York Times carries a nice article on Belgian independent inventor Francois Massau (1905-2002), who in 1958 built one of the first rotating houses, a patentable artistic-engineering idea becoming more popular, since such houses captures/blocks more sunlight for free heating/cooling.

Monday, September 8, 2008


Last week's (Monday's) New York Times, Business Section page 1, has an article on how the PTO is fighting lame attempts by computer companies to trademark the term "cloud computing" (basically, time-sharing re-fashioned into server farms). In August, for example, the PTO rejected a trademark application from Dell, after industry experts complained that the term had become a broadly used term associated with large numbers of companies/universities, and thus could not serve as a mark to identify one random company. Microsoft has a trademark application on "live mesh" pending. The article has a picture of, and comments from, Trademark Commissioner Lynne Beresford. One statistic: 85 percent of the PTO's trademark examining attorneys work primarily from home.

On writing personal finance haiku

I was recommended to take a personal Bills IQ quiz. It is a very straightforward, simple, and logically built. You don't need to be a financial pro to understand the questions. In fact, many questions are so realistic and challenging perception of one's financial reality that it can also serve as a polite wakeup call to clean up the bills and start taking care of the future. One's credit, debt, budget, wealth, life plan are carefully analyzed with meaningful questions. Nowadays with the mortgage crisis and its accompanying issues it behooves everyone to be ever more honest with oneself and restructure debt, stop incurring debt, and adjust expenses. The days of "live and forget" approach to living are gone: I have to be frugal with my daily, as well as monthly budget so as to be able to save for the future, to say the least for the rainy day. Insurance, the oft-neglected topic, to the point of being a total mystery, is also addressed in the Bills IQ test. What is more meaningful about the test is beyond getting another arbitrary score. In addition to a score the results yield a personalized solution table. For example, the table is custom-generated and the ailing aspects of one's finances are recommended direct action: to solve the credit card debt, contact a specific company, to get a mortgage quote, go to this specific address, to get a free credit report now, click here. Taking the test made me write a haiku. Haiku fits the theme of finance, since the concept of haiku is centered on describing objects, animals and an event (which may be continuous) in order to relate a scene or an inner state of oneself. All it needs is to have the 5-7-5 pronounced syllable per line structure. This is what BillsIQ had inspired: Money trickles away to keep castle with lady and beach ball for baby I feel better already.

How physics influenced the development of surrealism

I have long argued that all, not just most, of the artistic world should be patentable. The formal arguments aside, based on the growing science and engineering of art and entertainment, I firmly believe that one of the largest, most successful engineering-design product company in the world is Disney, and I mean for all of their products. Part of my argument is based on the numerous links back and forth between art and science, links too deep and numerous for a patentability line to be drawn - i.e., scientists are artist who use numbers instead of paint or notes. One such deep link, noted in a variety of books and theses, is between physics and surrealism. A new book published by Yale University Press titled "Surrealism, Art and Modern Science" by Gavin Parkinson, furthers the documentation of this linkage. One of Parkinson's arguments is that some of the founders of surrealism, including Salvador Dali, were inspired by the poetic attempts by astrophysicist Arthur Eddington to explain Einstein's relativity to the public, leading to such works as the very famous timeclock-melting "Persistence of Memory".

Sunday, September 7, 2008

Knock-off drug maker Teva Pharmaceutical finds itself being copied

The 11 August 2008 edition of Forbes, on page 58, has a knee-slapping article on mediocre though profitable generic drug maker Teva Pharmaceutical. For years Teva has made lots of money copying other companies' drugs, is now buying up patent-protected drug lines that it can sell, only to find out that other generic companies are copying Teva's patent-protected drugs. What goes around, comes around.

Friday, September 5, 2008

Here's a patent for a weaponized notepad

illustration for a patented notepad having self-defense functionMany of you guys are familiar with brass knuckles, those intimidating metal devices for making punches more damaging and bloody. The July 2008 Supplement to the CIPA Journal reveals U. S. Patent 5,823,572 for notepad knuckles, the notepad having edges shaped so as to allow a person to get a very strong grip on the notepad to use it as a self-defense weapon. Note the spiral (8' in the drawing) that exploits its serrated structure as an additional wounding surface.