Opinion piece - copyright duration.

I'm a couple of weeks late with this one but as reported by numerous news sources, the copyright term for performers and sound recordings has been extended by 20 years to 70 years. By way of background, in Europe, the copyright in artistic or literary works (which are fairly broadly specified in Article 2 of the Berne convention) lasts for 70 years after the death of the author. The copyright in sound recordings and broadcast performances (whether by radio or television) lasts for 50 years. Copyright durations in the UK are in line with European copyrights.

Personally, I think that the extension of copyright in sound recordings is disappointing – or rather the almost complete lack of debate on the matter is disappointing. Two government reviews of intellectual property law (Gowers and Hargreaves) both concluded that there was little or no economic case to be made for extending copyright durations. Despite this, the extension was waved through by the government without so much as a murmur of dissent. So much for evidence based policy making.

I'm not alone in this judging by the trenchant commentary on other blogs.

Speaking personally, I also believe that current copyright durations are far too long. Don't get me wrong – I think copyright in general is a very good thing and I certainly don't begrudge writers, musicians and performers of all stripes (artists for short) the ability to make money from their work – and in some cases to make an awful lot of money from their work. However, I disagree with the justifications put forward for the current excessive duration of copyrights.

All intellectual property rights, should be a balance between a benefit to the public and a benefit to the rights owner. In the case of copyright, artists are given a legal tool which allows them to make money by distributing copies of their work whilst giving them the right to prevent anyone else from copying that work. This is balanced by two things – firstly that the copyrighted works will eventually pass into the public domain and secondly that the possibility of making money encourages more people to create artistic works for the public to enjoy.

Nowhere in this can I see a reason that copyright should be a gravy train for an artist's descendants and for their descendants too. However this is precisely what the legislation specifies. Before the last round of extensions, copyrights lasted for 50 years after the death of the author, which was 'intended to provide protection for the author and the first two generations of his descendants'. It was then noted that people were living for longer and lo and behold – a justification for extending to 70 years after death was found.

On a similar note, one reason for the recent extension of copyright in sound recordings is (and I quote) “performers generally start their careers young and the current term of protection of 50 years applicable to fixations of performances often does not protect their performances for their entire lifetime. Therefore, some performers face an income gap at the end of their lifetime.”

Seriously? Most people face an income gap at the end of their lifetime. It's called retirement. A lot of people from all backgrounds and incomes also have the wisdom and foresight to save something for retirement. Why shouldn't performers?

Sarcasm aside, it's worth having a look at this in a bit more detail. The average retirement age (defined as the age at which state pensions become available) in the EU is just over 65. I'll say 66 for convenience. So a copyright duration of 50 years would last a performer from the age of 16 to an age at which most other workers would recognise as a retirement age. That doesn't sound so harsh to me. Extending the copyright to 70 years covers a performer from birth to well past that retirement age – which strikes me as being plenty for even the most precocious of young performers.

However, linking copyright duration to working age isn't actually a bad idea. What if that applied to all copyrights? Forget about 70 years from death – just a single fixed term of 70 years from when any artistic work was created. In practice this would cover most artists for their whole lifetime. Even for artists that start their careers at a very early age it would last for their working lives, or at least for a duration that workers in every other field would recognise as a working life. 

In many cases 70 years from creation would mean that copyright in an artistic work would still extend beyond the lifetime of the artist but not to the ridiculous extent that it presently does. For companies that invest in artists and their works, 70 years isn't an unreasonable time to recoup that investment either. Granted it would be significant reduction from what they currently enjoy but forgive me if I believe that these companies should be investing in new talent, rather than resting on the laurels of artists long since dead and gone.

The only significant losers are the artist's descendants and their descendants too. Again, forgive my lack of sympathy but to them I say welcome to everybody else's world. Enjoy whatever is left to you in your grandparent's will and then go out and earn your own money.

Minnows and Giants

Giants and Minnows

I was flicking through the BBC news site a couple of days ago and found this article. I was curious to find out what this was all about and so decided to find US patent 7,222,078 and have a look for myself.

This is certainly not a short patent, with 39 pages of drawings and a further 50 pages of description. The abstract isn't exactly a model of clarity and brevity either. So lets turn to the claims. As I posted a while ago on this blog, the claims are the most important part of a patent because they define what the patent is preventing you from doing.

Claim 1.

A system comprising: units of a commodity that can be used by respective users in different locations, a user interface, which is part of each of the units of the commodity, configured to provide a medium for two-way local interaction between one of the users and the corresponding unit of the commodity, and further configured to elicit, from a user, information about the user's perception of the commodity, a memory within each of the units of the commodity capable of storing results of the two-way local interaction, the results including elicited information about user perception of the commodity, a communication element associated with each of the units of the commodity capable of carrying results of the two-way local interaction from each of the units of the commodity to a central location, and a component capable of managing the interactions of the users in different locations and collecting the results of the interactions at the central location.

Claims 2-53 (yes seriously) all claim various extra bits and pieces added on to the core invention claimed in claim 1. Claim 54 reads:

A system comprising: units of a facsimile equipment that can be used by respective users in different locations, a user interface which is part of each of the units and is configured to trigger a two-way interaction to occur on-line between the unit of the facsimile equipment and a vendor of the facsimile equipment, the user interface being configured to generate information about use of the unit by the user, a communication element associated with each of the units capable of carrying results of the two-way local interaction from each of the units to a central location, and a component capable of managing the interactions of the users in different locations and collecting the results of the interactions at the central location.

OK this is interesting in that it claims a specific kind of system, namely a fax machine, that uses a similar system to that claimed in claim 1.

Claims 60 claims another variation on the general theme of claims 1 and 54 and claim 69 claims a method of using a similar system to that claimed in claims 1, 54 and 60.

I'm not going to pretend to do a full analysis of all 74 claims here but I can try and dissect the first claim. My first thoughts were that this has been done before and that it sounds very much like the kind of help system of the kind that's built into Microsoft Office software – Word 2003 for example. So lets break down claim 1 into its separate parts and see how well that fits.

Units of a commodity that can be used by respective users in different locations,

A software package would fit that definition and I would argue that 'units of a commodity' is general enough to include parts of that software package too.

a user interface, which is part of each of the units of the commodity, configured to provide a medium for two-way local interaction between one of the users and the corresponding unit of the commodity. 

The Word 2003 help system provides for two way interaction between a user and the software package. To be honest I'm struggling to think of a user interface that doesn't allow for this – isn't that the point of a user interface?

and further configured to elicit, from a user, information about the user's perception of the commodity, 

Well the Word help system certainly does this – a given help page usually has a 'was this useful' option at the bottom.

a memory within each of the units of the commodity capable of storing results of the two-way local interaction, the results including elicited information about user perception of the commodity, a communication element associated with each of the units of the commodity capable of carrying results of the two-way local interaction from each of the units of the commodity to a central location,

If I remember correctly, the Word 2003 help system does indeed report any response to the 'was this useful' dialog back to Microsoft aka a central location. It's debatable whether 'a memory' and a 'communication element' are limited to actual hardware or whether they would also include software equivalents. Given that the owners of this patent are trying to enforce it against a smartphone app developer, they clearly think that software equivalents are fair game, so lets go with that.

and a component capable of managing the interactions of the users in different locations and collecting the results of the interactions at the central location.

This is where my analysis gets a little more speculative, although (as we'll see later) there's a much bigger elephant in the room anyway. The Word 2003 system isn't all stored on the end user's computer – some of the help files are stored remotely and delivered over the Web. I would guess that the web based help files are also updated in response to received feedback via the 'was this useful' dialog. I would therefore argue that this web based system is a component 'capable of managing the interactions of the users in different locations'. We've already seen that the system is capable of collecting interaction results at a central location.

Therefore, at first glance, it does look like the Word 2003 help system meets all the requirements of the patent claim. This is useful for giving a picture of the kind of things covered by the patent but isn't very helpful otherwise because I'm basing the analysis on a software package released in November 2003. However, the patent we're discussing (US 7,222,078) has a priority date of August 1992. What is a priority date and why is it important?

Under certain circumstances it is possible to file a patent application that claims priority from an earlier application. That means that the new application is treated as having the same filing date as the earlier application. For example in the UK, it is possible to file a first patent application and then, within the next 12 months, to file a second application based on the first that claims priority from it. This is useful because it allows inventors to file an early patent application for an invention that may not be fully worked out, or may need substantial development funding before it will be commercially viable. They then have 12 months to carry out further development work, raise venture capital and generally decide exactly what they want to do with their invention before having to spend more money on their patent application.

However you only get one go at this. It isn't possible to chain applications together, for example by waiting another year and then filing a third application based on the second that also claims priority from the first.

The US system is somewhat more involved and as I understand it, under certain circumstances it is quite possible to chain applications together in this way. This is exactly what we see with US 7,222, 078. Although the patent itself was filed in December 2003, it claims priority from another application filed in September 1997, which in turn claims priority from another application filed in May 1994. The May '94 patent claims priority from a still earlier patent but was filed under slightly different rules (a continuation-in-part rather than a continuation). I'm not going to go into the details of the rules here but the upshot is that only part of the invention described in the May '94 patent will be entitled to that earlier priority.

In summary, US 7,222, 078 will have a priority date of at least May 1994. This is important because only publically available information from before that date can be used as prior art, ie. material that can be used to argue that the patent shouldn't have been granted. Therefore, although US 7,222, 078 was filed in December 2003, Word 2003 (which was released before that date) cannot be used as prior art because US 7,222, 078 is treated as though it were filed in May 1994 (and possibly even earlier).

So if we want to demonstrate that US 7,222, 078 shouldn't have been granted, we will ideally need to find evidence of a system that was in use before 1992 that includes all the features set out in claim 1. The good news is that since US 7,222, 078 was filed after June 1995, it only lasts for 20 years from its priority date. So at worst, it will automatically expire in 2014 and may even expire next August.

Back in 1992, the invention described in US 7,222, 078 may well have been cutting edge fax machine technology and quite deserving of a patent. It's unfortunate that the patent was drafted widely enough that 20 years on it is being enforced against inventors working in rather different areas of technology. In fact this case rather reminds me of the the BT hyperlink patent, where an old, broadly drafted patent was optimistically asserted to cover much newer technology.

The BT patent was found not to be infringed by the World Wide Web and the issue of prior art didn't need to be addressed, although some was found. It is unclear what will happen with the Lodsys patent.

Patents vs Designs

Of all the technology patent lawsuits in progress at the moment, the Apple vs Samsung case in Germany (iPad 2 vs Galaxy Tab 10.1) has fed the fires of many an internet rant. The idea that Apple could get a 'patent for a rectangle with rounded corners' has provoked widespread incredulity and has been painted as (another) sure sign of a broken patent system.

There's just one problem. The 'rectangle with rounded corners' patent is a design patent.

Although that looks like a prime example of legal hair-splitting, it's actually an important distinction. In the US, a utility patent is what most people are talking about when they talk about patents. Utility patents protect new inventions and contain a technical description of how that invention works. Design patents on the other hand protect the three-dimensional shape of an object. The aesthetics or 'industrial design' if you like.  Unfortunately (although understandably) this distinction is usually lost and design patents tend to be seen as just another utility patent. Hence all the irate commentary.

In Europe, things are a bit less prone to confusion. A patent covers the technical details (equivalent to a US utility patent) whereas a Community design right covers the aesthetic details (equivalent to a US design patent).

The key thing about Community design rights (or design patents) is that they are extremely specific. So for example USD 633087, is (one of many) Apple design patents for laptops. Does that mean that Apple has a monopoly on clamshell style laptops and that nobody else can make a portable computer with a screen section hinged to a keyboard section. Of course not - it just means that nobody else can make one that looks too much like a MacBook.  Also check out the single patent claim - "The ornamental design for a portable computer, as shown and described." That's it. No generalisation, no fancy legal language. What you see in the pictures is all Apple get.


Likewise, the Community design right at the heart of the Apple vs Samsung dispute, only gives Apple a monopoly over rectangles with rounded corners that also happen to look like an iPad. In this case, Samsung's rounded rectangle was found to be too similar to Apple's rounded rectangle. However, as ably demonstrated by Sony, there are other ways of making a tablet computer that neatly avoid Apple's designs.

One to read

One of the great things about the internet is that you never know what gems you might find by following a link in a throwaway comment. As a case in point, I found this excellent article today on thisismynext.com. For those that don't know, thisismynext is mainly a technology news site but one of their editors, Nilay Patel, writes the odd article on patent matters as well.

I thoroughly recommend taking a look at the article and I'm definitely looking forward to Nilay's next patent piece.

- Richard

America Invents - Part 1

A number of news sites have reported that H.R. 1249, otherwise known as the Leahy-Smith America Invents Act was passed by the US Senate last Thursday (8th September) and has been sent to President Obama to be signed into law.

The America Invents Act included various provisions intended to streamline the US patent system and harmonise it with patent systems operated by most other countries around the world. Probably the most controversial part of the Act, was the move from a 'first-to-invent' to a 'first-to-file' system

Under a first-to-file system, if Alice is the first person to file a patent for an invention she will have the right to that patent. If Bob was working on the same invention before Alice but files his patent after she does, then he will be out of luck – Alice will still have the right to the patent. Under a first-to-invent system it is possible, in principle, for Bob to be awarded the right to be awarded the right to the patent, even though he filed it after Alice. Wikipedia has a helpful summary of both systems.

Moving away from first-to-invent has been widely criticised as giving too much power to large corporations to the detriment of the small inventor. Much internet commentary has focused on the supposed ease with which those corporations will be able simply steal inventions from those small inventors and then, with their greater resources, quickly file a patent, leaving the hapless small inventor with no way to challenge the theft of their inventions.

Put like that, first-to-file does seem terribly unfair. However, in my mind, this 'lone inventor vs the big bad corporation' argument does miss a couple of points.

1. First-to-invent is great in theory but not so great in practice. Any small inventor claiming the rights to a patent will need to instigate interference proceedings against the patent owner. These are basically a court case to decide the issue – and they're not cheap. I read one article (in an extremely reputable IP blog), stating that interference proceedings could cost up to $500,000. Lets assume that figure is wildly exaggerated and is out by an order of magnitude - $50,000 is still an awful lot of money for the small inventor. To me, first-to-invent seems like more of a hypothetical security blanket than a practical deterrent against that big bad corporation.

2. First to file cuts both ways. If a small inventor beats a large corporation to the patent office and files a patent for a new invention first, he/she doesn't have to worry against interference proceedings being launched against him/her, despite the fact that the large corporation would presumably be much more likely to have $50,000 lying around to do just that. And wouldn't that large corporation make a tempting target to approach for a licensing deal?

3. At the end of the day, litigation is expensive. Regardless of whether a patent is granted under first-to-file or first-to-invent, it is far easier for a large corporation to enforce their own patents against a small inventor, to challenge any patents owned by the small inventor in court or, in the worst case scenario, simply to infringe the small inventor patent, knowing that the hapless small inventor will likely not have the money to sue for infringement.

No patent system is perfect and I believe that first-to-file vs first-to-invent actually makes very little practical difference. That being the case, why not have a US patent system that is more in line with systems operated throughout the rest of the world? Having a broadly equivalent set of rules throughout the world is surely a good thing making patents easier to use for everyone, regardless of where they file.

Patent claims - when less is definitely more.

Claims are the most important part of a patent. Normally, most of a patent will be taken up with describing what the invention does and how it works. The claims on the other hand set out the legal boundaries on that invention and define what the owner of the patent can or cannot prevent a competitor from copying or otherwise using.

There is an inherent contradiction in any patent claim. On the one hand, they do need to clearly define the invention so that anyone reading the patent can understand what it is that the patent owner is trying to prevent them from doing. On the other hand, they are normally as general and all encompassing as possible. I think Vroomfondel the philosopher (with apologies to Douglas Adams) summed it up best when he demanded "rigidly defined areas of doubt and uncertainty."

With that in mind, it isn't really surprising that the language used to write patent claims can get a bit contrived. To use a slightly facetious example, imagine two claims for a chair. (If you're a patent attorney, please also gloss over the less than rigorous drafting. Thanks.)

a)   A wooden chair consisting of an upholstered seat, four supporting legs fixed to the underside of the seat and a back support extending generally upwardly from the seat.

or

b)  An article of furniture comprising a seat and at least one supporting leg attached thereto.

Claim a) is pretty restrictive or narrow. With a bit of imagination, it is describing a fairly conventional style of chair. The image that comes to my mind is a kitchen or dining room chair but with a bit of effort (and a generous definition of 'supporting leg'), I can just about stretch that image to include an armchair. However, claim a) will only prevent rival chair makers from making or selling a limited range of chairs. Any competitor that sells a four legged stool (no back support) won't be particularly concerned by this patent . Similarly, competitors selling plastic or metal chairs (not made of wood) have nothing to fear.

Claim b) on the other hand is very general or broad claim. Almost any chair, and many other bits of furniture, will include a seat and one (probably more) legs . Metal, wood, plastic, cardboard - it doesn't matter. The claim doesn't specify a particular material so all materials are covered by the claim. Similarly the claim doesn't specify an exact number of legs. Competitors making three legged milking stools, one legged shooting sticks, or 22-legged designer chairs will all be blocked by the patent.

 Less is more.

- Richard.

What are patents for?

I've seen many answers to this question on various discussion forums. Generally it is answered by asserting that patents are supposed to promote innovation, protect inventors and/or their companies or "promote the Progress of Science and useful Arts." as per Section 8 of the US Constitution.

I would argue that all those answers are correct but that the underlying reason that explains why they're all correct is often missed.

Although not stated explicitly in the legislation, the core concept behind any patent system is a bargain between the inventor and the State. This can be paraphrased as 'you agree to tell the public all about your invention and in return we give you a temporary monopoly on that invention within our borders'. In practice, the requirement to tell the public all about the invention is met by publishing the patent application describing the invention and ensuring that a patent application must disclose enough information that the skilled person can recreate the invention.

This bargain has a number of knock-on effects. By offering an incentive to disclose the details of an invention, patents help to disseminate the knowledge underlying that invention and so 'promote the progress of Science and useful Arts.' Allowing a temporary monopoly on an idea encourages other inventors to 'invent around' the monopoly in the happy knowledge that if they can do so, they too will obtain a monopoly on their new way of doing the same thing. This encourages innovation. Finally, the establishment of a temporary monopoly is of course a powerful aid for the inventor seeking to capitalise on his invention, whether by starting his own company or selling his invention to another company. In that sense, patents can protect the small inventor or company.

On the whole, patent legislation says a great deal about what can and can't be patented, who can apply for them and how one sets about making an application. However, they don't say very much at all about why the legislation has been enacted in the first place, or what it is intended to achieve. For example, the preamble to the UK Patents Act merely states that what you are about to read is intended to establish a new law of patents. Similarly, the preamble to the European Patent Convention simply refers to a desire to "strengthen co-operation between the States of Europe in respect of the protection of inventions", without saying anything about why this protection is necessary.

This is probably because current patent systems have evolved from earlier legislation, so that the rationale behind the system no longer needs to be spelt out. Wikipedia has an interesting article on the history of patent law (http://en.wikipedia.org/wiki/Patent) and provides a good place for the interested reader to start.

- Richard

Welcome

Patents and patent law have been a prominent feature of the technology press lately. A spate of lawsuits between assorted mobile phone manufacturers, not to mention some high profile patent acquisitions, have attracted a great deal of commentary on various websites. I've seen interesting (and informed) debate and I've seen genuine and perfectly reasonable questions. More often than not though, I've seen variations on a theme of 'they got a patent for that?', followed by a rant against broken patent systems that stifle innovation. Add vitriol to taste.

In many ways this isn't surprising. Patents are legal documents, with all the complication that implies. Applying for a patent is a lengthy process with a great many (and sometimes arbitrary seeming) hoops to jump through. Patent disputes can involve a lot of hair-splitting about the correct choice and meaning of particular words. All in all, the patent system isn't terribly transparent at first glance. Or second. Or third for that matter

However, strip away the wordy detail and I firmly believe that patents are basically simple beasts at heart. The hoop jumping involved with patent applications are (mostly) there for a reason - and quite often for the benefit of the applicant. With a bit of practice, they can even be readable. 

That belief is why I started this blog. I plan to post on various topics ranging from bits and pieces of patent law, to thoughts on whatever patent cases make it into the news. 

Before I start though, I should add an important disclaimer. I am not a patent attorney, part -qualified or otherwise. I have spent my career working with patents, as an examiner, as a patent searcher and as an IPR (intellectual property rights) manager, so hopefully most of what I write will be on point. However it should not be relied upon in any sense as legal advice.

If any actual attorneys find their way here, your comments will be most welcome!

- Richard.