Posted on March 28, 2012 in IP by Comments Off

TechWorld reports that Graphics Properties Holdings, the post-bankruptcy incarnation of Silicon Graphics, is suing mobile device makers for infringement of a graphics-related patent. Smartphone manufacturers are no strangers to patent lawsuits, of course, but I think that this latest salvo is a good illustration of how the dual regimes of patent law and rent-seeking litigation do nothing but divert resources from actual innovation.

The patent in question, number 8,144,158, describes a “rendering circuit,” the novelty of which appears to lie in the use of floating-point rather than fixed-point data to create images, thereby allowing for more complexity and accuracy in the resulting images.

As an absolute layman in the field of graphics technology, all I want to point out in the actual patent is this: the “Background Art” section of the patent description points out that the advantages of operating with floating-point data are well-known, and that a large part of the reason why floating-point data was not previously used lay in hardware limitations. A good question, then (and one that the manufacturer’s lawyers are probably studying like crazy), is whether a graphics person would think it obvious to use floating-point data in the way the patent describes, given the existence of suitable hardware. If it would have been obvious, then the patent should be invalidated under Section 103 of the Patent Act. If not, then Graphics Properties, under the law, and assuming nothing else is wrong with the patent, is entitled to damages and/or possibly an injunction.

Either way there is a clear policy problem – the fact that low-quality patents enter the system and cause wildly objectionable allocations of resources (either through unjustified licensing fees paid to avoid litigation, or the litigation costs incurred in correcting the patent office’s mistake), or the fact that a company that doesn’t practice or in any way promulgate its invention has rights against a party that does give the public the benefit of the invention. The second problem would be mitigated somewhat, at least morally, if so-called “innocent infringers” were protected – but they aren’t.

Timothy B. Lee points briefly but eloquently to the moral argument against patents, and more importantly, sets that moral argument atop a strong empirical showing that figuring out the patent morass is essentially impossible in certain fields. Graphics Properties might have an enforceable patent – but Apple, Samsung, HTC, and others put the invention in your pocket. Enforcing the patent, if it’s valid, doesn’t promote progress, or magically force companies to innovate more – it removes that invention from the field, it forces practicing companies to spend money to license or attack the patent, or “innovate around” it – or simply stop using that presumably beneficial invention. Mark Lemley posits that innovation occurs despite patent law – because companies simply ignore it. Here, patent law is an agent of stagnation – it allows the ghosts of companies past to haunt companies that actually do things. As a society, we probably should not be empowering ghosts.

Posted on March 21, 2012 in Patent by Comments Off

The Supreme Court’s ruling in Mayo v. Prometheus, is, by several accounts, a horrible precedent for patent law and research-driven industries. Some background for non-patent-lawyers: Mayo addresses the validity of a patent held by Prometheus Labs, Inc., which claimed a “method of optimizing therapeutic efficacy” that essentially works by increasing or decreasing the administered dose of a compound (6-thioguanine, here) based on measured levels of the compound in a person after an initial dose. The Court invalidated Prometheus’ patents, following this reasoning:

[T]he claim simply tells doctors to: (1) measure (somehow) the current level of the relevant metabolite, (2) use particular (unpatenta­ble) laws of nature (which the claim sets forth) to calculate the current toxicity/inefficacy limits, and (3) reconsider the drug dosage in light of the law. These instructions add nothing specific to the laws of nature other than what is well-understood, routine, conventional activity, previously engaged in by those in the field. (page 13 of the opinion)

For more information about the decision, Dennis Crouch has posted an excellent and thorough analysis of the opinion at PatentlyO. On its face, the decision is a clear rejection of broad patent eligibility for claims that apply laws of nature, with particular attention paid to fields associated with medicine. Going deeper, Gene Quinn, of IPWatchdog, has posted a detailed criticism of the decision that argues, in effect, that SCOTUS has applied a false reading of patent law, and in so doing, has “nullified §§102, 103, and 112 [of the Patent Act].” The Mayo ruling may also have implications for the Myriad gene patent litigation – Mr. Crouch at PatentlyO speculates that Myriad (where the Federal Circuit previously ruled that DNA sequences can be patentable subject matter) may be vacated and remanded. Courtenay Brinckerhoff, of Foley & Lardner LLP, notes that “[m]any may view the Court’s decision as upsetting the status quo of patent-eligibility….”

Implicit in the ongoing criticism of the Mayo opinion is the assumption that patents are necessary to the continued vitality of American research industries. This is, at least, arguable – Mark Lemley, in his paper Ignoring Patents, argues that companies in patent-intensive field simply ignore patents. Heidi Williams of MIT, in an excellent working paper, noted that intellectual property (within the empirical context of gene patents) tends to decrease, rather than promote, downstream innovation by researchers.

Many advocates of patent reform point to the “patent thicket” and the inability of companies to efficiently and effectively determine who they may owe royalties to. As a policy issue, health advocates oppose the ability of companies to prevent medical practitioners from using patented treatment methods, or at least charge a premium for their use. The Mayo decision may significantly alter the patent landscape by significantly shrinking the universe of protectable subject matter and imposing stricter review of claims based on natural laws. If it in fact does so, it would be well for reform advocates to keep a close, data-gathering eye on the biotech industry. With fewer patents to rely on, genuine market competition will become a larger factor in the success of the industry, and empirical evidence of growth would help contribute to a more informed public debate on the necessity of IP laws in general.

Posted on March 7, 2012 in copyright, Fair Use, open education by Comments Off

Continuing our discussion of UC Berkeley’s new class notes policy, I’d like to argue that (1) permissions-based policies, such as those embodied in Creative Commons licenses, create less uncertainty and better serve the purposes of professors and students, and (2) to the extent that education is perceived as lying beyond the free market, the invocation of copyright law is counterproductive at best, and hypocritical at worst.

Let’s assume, for argument’s sake, that teaching is a unique profession, one worthy of special consideration. For convenience’s sake, I’ll call this the sui generis position. This appears to be the position of some professors’ writings in support of policies that (as discussed previously) claim copyright protection in class lecture notes to a legally questionable extent. Such support essentially argues that content created by professors and presented in classrooms should be more thoroughly protected against unauthorized use and reproduction.

Within the sui generis position, there is another position, described by Professor Ignacio Chapela in a writing reproduced at Richard Brenneman’s original post about Berkeley’s new policy:

Copyright is clearly only a subservient appendix to the commodification and privatization trends in professional training, but one that is self-defeating and absurd even in its own terms.

This quote follows a refutation of the notion that recordings or notes of the educational process are equivalent to the educational process; Professor Chapela will resist “… the commodification of my life as a teacher and researcher….” So a belief in a fundamental distinction between education and other vocations that create content can lead to two fairly divergent positions with respect to copyright protection. I think that Professor Chapela’s position is more consistent with the basic precept; the enhanced protection advocates seem to assume that market activities present a threat to their activities – in other words, the singular status of education is not something inherent (and therefore safe), but rather an imposition, an artificial separation between education and other social activities that must be maintained through policy.

One of the primary failings of a policy like Berkeley’s is that it ignores the fact that several disparate interests exist within the spectrum of work that a professor may use in teaching his or her students. As it stands, the policy assumes an adversarial relationship between student and professor – that students learn only by the leave of the professor, and that they are at all points in the educational process suspected of divulging pedagogical secrets to for-profit notes distributors.

Policies based on restrictions can, in fact, do a good and thorough job of addressing adverse effects. They are also basically useless at promoting positive effects. Permissions-based policies, in the educational realm, offer far more certainty for students as to what is allowed; they are explicitly told what they may do, as opposed to vague warnings about professors may forbid them from doing. Insofar as a primary goal of Berkeley’s policy is to prevent commercial dissemination, a professor might attach any of three Creative Commons licenses that explicitly prevent commercial use to any prepared materials distributed to students. Such a restriction still allows for the possibility of a defense grounded in fair use, even for commercial uses, but that uncertainty is certainly not lessened in a policy as restrictive as Berkeley’s. The cases that proponents of Berkeley-type policies refer to, as well as the cases I discussed in the previous installment, are by no means strong supports for such policies.

Right around the time period (the early 2000s) when legislators and academics in California were batting about the issue of increased protections for lectures, researchers at the University of Michigan were thinking about the problem of low-quality notetaking by students. Collaborative review, reorganization, and rephrasing of concepts are some of the tools suggested by the UMich paper – such activites, in a balancing act between professors’ and students’ rights (or, phrased differently – between professors’ rights and professors’ responsibilities), should be encouraged by school policies. This cannot be properly accomplished by merely emphasizing professorial copyright; that, as Berkeley’s attempt shows, ends up distorting the teacher-student interaction into the very model of the market-style contractual exchange the sui generis position denounces. Permissive policies would be as effective in getting students to take note of the fact that rights may inhere in educational presentations (more so, if you want them to understand what those rights actually are), and would also emphasize, as a matter of policy, the fundamentals of good note-taking.

As an ideological issue, it is troubling that educators would support a policy blatantly ignoring fair use, when fair use has been invoked (successfully or not) in quite a few instances where educators are the accused infringers. As a policy matter, it would provide normative and legal consistency if universities would ensure that the stances adopted at both ends of the spectrum – as accused infringers and as aggrieved rightsholders – were at least compatible, if not identical.

In the next and final post on the subject, I’ll delve into the specific characteristics of a permissions-based policy, examining what language and terms such a policy might incorporate, and how its provisions provide the same substantive protections, while providing a better balance of rights than, restrictions-based policies.