Internationalized Domain Names are domain names which do not use the English a-z and 0-9 characters previously required by the domain name system. Under the new system for example, a domain name might be entirely in Chinese characters. The aim is to make it easier for those users who do not have English as a language to use the Internet (if you look at the primary language in the home location of most users, there are more Internet users from non-English countries than from English).

Internationalized Domain Names have been around for quite some time though. Software developed in the late 90s and early 2000s enabled translation of Latin characters into other character sets. So while the ability to use different characters in domain names has been available for quite some time, it hasn’t officially been baked into the domain name system (sometimes even the Internet moves slowly!).

Any change to the domain name system brings with it new opportunities for abuse. Hackers have had many years to think of ingenious ways to divert users from their intended destination. One of the most common was to register a domain name in a character set that looked visually similar to English, but being a different character set, would be an entirely different domain and different website. For example, the Cyrillic characters ‘а’, ‘е’, and ‘р’ all look very similar to the Latin ‘a’, ‘e’ and ‘p’. Imagine trying to tell the difference between “paypal.com” and “paypal.com”!  Specific case rules were built into browsers to combat these issues.

Whether this will be a significant issue when international domain names are more widely used remains to be seen.

[Photo credit: hermanusbackpackers']

1. The GPL isn’t magic

Even after twenty years, the GPL still seems to have a certain magical aura and in part that has been the reason for its success. But reality is that the GPL is much more mundane than has been made out. It’s just a private contract between two parties ... or is it?

Perhaps the most interesting and still debated technical point is whether the GPL is a bare "licence" or a "contract", and that’s really a point of interpretation based on the jurisdiction. In summary, if the GPL is enforcing obligations over and above what is governed by copyright, it’s a contract. If it’s just providing a permission to do something, it’s a licence. Breach of a licence would be a copyright infringement issue. Breach of a contract is a contractual issue. So it depends, and in some countries it just doesn’t matter.

2. The GPL needs copyright

Regardless of whether the GPL is a licence or contract, it relies on copyright.

This point is often missed and is fundamental the GPL. If I own copyright in some software, I own the exclusive right to permit reproduction of that software (and in most countries, some sort of distribution right). If I own the exclusive right to permit reproduction, I can dictate the terms on which that reproduction is made. In this case, I make those terms the terms of the GPL.

If we didn’t have copyright, you could just reproduce the software without my consent and without agreeing to my choice of terms. (Obviously I could just keep the code secret as a practical step, but open source isn’t really about confidential information). So copyright, open source and the GPL are actually best friends, not enemies.

3. The GPL isn’t a model document (for something designed to be used globally)

Now I’m not saying it’s a bad document, but if there are any complexities from the GPL, they come from within itself. At least in earlier versions it was very US centric, non-legalistic (when some terms of art were required) and inconsistent. Much of this has been improved in the recent version, but there remains issues in using the one document in different legal systems all around the world (such as what is meant by “distribution”).

None of that means open source is a poor business model or the GPL is ineffective at achieving what it’s designed to achieve. It just means that relying on a strict legal interpretation of the terms is more difficult.

4. The GPL has a strong following of enthusiastic supporters

For me, this is the key point. Ignoring all the legalities and issues, there’s a community understanding of what the GPL “should be”, not necessarily what it is. At very least as a public relations issue, working against that community spirit is a disaster. There are many examples of non-litigious “enforcement” of the GPL through community pressure. And rightly so, after all it’s the community that has often done the heavy lifting in development. As a consequence though, something more often enforced through community pressure than litigation means the legal issues raised are somewhat academic.

Even the current version of the GPL has issues, including issues relating to the global nature of software, inconsistent copyright regimes and difficulties with interpretation. On top of that, unlike many other “business grade” software licences, there is no indemnity – so if something goes wrong, you’ll likely be without coverage. The GPL is a popular licence and will continue to be. It’s just not any more or less complex than other licence agreements.

[Photo credit: jin.thai]

Please do go and make your suggestions at the newly refurbished www.iphalloffame.com.

You can also see the announcement over at the IAM Blog.

1. Would it allow free online content to all?  How would it reward creativity?
2. Would it allow free medicines to all?  How would it reward research and development?
3. Would it eliminate counterfeiting?  How would you know?
4. Would you simply do away with intellectual property altogether? 

The truth is, you can't design the perfect intellectual property system.

No one can.

What you can do is understand how it works, where it can improve, think and plan strategically, act and iterate.

That doesn't mean you should not generate and participate in public debate about how the intellectual property system should evolve.

(And contrary to the views of some recent commentors on this blog, I do believe it needs to continue to evolve to continue creating value.)

[Photo credit: Stuck in Customs]

We've often talked about the need to use a common language, and the language of business.  Sure.

Communication isn't just words.  It's culture, it's body language, it's positioning and so many other things.  The culture and positioning of the IP world at large at the moment has got more than a few feathers ruffled (see Mary Adam's comment on this blog post for example and for a good illustrator of why this may be justified see some of the comments further below).

More than anything, the IP world needs to stop yelling and start listening to the culture(s) they are trying to communicate with.  That's the broader community and the business world.  IP needs to grow bigger ears.

If not, you might as well be saying "The use of closed school buildings in the atmosphere, let us make a grilled family!"

(Footnote - both garbled messages were taken straight from machine translations.)

[Photo credit: seanomatopoeia]

Amongst the general public this is a frequent issue raised - what if someone patents the technology but fails to bring it to market for the benefit of everyone?  Shouldn't patents reward bringing the technology to commercial use, shouldn't the period of monopoly depend on that?  Well maybe that could actually work.  (You get say 10 years and then another 10 after providing evidence of commercial use.)  But that's a separate discussion.

So, patent lawyers the world over will cite compulsory and crown use licenses as the eternal fix-all for such situations - if you don't use your patented technology within a set period (usually around 5 years) then in almost every country in the world, a third party has the ability to ask the court for a licence.

Sure.

But who has heard of this problem actually being real let alone widespread?  How many cases are there where the technology never makes it to market at all?  (And we're not talking here about technology utilised in some but not all countries, such as pharmaceuticals.)

There are very few if any proven examples of this.  Why is that?

This was all sparked by a recent question sent to me from Denmark via the illustrious Jeremy Philips:

"Do you know of any interesting scientific evidence or comment that points directly to (specific) patent owners withholding patents? ...I am speaking with a non-patent audience - as business people, they are very interested in practical illustrations of course..."

Here's part of my answer, what would you add?

"I'm not aware of any clear-cut cases.  The problem is that there is such a large gap between filing a patent application and getting a product to market that it is not a simple task at all to interpolate that a product was kept from the market after being 'patented'.
There are all sorts of reasons why the product may have failed, or may need further technology to be developed first.  Or indeed, that simple commercial considerations suggest investment in marketing rather than this technology today."

[Photo credit: Curious Expeditions]

Even today there are no unified definitions for intellectual capital and intangible assets.  So people still miss each other when discussing how to manage them. 

Maybe we shouldn't bother.  Maybe we should just get on and manage 'I-Stuff', see what happens and iterate.

What do you think?

[Photo credit: macwagen]

1 - There seems to be consensus in the IP Community (but not always elsewhere) that IP is good and drives innovation;

2 - There is no consensus on the role and value of non practicing entities;

3 - There is little consensus (and perhaps not enough understanding) about how to effectively communicate the value of IP in real world practical business terms.

What do you think?

[Photo credit: Litandmore]

This time the cover story at Business Week is their annual survey with Interbrand of the global top 100 brands.  We've blogged about this before.

So, with all of the noise lately about the difficulties of getting intellectual property into the boardroom and properly communicating value when you get there, you'd be forgiven for thinking that there's been a glitch in the system.

Coca Cola sells carbonated water and flavouring, their brand is worth nearly 69 billion dollars.  Coca Cola is not a soft drink company, it is a brand management company.  Does anyone seriously think that the board room is not closely watching the management of the IP protecting the brand.

Maybe these guys in the global top 100 are outliers - maybe they are special.  One of the reasons why they are in the top 100 is because they invest heavily in their brands.  Maybe that means we're talking in circles here. 

Isn't it supposed to be the world's best practices (in any field) that other companies should be trying to emulate?  If that's right, shouldn't the success of these companies be a guiding light to others about how to invest in and manage their intellectual property?  Shouldn't that be enough (or at least a very good start)?

Perhaps what we're really talking about here is a general lack of discussion about intellectual property in the broader business community, rather than a complete absence of IP in the boardroom.

Interestingly, a global search for 'intellectual property' in all Harvard Business Review articles revealed 16 articles in the past 12 months.  (Some of these only refer to intellectual property in passing and only once in the article.)

Maybe the focus should be on getting intellectual property more widely discussed, as a discipline from which to create opportunity, like sales, marketing, finance and so on, not a legal problem.

http://www.abajournal.com/blawgs/blawg100_submit

Don't nominate us, just tell us how we can become more useful for you.  Though we're always delighted about being on these lists, we'd appreciate your feedback much more.

Perhaps none of the speakers in the IP and IA management track in last week's brilliant CIP Forum in Goteborg, Sweden were qualified to speak about what appears to be the most pressing issue for the future of IP management.  You see, none of the speakers in this track were from small to medium enterprises (SMEs).

Let's back track a minute and then I'll explain.

Each of the speakers on the IP Management panel on the second afternoon were asked to spend a few minutes speaking about what they see as the major issue defining the future of intellectual property management as we head to a knowledge economy. 

Here's what I had to say, please do come and join the conversation and let us know what you think.

The biggest pool of patents is not at Samsung, or IBM, or LG or IBM or Microsoft, it is in the SME space.

We consistently hear (and at the conference, from the likes of Eli Lilly, Microsoft and Philips) that most innovation is occuring at the SME level. 

Clearly most IP management is occuring there as well.

We have all heard about and constantly deal with IP silos within companies, managing IP as a profit centre (and not a cost centre) and communicating value to the Board.

Well, the vast majority of IP management has no silos, no profit centre, no cost centre, indeed no centre at all.

The vast majority of IP management is done where there is no IP function.

The challenge then, is to develop a set of principles and practices that are transportable across SMEs to large corporations.  Accounting principles apply this way, as do marketing, sales, product development, indeed every other function.

Large entities have a great interest in helping SMEs to acheive this.  They themselves often say that this is where they look for innovation.  If they are to acquire IP from SMEs, then they would much rather that it had been carefully nurtured prior to acquisition.

Those of us charged with working in or with large and well resourced entities have an opportunity to make a substantial impact by leading the development of these tools.

[Photo credit: Clint M Chilcott and inventor of 'Light Emitting Diode Persistence of Vision Helmet']

I'll tweet interesting insights from the sessions I attend at www.twitter.com/ipthinktank

Please do come and join in the conversation.

‘Open’ business models do not remove legal risks traditionally associated with closed and proprietary systems.

Microsoft was recently ordered to stop selling Word and other office software due to an XML document formatting option infringing a software patent owned by i4i. Microsoft has been moving away from its proprietary “.doc” format for a number of years now in an effort to introduce a new open XML format. While the move to an open format has had benefits in interoperability and addressing some of Microsoft’s critics (especially anti-competitive and open source), I’d wager the strategy has had some doubters inside Redmond.

Here’s what the judgement means in practical terms.

1. No, a technical workaround by Microsoft would not be difficult
2. Yes, the difficulty of managing the supply chain and replacing all existing physical versions of Word to comply with the current order would be difficult and inconvenient (very)
3. No, this judgement is unlikely to damage Microsoft’s reputation with end customers (most probably don’t really care about the technicalities of XML document formats, or even software patents for that matter)
4. No, this isn’t a great opportunity for Google Apps, OpenOffice, etc, etc (anyone who has actually tried to use those or similar products for serious, document heavy business purposes will know that those products are not at the same stage of maturity as Word and Excel)

I’ve no doubt that the judgment is just one step towards a commercial solution and, in that regard, establishes some useful parameters. The cost to implement a technical fix is most likely insignificant, so it’s unlikely to feature in any calculation. However the cost to manage the supply chain is most likely much more significant. What’s the cost of the alternative? What’s the cost of the appeal? What are the chances of the appeal succeeding (in this case Microsoft have some technical legal issues with the grounds of appeal which limits its opportunity)?

Another important factor is Microsoft’s product revision cycle – the impending release of Word 2010 will almost certainly introduce a non-infringing replacement product. It’s also possible for Microsoft to “patch” existing versions to make them non-infringing. Any settlement therefore needs to take into account the product’s definite and short life span.

Notwithstanding the opportunity for this matter to be settled, it highlights an often overlooked difficulty with open standards. Just because something is open doesn’t mean you can ignore legal risks more traditionally associated with closed and proprietary systems.

(Though, for those that want them, here are the CAFC opinion, Questions, Petition for Certiorari and Amicus Briefs - (thanks to Patently'O).)

Associate Professor Adam Mossoff from George Mason University School of Law wrote in about this great podcast as follows:

Dear Mr. Bucknell,

You run a great blog dedicated to patent law issues, and so I thought  you may want to alert your readers to a podcast debate between Professor  Michael Risch (West Virginia University) and Professor Joshua Sarnoff  (American University) on the Bilski case. They each filed competing amicus briefs before the en banc panel last year, and so they were ideal debate opponents. I moderated the debate, which is why I’m alerting people to it.

Josh and Michael do an impeccable job covering the legal, policy and historical issues in the Bilski case, and they even do a little predictive gaming about the case at the end of the debate. This 30-minute podcast is a great summary of the case and all of the issues that will be raised in argument -- and ultimately in the opinion itself.

The podcast is part of a podcast series, called SCOTUSCast, which is run by the Federalist Society. The purpose of SCOTUSCast is to provide short summaries of Supreme Court cases, and, keeping with the Society’s goals, the debate between Josh and Michael is a balanced presentation of all sides of the debate.

The podcast is available for download at iTunes (via the SCOTUSCast podcast series), or at the Federalist Society’s website, which has a
nice description of the case and links to the court opinions and other Bilski-related documents.

http://www.ww.fed-soc.org/publications/pubid.1587/pub_detail.asp

Best regards,
Adam

My take on it is that CIPOs are out there trying to change long held views of the world and trying to communicate about concepts that are global and constantly evolving.

What do you think?

"Duncan, Amazing list of thoughts.  Yes, IPBC was quite a stimulating conference.  A powerful set of ideas.  Thank you for writing yours down.  One of the thoughts that rises to the top for me is the idea that the CIPO or the aspiring CIPO needs to be fearless, needs to be willing to stand on the parapet, etc.  Why is this?  Is this because IP in corporations is an entrepreneurial field right now?  Or is it because senior leadership in most companies has little education in the field?  Or is it because the theory is in its infancy?  Or is it because, as you suggest, that the role of the CIPO is first of all as the leader of organizational change--change in strategic thinking, change in organizational roles and responsibilities, change in how the organization defines itself?"

(Photo Credit: BombDog)

Let me know what you think. 

Don't be fooled by the 140 characters - there is quite a lot to digest in all of this.  (Note for those trying to follow in Twitter - @DuncanBucknell has changed to @IPThinkTank.)

CIP Forum in Sweden is coming up in early September - it promises to be an incredible few days. I'll be presenting on IP Management and tweeting in between times.

DuncanBucknell can we leave the baggage of the industrial economy behind and instead focus on the benefits of IP in the knowledge economy? #IPBC

DuncanBucknell what processes are you putting in place to get the ROI you should demand for your IP investment? #IPBC

DuncanBucknell LESI's 1 day licensing course sounds like a great idea - #IPBC

DuncanBucknell the relationship between Strategy and Process - combine the 6 sigma blackbelt with IP Strategy - #IPBC

DuncanBucknell Need to further away from allowing IP to managed by legal & as a cost to by business and as a profit centre - #IPBC

DuncanBucknell HP built a separate IP Strategy grp with diverse skillsets (but not legal) - they report into business and work closely with legal #IPBC

DuncanBucknell B4 IP protected the business, now IP is the business - but who will manage these - IP people or Bus people - #IPBC

DuncanBucknell & choosing those to speak @ RT @thinkfireip: #ipbc meta observatin: speaking at conferences can be part of the communication strategy for ip

DuncanBucknell AST (defensive patent aggregator) type of strategy is not about being a long term player - more about short term freedom to operate #IPBC

thinkfireip #ipbc bill Barrett of liquid logic: you must convey value through a story

DuncanBucknell IP Strategy plays a bigger role in smaller businesses - #IPBC - not sure I agree...

DuncanBucknell Chicken or egg - IP strategy first or business strategy first - #IPBC - has to be iterative - each informing the other

DuncanBucknell how can 'IP bubble' ask for more prominence if can't get this right - RT @thinkfireip: #ipbc 2/3rds of deals have title issues initially

DuncanBucknell Flexibility in deploying different approaches over time and across aspects of your business re IP - #IPBC

DuncanBucknell The term 'strategy' is definitely overused in the context of IP - #IPBC

DuncanBucknell do knowledge based businesses need a portfolio of strategies applicable to each area of business? #IPBC

DuncanBucknell understanding which technologies you need to control to achieve your goals is key skill in knowledge economy #IPBC - applies 2 open innov 2

DuncanBucknell So why buy at all? RT @DuncanBucknell: Defensive patent aggregators will take a license if necess isntead of purchase - #IPBC

DuncanBucknell Acacia model - later you leave it in neg & lit the higher price they ask - how doe this relate to damages calculations - #IPBC

DuncanBucknell Is it only after being rebuffed that an inventor will go to an NPE such as ACP or Acacia? Don't they also look for IP? #IPBC

DuncanBucknell Freedom to operate analysis - some industries v complicated, sure but simply ignoring the issue is fraught #IPBC

DuncanBucknell Freedom to operate - steering clear sounds like a v bad idea - wilfullness spectre alone is not sufficient - need to do at least some #IPBC

DuncanBucknell Freedom to operate / freedom of action - are large companies not clearing sufficiently? - #IPBC is this a factor in rise of NPE?

JackDTodd Acacia: no one wants to enforce "weak" patents; no one signs up with an aggregator unless there is actual liability. #IPBC

JackDTodd Defensive patent aggregators ought to engage offensive NPEs to pursue the companies (potential clients) who have not signed up. #IPBC

DuncanBucknell Why don't defensive patent aggregators withdrawing these patents to stop maintenance fees? Bc they want to try recover some $ - #IPBC

DuncanBucknell Is dis-aggregated R&D together w low willingness of larger companies to license driving NPE phenomenon & impact of open innovation? - #IPBC

DuncanBucknell non practiced patents from entities who are making other products - an interesting corollary to NPE issue - #IPBC

DuncanBucknell RPX - past activities of pat owner is impt part of assessing whether to buy - does this incent NPEs to sue 1st so can sell later - #IPBC?

DuncanBucknell defensive patent aggregators - maybe it's ok to focus on US - NPEs aren't as much of a problem elsewhere - #IPBC

DuncanBucknell defensive patent aggregating companies - are they really thinking about global patent portfolios as well or just US? #IPBC

DuncanBucknell Subscriptn services like RPX and AST - if you subscribe for 1 year do you get all prev licences, and do they continue after that year? #IPBC

DuncanBucknell If RPX sell patents - will protect members with perpetual licence - #IPBC - this won't be an effective assignment in many countries, guys

DuncanBucknell RPX takes patents off the market for benefit of members (don't assert them) - so also benefiting others - #IPBC

DuncanBucknell Esp. if around IP reputatn RT @tuyettran: What about discussn of brands & IP that includes how social networking affect reputatn at #IPBC?

JackDTodd IP Practioners have allowed IP to become "commoditized." If a commodity, then it must not be valuable. That is the problem. #IPBC

DuncanBucknell It's a great point that people still seem to talk only about patents and trademarks when discussing IP - v narrow - #IPBC

DuncanBucknell Is the new media currently saturated with the point of view that IP is bad? Certainly in online world that must be right. #IPBC

DuncanBucknell Sure - v different models, regulation, etc - RT @DuncanBucknell: Are the IP issues completely different in green tech vs pharma? - #IPBC

DuncanBucknell Brand IP working group - a v useful initiative - get in touch with Caroline Kamerbeek at Philips to join - #IPBC

DuncanBucknell How does the IP industry, with its varied interests etc. get better at coordinating on key issues (eg. software patents) - #IPBC

DuncanBucknell Distinctiveness - anti IP movement uses emotive messaging - which works - #IPBC

thinkfireip #ipbc kamerbeek "stop the legal talk" be open about deals link to innovators, opportunities created.

thinkfireip RT @DuncanBucknell: Has Rembrandts in the Attic done more damage than anything else to the IP function - CEOs all want a Rembrandt - #IPBC

DuncanBucknell Most messages in mainstream media about IP are about fights and litigation - #IPBC

DuncanBucknell Microsoft regularly reporting metrics to Seniro Execs on patent quality, quantity, costs (inc. perception of quality externally) - #IPBC

DuncanBucknell Fearlessness as a critical requirement for CIPOs - comment on Sunday was build the parapet then stand on it, not just head above it - #IPBC

DuncanBucknell Role of lobbying and communications as part of the IP function? - #IPBC

DuncanBucknell Pt about call otions is that there isn't on;y one 'event' in IP - value goes up w each event - file, issue, enforce, licence, etc - #IPBC

DuncanBucknell Call option approach to valuing IP - sure but only as analogy to make the pt that value is uncertain now and will crystalise later - #IPBC

DuncanBucknell As in many situations, demonstrating IP value is easiest done in hindsight and v hard to do propsectively - #IPBC

DuncanBucknell Is internal or external communication more difficult for the IP function? Doesn't this depend on stage / sophstication of the entity? #IPBC

DuncanBucknell Not sure that I agree that you can't over communicate an IP metric you've picked - you have to pick a good one 1st - #IPBC

DuncanBucknell Tying IP value to margins - ie what premium do we get bc we have this IP for this product - #IPBC - sounds easy huh? it's not.

DuncanBucknell Keep reassessing and iterating your IP valuation model - this is to prove value to internal stakeholders so they get it - #IPBC

DuncanBucknell Creatie your own metrics internally if you need to measure value delivered by IP organisation #IPBC

DuncanBucknell Shouldn't companies be sharing their internal IP valuation models - even within industries to start with? #IPBC

AwakenIP Phelps: IP provides legal scaffolding for creating relationships. If open source & msft (oil & water) could get together, anyone can. #ipbc

DuncanBucknell As you set out to navigate your internal organisation - think about how you can help each of the stakeholders - #IPBC

JackDTodd Microsoft: IP/CIPO must be evangelist for IP and must be able to politic with the business units. Must overcome the internal "No." #IPBC

DuncanBucknell biggest mistake in IP - hiding IP function and hiding IP within organisation - #IPBC

DuncanBucknell Critical that you work on gaining trust and credibility within your organisation is just as important as externally - #IPBC

DuncanBucknell it's not so much how IP function is structured but how well you do your job - Ruud Peters #IPBC

JackDTodd Philips: IP team in company must be "connected" or closely aligned/in synch with business units. #IPBC

jmattbuchanan RT @JackDTodd: MUST capture IP internally when it is created or it will be lost and dissipated. CAPTURE, OPTIMIZE, PROTECT/PATENT. #IPBC

AwakenIP Phelps: Having patent licenses with customers and competitors in other countries can help with governmental relationships abroad. #ipbc

DuncanBucknell Depends on context? RT @AwakenIP: Should CIPO come from business, law or technical backgrounds? Split voting results at #ipbc audience.

DuncanBucknell Same for those tryign to implement open innovation RT @DuncanBucknell: Do wanna be CIPOs need to bc students of change management? #IPBC

DuncanBucknell add - don't care about job title - RT @thinkfireip: #ipbc Cipo qualities: communicatn, negotiatn, taking arrows in back, educate, fearless

DuncanBucknell global, explosive, viral - some of the best of open innovation #IPBC and just try to apply old world IP principles to that :)

DuncanBucknell Do you need to be able to protect with patents to do open innovation? #IPBC

DuncanBucknell Imperative for P&G to tap international networks to spread their open innovation efforts - which networks is an interesting qn #IPBC

DuncanBucknell & industry RT @JackDTodd: Session/CIPO: role of CIPO differs based on company (start-up, large company; M&A activity). #IPBC

DuncanBucknell but how to get them to let you speak? RT @thinkfireip: #ipbc being at right meetings to elevate ip function as critical element.

DuncanBucknell Question = how much of this is true open innovatn & how much just collaboration? RT @DuncanBucknell: open innov in pharma Exelixis #IPBC

DuncanBucknell Also attorney's fees if lose, RT @DuncanBucknell: reducing cost of US pat litigati - discovery, court appointd experts? #IPBC

ipdotcom RT @DuncanBucknell Disconnect between IP industry and CEO's understanding of importance IP - a big theme of this conference #IPBC

DuncanBucknell patent litigation cost in the US is a little out of control - Duane Valz (Yahoo) - yeah but what do we do about that? - #IPBC

DuncanBucknell "If you want to get rid of the NPEs, you're burning down the house to get rid of mice" - Ralph Eckardt #IPBC

DuncanBucknell Getting IP on to the balance sheet - sure - but don't we have to agree on some valuation first? #IPBC

DuncanBucknell Ralph Eckardt building a case that enforceability of patents increases R&D spending - (of course), what's next though? #IPBC

DuncanBucknell Incredible that USPTO may be become more application friendly just because they have budget shortage as a result of many abandonments #IPBC

DuncanBucknell Like many, GSK are abandoning many patents & TMs - impressive that they are also bundling some with data for proposed outlicense - #IPBC

DuncanBucknell Damages apportionment - I don't think it is a good idea to have different patent systems for different industry segments - #IPBC US patents

riemannzeta MFM: based on description by panelists, Chinese IP Office may within 10 years become the most important in the world. More efficient. #IPBC

So what’s this all about?

The IIPA recently released a commissioned report (the twelfth in the series) on the performance of US “copyright industries” compared to the US GDP. According to the report, the copyright industries continue to boom, contributing disproportionally to the US GDP and, with continued vigilant fight against copyright infringement, see a rosy future.

It’s a convenient conclusion. And it may be true. But it’s just not possible to tell from the information examined by the report.

The report first groups industries based on whether a significant proportion of the goods they sell would qualify for copyright protection. If most of an industry’s goods would qualify for copyright protection, then it’s part of the “core” (such as movies, music and software). If an industry sells goods which only partly qualify, then it’s part of the non-core copyright industries. Performance of the core and non-core industries is then measured and compared to GDP.

Ars Technica points out some issues with the numbers and comparative growth rates. However, there is a much more fundamental issue before you even get to the numbers.

Inclusion in the core and non-core categories should be based on the extent to which copyright protection actually contributes to or detracts from the business performance. It’s a much harder question, but only then can you start to discuss the contribution copyright regulation makes to the economic performance of a country. For example, there would be significant service related revenues from elements within the core industries which do not rely on copyright. There are also business models which rely on fair use, or are even disadvantaged by copyright, but still within the core. Finally there are also businesses which qualify for copyright protection, but which do not benefit (as significantly as they should) due to the practical difficulties of enforcement. It’s difficult to justify the those elements being counted towards an overall “copyright performance” measurement. Finally, as a measurement, the Gross Domestic Product includes a number of factors which are not directly relevant to copyright including, for example, government spending. It’s therefore not clear exactly what the comparison of “copyright industry” revenue compared to GDP actually means in practical terms – variations in unrelated issues like heath care and defence make the comparison meaningless without a very detailed explanation for cause and effect (which may have been prepared, but wasn’t included).

It will be interesting to see how the report is framed as the global financial crisis has a larger than normal impact on GDP independent of material changes to copyright regulation, enforcement or infringement.

Post by Ben Lehman

(Photo credit: treadrinker)

The key message this month continued the theme from last month around the role of Chief Intellectual Property Officers.  We picked up on some brilliant comments from Marshall Phelps and Bill Elkington and reinforced the point that the focus should be on the role and not the title. 

As always, we had a lot of fun hosting the Blawg Review this month and Marie Louise did a sterling job with a carnival atmosphere for #222.

In our opinion, the biggest news in the IP world this month was a tie between the ongoing debate over data exclusivity for follow-on biologics in the USA, and also in pharmaceuticals, the release of the European Commission Report on competition in the European pharmaceutical market.

The best podcast moment was the brilliant discussion about intangible assets between Suzanne Harrison, Sharon Oriel, Ron Laurie, Jeremy Phillips and Duncan.

(Photo credit: kitty b wonderful)

Particularly worth a read

3 interesting things in this issue were:

(1) A great review of the increasingly important Customs Seizures practices in Europe by Christoph Cordes;

(2) 60 University spin-outs in 3 years, 94% still alive, lowest cost per spin-out in the US - Utah's model for University commercialisation; and

(3) Valuation of software and the importance of confidential information by Dwight Olson.

Most surprising was the concern expressed in one article over the magnitude of the impact in Canada of the Quanta patent exhaustion decision by US Supreme Court.

Find out more at: the Licensing Executives Society International website.

I can feel Spring approaching in Melbourne. There are buds on the Ash outside my window and the mornings are gloriously sunny, but frosty. Of course, Melbourne is well-known for its ability to turn on four seasons in a day so you may experience a few hours of Spring weather on any given day but there has been sufficient consistency in the weather over the past week to turn my thoughts towards Spring and all the fun that comes with it.

One of the treats that Spring brings in this part of the world is the Royal Melbourne Show (and plenty of festivals and shows across regional Victoria as well) but oh, the wait! What to do? What to do? While I wait for the buzz of local activity and excitement that comes with Spring, what could be better fun that partaking in the blawgosphere carnival, the Blawg Review? It’s perfect for my predicament. A fun celebration, globally shared in a space where it feels like it is always Spring - the legal blogosphere where there is no hint of Winter dormancy to be seen, new blawgs are continually sprouting and thriving and the atmosphere is ever vibrant and colourful. So without further ado, I bring you Blawg Review #222, with all the fun of a town show...

Let’s start by following Andrew Moshirnia’s ‘trip to the buffet of wrong’ a brilliant and very funny post brought to us by the Citizen Media Law Project Blog covering the broad choice of rather dodgy aspects involved in the dispute between Platinum Equity and San Diego Reader involving, amongst other things, Platinum’s attempt to copyright a cease-and-desist letter.

Mediator blah... blah... has a brilliantly brief and thought provoking post on the mediator’s role as ‘sponsor of communication and not constructor of outcomes’.

Fresno Criminal Defense has a fantastic post on a disturbing ‘trend away from the individualisation of guilt’ in the American justice system. Simple Justice has a couple of posts on ‘GateGate’, a recent situation in which a police officer investigating a possible home robbery went on to arrest a black Harvard professor in his own home for disorderly conduct. The first post explores the racial implications of the case and police perception of their own power. In a second post Scott Greenfield clears up some misconceptions about the charge circulating in the non-lawyer community. Above the Law’s Elie Mystal also posts on the case posing a radical and shaky hypothetical that criminal liability might attach to the woman who reported a possible robbery only to be shot down by David Lat – a highly entertaining read.

Legally Unbound posts on the debate in Nevada over judicial appointments vs judicial elections, suggesting a very sensible three prong solution for removing bias from the judicial system.

Legal Blog Watch posts on some recent discussion on the blogosphere of the issue of anonymous commenting on blogs and the decision by Defending People not to publish any anonymous comments. Legal Blog Watch encourages readers to comment (preferably not anonymously) sharing their thoughts on the matter.

Photo credit: mecookie’s

Competitions and prizes

In the competition for claiming a place in Managing Intellectual Property’s most influential people in IP, bloggers score a win! Spicy IP reports that ‘the IP blogger’ was noted in the Top 50 for informing opinion (Mr Kurian’s great achievement is also reported by Spicy IP). For those inspired to join the growing ranks of bloggers, take a look at Real Lawyers Have Blogs for a rundown of what they include in their blogger training program for lawyers. Also, an encouraging post from Greatest American Lawyer that discusses the very positive impact blogs can have, in terms of making you more visible and connecting you more closely to the issues you care most about.

If you’re wanting to see new law then the blawgosphere will not disappoint. This week The Employment News Law Spot brought to our attention a fresh amendment to America’s Affordable Health Choices Act 2009 that will extend COBRA coverage. Downtown Lawyer blog brings us news of an Eighth Circuit decision explaining that the same project and contractual relationship do not make cases "parallel" for abstention purposes.

Opinio Juris celebrates the 40^th anniversary of the Apollo moon landing with a look at the future of space law relevant to government space projects. E-legal asks will robo-ethicist become a new speciality for lawyers? If Legal Blog Watch’s proves to be correct in its suggestion that mandatory consumer arbitration is in its final days, then lawyer-turned-robo-ethicists might be just the ticket for those in this vanishing field.

So too, the blawgosphere exhibits plenty of fresh ideas and interesting discussion on the subject of legal practice. Law21 has a great post ‘Spend Wisely’ considering corporate legal spending on risk minimisation and how to match possible changes in future spending. Sam Glover at Lawyerist.com shares some valuable business guidance gleaned from Jeff Bezos, founder of Amazon. Chorey, Taylor & Feil’s John L Watkins explains what golfer Tom Watson can teach about business and practising law.

Do you consider yourself a ‘legal rebel’? According to the ABA Journal’s Legal Rebels project website: ‘Dozens of lawyers nationwide aren't waiting for change. Day by day, they're remaking their corners of the profession. These mavericks are finding new ways to practice law, represent their clients, adjudicate cases and train the next generation of lawyers. Most are leveraging the power of the Internet to help them work better, faster and different’. Law21 presents us with a fabulous post discussing the revolution from within the legal profession.

For a look at new and exciting inventions and innovation around the globe Anticipate This! recommends a visit to CNN’s ‘Edge of Discovery’.

Hoping to discover worthwhile online resources or grab some sound take home advice? Look no further.

Real Lawyers Have Blogs brings us Twitter 101 for law firms and other businesses. Let’sTalk Turkey introduces their readers to VisualCV complete with MAC/PC ad campaign knock-off clip comparing paper and visual CVs.

For IP enthusiasts, the Invent Blog informs of a new patent data and analytics website Boliven Patents.

Popehat gives some sage advice on crisis management in its post ‘Crisis Management: It’s Like Being Arrested’. J D Hacker advises on ‘things a professional should never do on Facebook’ and the ‘perils of multitasking’ in context of legal practice. Check out Adams Drafting for some advice on developing a house style for contract drafting.

Also, worth a quick stop is Family Lore and GeekLawyer’s Blog reviews generously praising Tim Kevan’s comical new novel ‘BabyBarista and The Art of War’. If a humorous look at the legal profession pleases you, then visit ‘Behind Belittling Associates’ at LawComix for a hearty laugh.

Carnival fun and games

For some of the twists and turns in litigation, case law and legislative reform there are a number of good blogs posts to visit. This week Drug and Device Law and PointofLaw.com posted excellent reporting and analysis of recent US Supreme Court cases Twombly and Iqbal likely impact on federal pleadings requirements.

In Melendez-Diaz the US Supreme Court held that information in laboratory technician reports may only be introduced against a criminal defendant if there is opportunity to cross-examine the technican responsible. Matt Kaiser at The Kaiser Blog explains his view that Melendez-Diaz is good policy.

Across the pond concern is mounting about plaintiff-friendly libel laws. Citizen Media Law Project explains why ‘UK libel law may be hazardous to your health’. Also on the subject of UK defamation law, in a landmark decision, the UK High Court rules Google not liable for defamation in search results, reports the California Defamation Law Blog.

In Canada, the debate on copyright law reform is going strong. This week Michael Geist launched SpeakOutOnCopyright.ca to help facilitate greater participation throughout the consultation process - a highly commendable initiative!

PrawfsBlawg draws on the recent IP Colloquium and continues discussion of the copyright battle between Associated Press and Shepard Fairey, now joined also by freelance photographer Mannie Garcia. In the post Prof Dave Fagundes shares his thoughts on the fourth fair use factor and why he remains to be convinced that it weighs in favour of the photo owners.

Judge Sotomayor’s confirmation hearings are still generating much discussion in the blawgosphere. At The Volokh Conspiracy James L Gibson sets out ‘the dangers of politicised campaigns for and against nominees’. At Unsilent Partners, Mike Semple Piggot and Colin Samuelson discuss the hearings and new UK Supreme Court. At The Faculty Lounge, Alfred Brophy ponders the likely scholarship on the Sotomayor hearings. At Marqette University Law School Faculty Blog, Edward Fallone assesses some of the metaphors used to describe the role of judge and adds his own suggestion to the mix.

For a quick trip through the House of Mirrors, where distortion and confusion abound check out a post at Popehat on Florida Clearwater Council’s decision to make playing catch or similar activities at the beach or parks illegal. On the upside Ken reports ‘badminton-related deaths have dropped dramatically’ - a most amusing read about a serious issue.

Michigan Long Term Disability Insurance Lawyer Blog reports that Michigan Supreme Court Justice Young ‘places such a "high value" on child-rearing that he would adopt a legal rule that awards no compensation for such services’. Ok, now this House of Mirrors is getting a little creepy.

Phew, back into the real world where fun is good and parenting has great value, economic and otherwise. Also, while on the subject of parents, The Trademark Blog provides a brief and amusing post covering a trade mark infringement matter in which the court doesn’t buy the ‘my Mum did it’ defence.

Photo credit: Paul Keleher

And to usher in the end of this Blawg Review #222 let’s look at some of the fireworks that knocked us back in seats, and dropped our jaws in sheer amazement this week. Firstly, the reporting on copyright holder trade group, BREIN’s Dutch copyright suit against The Pirate Bay site, operators and future owners and the operator’s subsequent filing of a Swedish defamation suit against BREIN’s Tim Kuik. Nate Andersen of Ars Technica comments that ‘the entire saga could only get stranger if Ewoks were somehow involved’. TorrentFreak also provides some excellent coverage.

Reporting on Amazon’s remote deletions of George Orwell’s ‘1984’ and ‘Animal Farm’ ebooks from Kindle readers also sent many imaginations racing and attracted lots of colourful commentary as the background facts slowly came to light. There are countless great posts on the topic. I recommend posts at 1709 Copyright Blog, Copyfight, The Volokh Conspiracy, Ars Technica and Excess Copyright for some the most enjoyable and informative coverage of the remarkable tale.

And on that note, it is time to close this celebration of all the fun, folly and serious food for thought that was brought to us by the blawgosphere this week. Good night from me. Go well, blog well!

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

Photo credit: **Maurice**