I’ve noted before how the US strongarms other countries to “strengthen” IP law, primarily at the behest of American music, movie, and pharmaceutical interests. See, e.g.:

• China and Intellectual Property
• The Economist on Patents and Innovation in China
• Intellectual Property Imperialism
• Free-trade pacts export U.S. copyright controls
• Wikileaks cables reveal that the US wrote Spain’s proposed copyright laws

Chinese Companies Again Using Patents To Punish Foreign Competitors: Apple Sued Over Siri In Shanghai

from the had-to-expect-this dept

For many years, US companies and government officials complained publicly and privately that China just didn’t “respect” patents. They would point to how various Chinese companies were famous for making knockoffs of various products as evidence of this, and they’d put strong diplomatic pressure on China to both “respect” foreign patents more and beef up its own patent system. Of course, for years, we’ve been warning about just how stupid this is. China recognizes that patents are really a protectionist tool, and is using them as such. It has certainly increasedits patenting effort… but nearly every single major patent lawsuit in China has been aboutpunishing foreign companies and blocking competition to domestic Chinese companies.

So it should come as little surprise to find out that a company in Shanghai, Zhi Zhen Internet Technology, is now suing Apple, claiming that voice-controlled virtual assistant Siri violates its patents. No one seems to know specifically what’s in the patent, but I do wonder if it matters. Like so many Chinese patent lawsuits this one just seems likely to end up with a foreign competitor being kept out of the market in favor of the domestic version.

And yet… American companies and politicians will still continue to insist that China needs to “strengthen” its patent system, even as Chinese companies and politicians must be laughing at just how self-defeating the Americans are. We’re literally urging them to set up a system that helps Chinese companies block American companies from their market.

Adam Kokesh, as noted in the post excerpted below, delivers a great short talk on IP. Related:

• Kinsella on Adam vs the Man: Copyright and Neo-Mercantilism
• On Adam vs the Man: Copyright and Neo-Mercantilism
• Adam the Man vs. IP

Adam Kokesh beautifully discerns and dismantles the numerous flaws surrounding intellectual property, as interpreted and enforced by the government, and the very negative role intellectual property has in limiting market competition and societal advancement. As Adam explains, intellectual property indeed does not help the “little guy,” it actually puts precisely the “little guy” at a severe disadvantage to corporate giants and those with the lawyers and resources to use arbitrary government intellectual property and patent laws (backed by government force, as with all laws) as a dangerous tool to reduce and/or prevent competition (and innovation).

Read more>>

The Techdirt post below by Glyn Moody (h/t Tim Swanson) notes that James Watson is strongly opposed to gene patents. It’s outrageous and contrary to the nature of science as an open learning process. Watson will also be featured in the upcoming documentary by David Koepsell, “Who Owns You?,” for which I was also interviewed (see Fund raising for feature documentary – Who Owns You?; Who Owns You? – A Documentary – Trailer; Who Owns You? — Gene Patent Documentary). You can see a glimpse of the Watson remarks at around 29 seconds in the trailer for the documentary, below. For more discussion of this issue, see my post Gene Patent Absurdity.

Who Owns You? – A Documentary – Trailer from Taylor Roesch on Vimeo.

James Watson, Co-Discoverer Of DNA’s Structure, Says ‘Patenting Human Genes Was Lunacy’

from the and-he-should-know dept

Techdirt has been covering the important Myriad Genetics case for a while. Although the CAFC decided that isolated genes could be patented, the Supreme Court has asked the appeals court to review the case in light of the former’s rejection of medical diagnostic patents.

The importance of this case is highlighted by the amicus curiae brief filed by James Watson, co-discoverer with Francis Crick of the structure of DNA, for which they received the Nobel Prize in Physiology or Medicine in 1962 (along with Maurice Wilkins for related work.) Watson makes his views plain from the start:

what the Court misses, I fear, is the fundamentally unique nature of the human gene. Simply put, no other molecule can store the information necessary to create and propagate life the way DNA does. It is a chemical entity, but DNA’s importance flows from its ability to encode and transmit the instructions for creating humans. Life’s instructions ought not be controlled by legal monopolies created at the whim of Congress or the courts.

Watson recalls discussions on the topic during the $3 billion Human Genome Project to sequence human DNA as completely as possible:

Even at the early stages of the project, we were concerned about the issue of patenting human genes. Most, although not all, eminent scientists recognized that human genes should not be monopolized by patents. I believed at the time — and continue to believe — that the issue of patenting human genes went to the very crux of whether the information encoded by human DNA should be freely available to the scientific community. Some twenty years ago, I explained that patenting human genes was lunacy, and I was not a lone voice.

He also points out some concrete problems with gene patents in terms of their impact on assays (tests) that involve multiple genes:

If each of the human genes used in a new multi-gene assay are subject to patents, I fear that useful tests requiring multiple human genes will be unnecessarily delayed, become prohibitively expensive, or, worse yet, never be made available to patients at all. For a new assay using hundreds of human genes, the sea of patents and patent applications would create hundreds, if not thousands, of individual obstacles to developing and commercializing the assay. The best way, in my view, to resolve this problem is to eliminate the unnecessary patenting of human genes.

As this makes clear, if gene patents are permitted, patent thickets are likely to develop, which will delay new tests, and make them more expensive.

Aside from his position as one of the people that discovered the structure of DNA in the first place, Watson has another reason why his views on patenting genes carry some weight. As he relates in a footnote to his submission to the court:

Amusingly, after I gave my first presentation of our DNA structure in June 1953, Leó Szilárd, the Hungarian physicist and inventor of the nuclear chain reaction, asked whether I would patent the structure. That, of course, was out of the question.

Like Tim Berners-Lee with the World Wide Web, Watson declined to patent one of the most important discoveries of all time because he believed it was the right thing to do. Let’s hope the appeals court agrees with him when it hands down its decision on gene patents.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

It’s typical of artists to whine about sequels or modifications to their works, claiming that this “ruins” or harms the original work—even though the original work still exists in pristine form. Ridiculous. Here MGM is using copyright to censor an artistic work.

MGM sues over Raging Bull sequel

Studio calls follow-up film a “low-budget B-movie”

BY CATHLEEN FLAHARDY

July 6, 2012

In Patent Trolls Cost The Economy Half A Trillion Dollars since 1990 I noted a study by James Bessen, Michael Meurer, and Jennifer Ford, The Private and Social Costs of Patent Trolls, that showed that companies sued by patent trolls (non-practicing entities, or NPEs) have lost $500 billion from 1990 to 2010, with increasing annual costs of late, on the order of $80 billion per year over the last four years. Or as described by Bessen and Meurer in a new study, this paper was an estimate of “the total costs of NPE litigation for publicly listed firms using stock market event studies.”

The new “study complements our earlier study by obtaining estimates of the direct cost portion of total costs using data from a survey of defendants. Direct costs include the cost of outside legal services, licenses fees, and other direct costs incurred in response to NPE litigation risk.”

The new study, The Direct Costs from NPE Disputes, “estimate[s] that firms accrued $29 billion of direct costs in 2011.”

As Mike Masnick observes:

This does not include indirect costs, like the distractions of dealing with trolls or companies shutting down, products delayed or destroyed, etc. This is just about the direct costs, covering things like fighting in court and also settlement fights with the trolls. The study also found that small and medium businesses were the most impacted by this, often having to pay out to patent trolls (and to lawyers to deal with patent trolls).

I.e., the $29 billion cost imposed by patent trolls is conservatives—it underestimates the cost of patent trolls. And patent trolls are just a fraction of the costs imposed by the patent system as a whole, which I’ve estimated are at least $100 billion per year in the US alone, and that’s still a conservative estimate; I would not be surprised if it’s $300 billion, $500 billion, or even more (see Costs of the Patent System Revisited).

See also the summary of the study’s findings at the Coalition for Patent Fairness.

A great quote by Neal Stephenson, in Innovation Starvation (as quoted by David Graeber Of Flying Cars and the Declining Rate of Profit):

Most people who work in corporations or academia have witnessed something like the following: A number of engineers are sitting together in a room, bouncing ideas off each other. Out of the discussion emerges a new concept that seems promising. Then some laptop-wielding person in the corner, having performed a quick Google search, announces that this “new” idea is, in fact, an old one—or at least vaguely similar—and has already been tried. Either it failed, or it succeeded. If it failed, then no manager who wants to keep his or her job will approve spending money trying to revive it. If it succeeded, then it’s patented and entry to the market is presumed to be unattainable, since the first people who thought of it will have “first-mover advantage” and will have created “barriers to entry.” The number of seemingly promising ideas that have been crushed in this way must number in the millions.

(h/t Thomas Knapp)

Posted with Blogsy

From Wall Street Daily, a report about how Rovio, the maker of Angry Birds, is responding to copycats in China. (China’s Angry Birds Copycats Prime the Pump for Rovio.) “Unlicensed branding abounds on the internet and in shops across China, and at center of it all is an Angry Birds-themed amusement park in Changsha.” Instead of suing them, “Rovio is taking the gross misappropriation of its brand as a sign of untapped opportunity.” Rovio simply sees the copying as “a great indicator of the love for Angry Birds that we see here in China.” So their strategy is to “take the copycats’ successful ideas and replicate them, sometimes even recruiting the perpetrators themselves. For instance, an official Angry Birds ‘activity park’ is soon to open in Shanghai, while at the same time legitimately branded stores will be giving the illicit ones a run for their money.”

Published Tue, Jun 26th, 2012   Wall Street Daily Research

(h/t Desmond Shaw)

C4SS post by Thomas Knapp:

Flea Collar: Your Tax Dollars at Work

It’s not unusual to hear helicopters over and around my house (I live near, and on the approach path to, St. Louis’s main airport), so I didn’t notice the US Department Homeland Security’s major terrorist roundup only a few blocks away until I saw it on the news late last week.Oh, wait, did I say “terrorist?” Sorry. Make that “entrepreneur.”

Frison Flea Market has long been well known as the local go-to spot for inexpensive shoes, handbags, DVDs and so forth. It’s open — or was, anyway — on weekends. For a small fee, customers gain entrance to a huge grotto of booths with vendors hawking everything from refurbished computers to old comic books … to apparently new products at incredibly low prices.

How can those prices be so low? Well, the vendors somehow forgot to pay their rent. Not the flea market booth rent, but the rent to Nike, Gucci, Disney and other politically connected companies on whose behalf Congress has created a fiction called “intellectual property” which they can charge rent on, with the US Department of Homeland Security acting as collector (or evictor) as needed.

This arrangement is so transparently silly that it has to be covered up with additional fictions.

For example, the fiction that if you have something Universal Studios doesn’t want you to have, it is “stolen,” even if their copies of it haven’t gone missing.

And the fiction that “intellectual property theft” is a primary vector for the finance of “international terrorism” (if you want to see a real vector of that type, check out IRS Form 1040 — killer drones aren’t free, you know).

And so it came to pass that last Thursday morning, a convoy of government vehicles (with air support — or maybe that was just a conveniently alerted “news” chopper) pulled up to Frison Flea Market, disgorging a phalanx of black-clad, armed agents, who then proceeded to steal … er, “seize” … everything in sight.

Because after all, if your sister can just wander down to Frison Flea Market and buy a purse for $20 without paying an additional $380 in rent on the word “Coach,” the terrorists have won, right?

To break down the absurdity of all this, a real-life example:

The weekend before the raid, my wife and son shelled out several tens of dollars to catch Prometheus on the big screen. The following day, they visited Frison Flea Market, and noticed a bootleg DVD of the movie already for sale in the $5 range. Pretty quick, huh? I have no idea whether it was burned from a print of the movie, or just captured on hand-held camera in a theater. But anyway, there it was.

Standard “intellectual property” justifications for making this bootlegging illegal go as follows: If anyone can buy a cheap bootleg DVD, they won’t see the movie in theaters, or pay full price for the “legitimate” DVD release. The bootleggers are obviously STEALING the movie studio’s profits.

But does anyone honestly believe that people who were hot and bothered to shell out $10 a ticket and pay for expensive popcorn to get the big-screen experience would have settled for watching it on DVD — possibly in inferior form — at home? So much so that they would schlep down to the flea market for the privilege? Or that a real fan would grab the $5 bootleg instead of the superfrap extended edition in the molded tin case, with 58-page color liner notes?

Chances are that bootleg cost the filmmakers, studio, distributor and theater not one thin dime in “lost revenues.” In fact, if the movie is any good and the bootleg is of inferior quality, its mere existence probably boosts sales of the “real” DVD — and ticket sales to the sequel — by introducing people to the movie who wouldn’t have considered paying $19.99 for something they hadn’t had a look at first.

Let’s put this thing on the slippery slope and see how far down it rolls. When you see a movie, you remember it. Or, to put it a different way, a copy of it exists in your brain. But hey — it’s copyrighted. Stop, thief! And if you and your kids go home, start horsing around, and re-enact a scene from the film, Katie bar the door (especially you didn’t rent that swoosh on your tennis shoes) … you’re reproducing it! Bootleggers! Queue SWAT.

If my assessment of “intellectual property” seems harsh, well, I’ve tried to keep an open mind over the years, asking those who favor it to offer any argument for it that doesn’t boil down to “because we waaaant it that way … and we and our government collection agents have guns.”

So far, no takers. But I’ll keep listening.

Interesting video showing how the Rolling Stones incorporated a Grieg melody, from his “In The Hall of the Mountain King,” into their classic song “The Last Time”. Then the Stones’ manager has used copyright to extort payments from other groups, such as The Verve, using the same Grieg theme, as noted on Wikipedia:

In 1997, former Rolling Stones business manager Allen Klein, whose company ABKCO Records owns the rights to all Rolling Stones material from the 1960s, sued English rock band The Verve for using a sample of The Andrew Oldham Orchestra recording of “The Last Time” in their hit song “Bitter Sweet Symphony“. The Verve had obtained a licence to use the sample, but Klein successfully argued that the band used more than the licence covered. The Verve were required to relinquish their royalties to ABKCO and the songwriting credit was changed to Jagger/Richards. This led to Andrew Loog Oldham, who owns the copyright on the orchestral rendition that was sampled, also suing The Verve.

From CNBC:

Anthony Davis Trademarks His Brow

Getty Images Anthony Davis

Anthony Davis, who will likely be taken as the No. 1 pick in this Thursday’s NBA Draft by the New Orleans Hornets, is getting down to business — literally.

Davis, known for his connected eyebrows, trademarked the phrases “Fear The Brow” and “Raise The Brow” earlier this month.

“I don’t want anyone to try to grow a unibrow because of me and then try to make money off of it,” Davis told CNBC. “Me and my family decided to trademark it because it’s very unique.”

Read more>>

h/t Michael Barnett

From Slate:

More Than One Way To Butcher a Cow

What a slab of steak can tell us about food patent law.

By Adam Conner-Simons|Posted Thursday, June 21, 2012, at 7:45 AM ET

 

Is a cut of meat really eligible for a food patent?Photo by Paul Cowan/iStockphoto.

Read more from Slate’s special issue on the future of food.

A chef, a meat scientist, and an Oklahoma State food researcher walk into a beef summit in Chicago. It sounds like the setup to the world’s nerdiest gastronomy joke, but what actually happened one Tuesday this spring was that the trio unveiled their Vegas Strip Steak™, taken from an undisclosed part of the cow that has supposedly only ever been used for burgers, and proclaimed the cut of beef so earth-shatteringly original that they will be filing a patent for their knife strokes.

The news struck a nerve in the blogosphere, with responses ranging from ridicule to, in the case of Slate’s own Matthew Yglesias, bemusement. But the mocking responses don’t totally add up. People readily accept that industries like manufacturing or pharmaceuticals deserve legal protections for their inventions—so why do we get so uneasy when our taste buds are involved?

Patent law’s roots extend back to medieval times in England, and at its essence, it’s barely changed at all. The concept is to spur innovation by giving inventors the exclusive right to profit from their creations for a fixed amount of time (usually 20 years). Though the first patent on U.S. soil may have been for a method of making salt, Americans still tend to take issue with intellectual property being applied to food. Eating is such a basic, visceral human need that we switch into outrage mode when we hear about someone “owning” some aspect of our consumption. Food is something we share and value as social beings—how can a company possibly declare a monopoly on processed cheese or the act of putting a cucumber between two pieces of bread?

Claims like these are made every day. Last year the United States Patent and Trademark Office approved nearly 1,200 patents associated with Food or Edible Material—a drop in the bucket compared to the 247,000 total grants, but hardly small fry (though fries, incidentally, have been patented, too). Most are filed by large industrial producers and restaurant chains though there are also a handful of creative chefs who have patented everything from flavored forks to inkjet-printer sushi.

Given the restaurant industry’s historically open-source atmosphere, many of its members are wary of intellectual property, even if they stand to potentially make money from their innovations. (“We’re all standing on the shoulders of chefs who came before,” says Wylie Dufresne of New York’s wd~50.) Part of their reticence is practical: Patents can be costly and time-intensive to acquire, and your average sub-shop owner can’t realistically enforce a patent short of jet-setting around the world to spy on competitors.

The recent influx of culinary copyright and plagiarism cases—cookbook authors bickering about recipes, New York chefs suing each other over lobster rolls—reflects rising financial stakes in the industry. Still, while copyright law draws a clear line in the sand on food writing (cookbooks are protected, but the individual recipes within them are not), patent law is more amorphous, relying on broad benchmarks like the “nonobviousness,” novelty, and utility of the proposed invention. The only way to figure out which inventions can be patented and which ones can’t is through trial and error. McDonald’s’ “toasting of a bread component?” No, thanks. “Edible cardboard?” Welcome to the club.

Laissez Faire Books released today a new edition of my monograph Against Intellectual Property, originally published as an article in 2001 and then issued as a monograph by the Mises Institute in 2008. The new edition contains an Editorial Preface by Jeff Tucker and a new Introduction by me (both appended below). You can buy it here, but it is also available as a free epub or mobi (kindle format) download for members of the Laissez Faire Club, as discussed in Tucker’s Laissez Faire Today column introducing the new publication (Jeff’s column is also appended below) [update: files available here: epub; mobi]. The book is being discussed in a forum on the Laissez Faire Club (which I mentioned previously), at Let’s talk IP and Kinsella; if you’re not a member, join!¹

Jeff’s column (which is far too kind), his Editorial Preface, and my Introduction are appended below.

Scholarship that Changes Everything

Jeffrey Tucker · June 21, 2012

Great scholarship can do the same.

In the 20th century, there was Ludwig von Mises’s “Economic Calculation in the Socialist Commonwealth.” This 1920 essay astonished the whole of Europe with the claim that socialism was impossible — not just inefficient but completely and fundamentally unworkable. No one ever refuted him but this essay was the subject of debate for decades.

In our time, there is an essay of similarly epic importance. It is “Against Intellectual Property” by Stephan Kinsella. It first appeared in 2000 in a low-circulation journal. But those who read it and seriously considered it never quite saw the world the same way again.

This week, this book-length essay is being released into the Laissez Faire Club, with a new introduction by the author and an editorial preface, along with additional commentary.

I was among those who came to be fundamentally changed by this piece. [continue reading…]

1.  Update: AIP is now available online in these formats: epub; mobi; pdf. For the Mises Institute edition (2008): print,PDF, epub; Scribd; HTML; audio book version; large print version. [↩]