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The Intellectual Property Blog of IPI
February 1, 2016

How's PTAB Doing?

Curious how PTAB's going?

PTAB is the Patent Trial and Appeal Board, which was created in the America Invents Act (AIA) patent reform bill in 2012. The idea was to find a quicker way to find and invalidate patents that should not have been issued.

Of course, PTAB has turned into many things, including a means for hedge fund short sellers to make a quick profit by shorting a stock and then challenging patents held by that company. I'm guessing creating a new way to manipulate the stock market for profit isn't quite what the patent reformers had in mind.

But apparently it's worse than that. Here's Gene Quinn's view from his IP Watchdog blog:

The Redline case, like so many others, shows just how much of a wild west inter partes review is at the Patent Office. PTAB judges do not implement the rules and laws uniformly, and joke is being made out of due process. Why? Because these proceedings need to be completed within 12 months, so the PTAB cuts corners and simply doesn’t believe they can offer the process that patent owners, and increasingly petitioners, deserve. This is making post grant proceedings seem more like a kangaroo court or some hang ’em high court right out of a Clint Eastwood western.

Lovely.

Posted by Tom Giovanetti | Comments

January 29, 2016

Grading the Trans-Pacific Partnership

Derek Scissors of AEI published a paper back in December containing his analysis of the Trans-Pacific Partnership (TPP) agreement, which at some point one assumes will be submitted to Congress by President Obama.

Scissors is a free-trader who recognizes the need for such agreements in the absence of an effective WTO trade liberalization process. Based on several of his written pieces, Scissors 1) thinks the TPP as negotiated is distinctly better than no TPP, 2) is disappointed that the U.S. didn’t work harder to get a better deal, 3) thinks we should still try to fix the TPP within the framework of the existing parties to the agreement and, if that doesn’t succeed 4) we should fix the TPP at the cost of dropping countries that refuse to go along with the proposed fixes.

Earlier in November of 2015 Scissors wrote:

If this cannot work, free traders should not abandon the TPP. The next step would be to shrink the number of participants in the first round. 

Scissors recognizes that the business community is pretty solidly behind the TPP as an improvement the status quo.

Here at IPI, we’ll be writing a lot more on the TPP as the debate begins in earnest. But for now I wanted to highlight the fact that Scissors’ disappointment with the TPP do not stem from the most popularly criticized and controversial sections of the agreement, the intellectual property and agriculture sections. His chief criticisms are with the sections having to do with state-owned enterprises (SOE) and with the excessive number of exceptions that were granted to countries to simply not conform to the agreement in particular areas. It would have been far better to allow those countries longer phase-out times for those domestic considerations rather than simply granting them a carve-out from trade liberalization.

The strength of Scissors’ paper is how handily he rebuts the most commonly voiced arguments against the TPP. In particularly, as you might guess, I’m interested in his comments on the intellectual property section, which he grades at a B+. Read More >>

Posted by Tom Giovanetti | Comments

November 3, 2015

Carrots, Sticks, and Straw Men

“An abundance of ideas” is the stated organizing principle of the Copia Institute, a new think tank “from Mike Masnick and the team behind Techdirt.” But their latest paper, “The Carrot or the Stick?: Innovation vs. Anti-Piracy Enforcement,” offers no new ideas. The paper purports to demonstrate that anti-piracy policies are ineffective and, alternatively, that introduction of legal online content distribution platforms correlates with a reduction in theft. As such, enforcement regimes should be abandoned in lieu of “innovation.”

Per Masnick:

What if the answer to Hollywood’s concerns about piracy actually come from Silicon Valley?  What if the best way to reduce piracy is to let innovation flow, and to provide better services that reasonably respond to consumers and their entertainment needs?

But as Masnick surely knows content creators already make their works available on an abundance of legal online distribution services. Indeed, there are over 400 licensed video services and 98 licensed music services worldwide, and digital books, magazines, newspapers, photos and other works are ubiquitous.

Instead, Masnick offers a straw man argument, as no one is arguing that enforcement is the only solution to online theft. Indeed, in the real world, rights holders are pursuing voluntary, market based solutions amongst good faith stakeholders to combat piracy. For instance, the five largest ISPs and the content community created the Copyright Alert System to educate users about infringing activity and help guide them to legal alternatives. And the advertising industry recently announced the formation of the Trustworthy Accountability Group, which will help advertisers ensure their valuable brands don’t appear on websites dedicated to theft, thereby helping to take the profit out of piracy while at the same time protecting their good names. Further, recognizing that rights holders should ask of themselves what they ask of others, the MPAA launched, a search tool that helps connect consumers with particular movies or shows of interest to them among so many options.

Posted by Tom Giovanetti | Comments

October 26, 2015

Shkreli's Stupid Pricing Move Vindicates Rather Than Indicts Pharmaceutical Markets

Posted by Tom Giovanetti | Comments

October 2, 2015

Let's Get Real about What's Fair in TPP Copyright Provisions

Last year I was invited by Bill Watson of the CATO Institute to make the case as to why it is critically necessary for U.S. negotiators to insist on strong IP provision in our trade agreements.  Intellectual property-intensive industries account for about two-thirds of U.S. exports – it would be malpractice for our negotiators NOT to work to prevent foreign theft of American innovation.

(I think I got the better of my fellow panelists at that event—you can watch it and judge for yourself.)

The TPP negotiators are in Atlanta this week trying hard to work through the last few, toughest issues, and Bill is back at it again, this time arguing that the United States should not only allow, but in fact demand broad exceptions to copyright in the laws of our TPP trading partners.  This again proves what I said last year – that the TPP debate is not really about trade, it’s about people who want weaker intellectual property rights.  (Bill was kind enough to reference this piece of mine in his, which is always nice.) Ok, so let’s have that debate.

Posted by Tom Giovanetti | Comments

October 1, 2015

The Real "Death Sentence": Limiting Data Exclusivity

Public Citizen is highlighting a cancer victim who is protesting at the Trans-Pacific Partnership (TPP) meeting in Atlanta.  

Public Citizen quotes the protester as saying: "When you have breast cancer today, you can’t wait 8 years or 7 years or 6 years for a treatment to become available or affordable. When you have cancer, even a one-year delay in affordable medicine can be a death sentence. That is why we call this proposed provision of the TPP a ‘death sentence clause.’  If it passes, thousands of women like me will die waiting.”  Read More >>

Posted by Merrill Matthews | Comments

September 29, 2015

A Big Step To Combating Ad-Supported Piracy

We previously blogged about the new Trustworthy Accountability Group (TAG), a voluntary agreement among advertising agencies and bureaus to address the problem of brand advertising on rogue websites that promote illegal and harmful content such as copyright piracy and malware. These rogue websites exist largely because they have been able to profit by attracting advertising dollars because of their high traffic volumes. The question has always been: Why would a company with a valuable brand want to associate their brand with such disreputable activities? The Trustworthy Accountability Group is set up to address this problem.

Last week, a major global advertising company, GroupM, announced that they will require all of their media partners (places where they place advertising) to receive certification from the Trustworthy Accountability Group. So this is a huge first step toward achieving the goals of the TAG. Read More >>

Posted by Tom Giovanetti | Comments

August 11, 2015

Stopping Criminals Isn't "Censorship"

Posted by Tom Giovanetti | Comments

July 31, 2015

The Australia-U.S. Free Trade Agreement Did NOT Blow-up Australia's Pharmaceutical Benefits Program

Right now, literally as I type this, Australian trade negotiators are reportedly resisting U.S. demands for increased protection of pharmaceutical and biotech innovation in the Trans-Pacific Partnership (TPP) agreement. They are no doubt motivated by the warnings of Australian academics and researchers that Australia’s Pharmaceutical Benefits Scheme (PBS), which the Australian government uses to control drug prices, will be weakened or undone altogether by extending the period of data protection for biologics, among other provisions.

The sky-is-falling warning from these academic critics of the pharmaceutical industry is that protecting the products of innovation will necessarily result in dramatic price increases, which Australia (and Australians) will no longer be able to afford.

Interestingly, Australian academics made this exact same argument in 2003, warning Australia about the treaty that was then being negotiated, the Australia-U.S. Free Trade Agreement (FTA).  

I have before me a copy of a paper published by The Australia Institute, entitled “A Backdoor to Higher Medicine Prices? Intellectual Property and the Australia-US Free Trade Agreement,” by Dr. Buddhima Lokuge, Dr. Thomas Alured Faunce, and Richard Denniss.

The paper predicted that the Australia-U.S. FTA would result in dramatic increases in the cost of prescription drugs in Australia.

“This paper examines five leading medicines near the end of their patent lives in Australia. Based on PBS expenditures for these drugs in 2003, we estimated the potential cost of likely changes to IP provisions under the FTA to the PBS and Australian taxpayers. The costs accrue over a four-year period from 2006 to 2009. . . . The ‘central case’ estimate is that the additional cost of these five drugs alone, as a result of IP provisions in the FTA, will be more than $1.12 billion with a lower estimate of $850 million and an upper estimate of $1.56 billion.”

But they were wrong then, and they’re likely wrong now. Read More >>

Posted by Tom Giovanetti | Comments

July 30, 2015

Australia Drug Prices Did NOT Increase After Australia-U.S. FTA

A piece in today’s Dominion Post (New Zealand) finds that warnings about higher drug prices as a result of free trade agreements are baseless, as least as far as facts are concerned:

“We can't assume medicine costs will increase if some patents or Intellectual Property protections are extended. Speculation about rising medicine prices under the TPPA mirror concerns Australians voiced over the U.S-Australia FTA. However, since signing the FTA in 2005, Australia's spend on pharmaceuticals has remained stable and the rate of expenditure has decreased. In 2006 Canada's pharmaceutical spend decreased after implementing an eight year data protection period. Similarly, after Japan increased data protection in 2007 to eight years, pharmaceutical spend decreased and health care spend increased by the year 2010.” Read More >>

Posted by Tom Giovanetti | Comments

July 15, 2015

TPP Critic Quigley Writes Article for Foreign Policy; Coordinates with Anti-IP Activists

On Monday, a writer named Fran Quigley had a piece published on the Foreign Affairs website that was highly critical of some of the provisions in drafts of the Trans-Pacific Partnership (TPP) agreement.

We’ll get around to dealing with the arguments in Quigley’s FP article in a separate blog post.

Quigley’s title of “Clinical Professor of Law in the Health and Human Rights Clinic” at Indiana University tells us much of what we need to know. If you merge health and human rights, you have already decided that access to every bit of the latest health care technology available is a human right, and if it’s a human right, it’s your right to have it for free, or for something very close to free.

That makes Quigley an activist more than an analyst of the provisions of the TPP. A look at his cv demonstrates that Fran is a social justice crusader, a proponent of the labor movement, and a neighborhood organizer type. Read More >>

Posted by Tom Giovanetti | Comments

June 11, 2015

Modernizing the Copyright Office

For the past two years, Chairman Goodlatte of the House Judiciary Committee has been conducting a comprehensive review of the copyright system, mostly through a series of topical hearings. Many of us who defend copyright against the barbarians saw this process as a threat--as an opportunity for copyright critics to vent before Congress and demand wholesale changes to copyright law. Fortunately, and rather surprisingly, that’s really not what happened. In the course of the hearings, very few aspects of copyright law were revealed as being out-of-step with today’s marketplace and current technology.

In fact, in a recent letter, the Internet Association itself said that existing U.S. copyright law “has adapted well to Internet era.”

One thing that DID come out of the hearings, however, is the need to modernize the Copyright Office itself. Even though the copyright industries now contribute more than $1 trillion to U.S. GDP and comprise 6.7% of the U.S. economy, the Copyright Office itself is still housed as a subset within the Library of Congress, and is widely recognized to be underfunded. Read More >>

Posted by Tom Giovanetti | Comments

March 11, 2015

An Exchange of Hill Letters on Copyright

Posted by Tom Giovanetti | Comments

March 8, 2015

The Trustworthy Accountability Group (TAG), Another Voluntary Agreement to Reduce Piracy

IPI has long been involved in explaining to policy makers the many harms of copyright piracy. These harms extend beyond the obvious losses to the property owners and affect many downstream businesses that depend on getting business and employment from the copyright industries.

And it’s not a stretch to say that ignoring blatant, widespread piracy contributes to the erosion of rule of law and property rights. It’s problematic to say the least when a culture decides that they no longer need to respect the ownership of property simply because it’s become easy to steal and hard to prosecute.

Further, it’s reasonable to think that, over time, toleration of widespread and blatant piracy will have at least a marginal impact on the incentive to create high-quality content—the kind of content that requires substantial up-front risk and investment to create. No, piracy probably doesn’t impact your incentive to film your dog running around chasing its tail and post that on the Internet, but it certainly does impact the willingness of a record company or film production company to put millions of dollars at risk.

These are some of the reasons why we’ve argued that the United States has many reasons to facilitate the defense of intellectual property rights and to discourage illegal piracy of intellectual property, both domestically and internationally.

But in a free society, rule of law is reinforced not only by government action, but also by the voluntary actions of responsible people in the marketplace. We’ve also argued that, eventually, the interests of the entire Internet economy will converge around the importance of protecting content. A healthy Internet ecosystem requires rule-of-law, property rights, and the other basic institutions of a free society. There is nothing about the Internet that logically puts it at odds with the institutions of civil society that have been recognized as necessary for the function of analog society.

So we celebrated the Copyright Alert System (CAS), a voluntary agreement between content owners and ISPs to notify broadband customers that piracy has been detected on their accounts. And it’s why we’re pleased about the new Trustworthy Accountability Group (TAG), a voluntary agreement between content owners and advertisers to avoid having their brands associated with illegal pirate websites. Read More >>

Posted by Tom Giovanetti | Comments

January 16, 2015

Against Armchair Advocacy

Recently, Eli Dourado at the Mercatus Center posted a blog in the wake of the Sony attack discussing stolen correspondence and privileged documents from the MPAA, which were leaked as collateral damage. I’m particularly disappointed to see Eli engaging in hyperbole that borders on dishonesty when he claims content owners are trying to “censor the Internet” and that MPAA is engaged in a “war against the Internet.” Preventing illegal activity on the Internet is not censorship, any more than preventing illegal activity on the streetcorner is censorship, and to use that language is sloppy, inaccurate, and even dishonest. This kind of hyperbole is often engaged in by activist groups, but is a surprise coming from some who claims to be a serious policy analyst at a serious policy organization. It’s also ridiculous for Eli to suggest that the whole episode surrounding Sony Pictures and the movie “The Interview” was a financial success for Sony. In truth, Sony has been devastated by the experience.

He suggests there are two lessons to be learned:  1) that the MPAA is trying to “censor the Internet” by reviving the Stop Online Piracy Act, the much maligned 2012 legislation aimed at combating online theft; and 2) that the extraordinary circumstances surrounding the release of “The Interview” are proof positive that movie studios should bypass theatrical exhibition altogether and release their films online as soon as the director yells, “cut!”

At the outset, it is troubling that when we have just witnessed an unprecedented attack by a rogue-state on an American company, people continue to focus on salacious details revealed in stolen material rather than the big picture. Here, Dourado chooses to exploit the attack to perpetuate stale narratives to support his disdain for copyright. Read More >>

Posted by Tom Giovanetti | Comments


Total Records: 119


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