How Bout Them Apples?

The magazine Fast Company has compiled a fascinating history of design at Apple Inc..  As the originator, or sometimes perfecter, of many iconic designs in both software and hardware, Apple has become increasingly reliant on good design - not to mention design patent protection - to distinguish itself from copycat or sloppycat competitors.  If, as Goethe wrote, "Architecture is frozen music," Apple design, at its best, can reach the level of defrosted jazz.

Put Upon By Putin

President Barack Obama appears to have fallen victim to the diplomatic equivalent of an epaulet mate.  Hemmed in, on one side, by Secretary of State John Kerry's fanciful suggestion that Syria surrender its stockpile of chemical weapons to the international community, and, on the other side, by his erstwhile ally David Cameron's ill-fated decision to seek Parliamentary approval for military action to punish Syria for allegedly using chemical weapons against its own civilians,  Obama has been pushed to the edge of policy paralysis by Congress and public opinion.  Clichéed though it may be, Russian President Vladimir Putin appears to have proven himself a master at diplomatic chess by immediately accepting Kerry's offhand offer.  Efforts to build support for military strikes against Syria have struck out - at least for now.

Pip Pip, EPIP!

For almost a decade, EPIP ("European Policy for Intellectual Property") Association has been the leading scholarly organization for European intellectual property law.  As its website explains, "EPIP is an international, independent, interdisciplinary, non-profit association of researchers, that grew out of a network financed by the European Commission from 2003 to 2005."  On September 5th and 6th, 2013, the 8th Annual Conference of the EPIP Association was held in Paris, graciously hosted by Telecom ParisTech.  I was honored to deliver a keynote address on the unpatentability of inventions based on structures of, and processes carried out by, human beings.  The excellent full program is available here.  The conference was very well attended by an impressive and friendly array of scholars, attorneys, and policymakers from across Europe and beyond.  This year's EPIP conference may be over, but "We'll always have Paris."

Microsoft's Phoney Patents

After a brief and inelegant pas de deux, Microsoft Corporation has decided to dance solo by spending $US 7.17 billion for Nokia Corporation's mobile phone business and intellectual property.  In its latest effort to become a contender in mobile phones, Microsoft announced on September 3, 2013, that it would acquire both Nokia's "devices and services business" ($US 4.99 billion) and a "broad intellectual property license" ($US 2.17 billion).  Naturally, patents are at the heart of this massive bet.  Microsoft will acquire 8,500 design patents and a license to roughly 30,000 utility patents and patent applications.  Whatever its future as a purveyor of services and devices, Microsoft has now solidified its status as one of the premier patent hegemons.

Synthetic Metaphors

Early in its development, the field of synthetic biology adopted the language of engineering to describe what its practitioners do - or dream of eventually doing.  Phrases like "genetic circuit," "programming DNA," and "cellular machines," became commonplace in the field.  Although synthetic biologists hope to refashion biology into a more predictable and controllable than it currently is, much progress needs to be made, and the complexities that are biology often defy prediction and control.

On August 28, 2013, Nature published an article, entitled "Communication:  Mind the Metaphor," that elegantly analyzes the advantages and pitfalls of adoping engineering metaphors into a field as messy and complicated as biology.  The article further points out the sociological role that language has played in the field:

Despite the necessary fluidity surrounding their use, engineering metaphors have proved so robust as to create an identity among merging research communities. Indeed, the power of metaphors resides in their ability to serve as translational devices between different articulations of science — an essential function when cross-field collaboration results in the building of a new discipline, as has been the case for synthetic biology.

As synthetic biology continues to evolve, some engineering words, phrases, and concepts will inevitably prove their worth, while others will be revealed as inapt.  Vocabulary and ideas from other fields may fill these gaps.  However, what the adoption of engineering language has revealed, at least in the case of synthetic biology, is that breaks with the past can sometimes foster commonalities among formerly disparate groups of scientists.

Data About Patents

All major countries in the world have patent systems, and most of these must abide by treaties like the Paris Convention for the Protection of Industrial Property and the Patent Cooperation Treaty.  All members of the World Trade Organization ("WTO") are legally obligated to ensure that their patent systems meet the minimal requirements of the Agreement on Trade Related Aspects of Intellectual Property Rights ("TRIPS").  It would thus be reasonable to assume that patents do, indeed, spur technological innovation.  However, solid evidence for this assumption has proved elusive.  In several experimental studies my colleague, Bill Tomlinson, and I conducted, entitled "Patents and the Regress of Useful Arts," "Patent Expertise and the Regress of Useful Arts," and "Property Rules, Liability Rules, and Patents: One Experimental View of the Cathedral," our data failed to show that patents spur technological innovation.

Patents may indeed work well to encourage new inventions, but evidence to support this would be beneficial in helping to guide wise public policy.To this end, telecommunications firm Qualcomm Incorporated announced on August 22, 2013, that it donated $2,000,000 to the Searle Center on Law, Regulation, and Economic Growth at Northwestern University to fund research into the connections between patent protection and technological innovation. As the press release states,

The grant will make it possible for the Searle Center to create a series of related databases to collate information regarding standards, licensing, litigation and markets for patents. Scholars will be able to use these data to better understand how inventive activity occurs, how it is commercialized and what might be done to facilitate future innovation. The grant also funds a series of conferences and roundtables to examine and improve research in the field.

Research into how patent systems actually function is fundamentally important to social welfare.  If patents work well, then countries can confidently use them to increase the rate of technological development.  If they do not accomplish this goal - or even thwart it - then wise public policy may employ other approaches, such as open, user, and collaborative innovation.  Reliable data on patent systems is vital.  More research is needed.  Society will benefit, whatever the results may be.  

Patent Litigation Situation

The United States Government Accountability Office ("GAO") finally released its study of trends in, and drivers of, U.S. patent litigation on August 22, 2013.  Employing an empirical approach, this study, entitled "INTELLECTUAL PROPERTY - Assessing Factors That Affect Patent Infringement Litigation Could Help Improve Patent Quality," may serve as an antidote to some of the wilder claims that the patent system has become overwhelmed by patent trolls, vague software patents, and runaway federal courts.  The GAO study concludes as follows:

Public discussion surrounding patent infringement litigation often focuses on the increasing role of NPEs. However, our analysis indicates that regardless of the type of litigant, lawsuits involving software-related patents accounted for about 89 percent of the increase in defendants between 2007 and 2011, and most of the suits brought by PMEs involved software-related patents. This suggests that the focus on the identity of the litigant—rather than the type of patent—may be misplaced. PTO’s recent efforts to work with the software industry to more uniformly define software terminology and make it easier to identify relevant patents and patent owners may strengthen the U.S. patent system. Further, PTO has available internal data on the patent examination process that could be linked to litigation data, and a 2003 National Academies study reported that using these types of data together could provide useful insights into patent quality. Examining the types of patents and issues in dispute represents a potentially valuable opportunity to improve the quality of issued patents and the patent examination process and to further strengthen the U.S. patent system.

In recent years, the patent system has attracted unprecedented attention from governments hoping to determine how best to foster technological innovation.  While proprietary innovation may play an important role, it is equally imperative that governments devote substantial attention to fostering open, user, and collaborative innovation, all of which occur without, or sometimes despite, the patent system, and contribute myriad new goods and services.  Innovation is vitally important to improving human welfare.  Determining which policies, or mixture of policies, best achieve innovation should be a paramount public policy goal.

Rockford Warned About Electronic Surveillance

No television show has foretold the future better than The Rockford Files, which ran as episodes from 1974 to 1980, and then as made-for-TV movies from 1994 to 1999.  Iconoclastic from the start, the series depicted an ex-con private detective, James Rockford (played by James Garner), who lived in a trailer in a seaside Malibu parking lot.  Rockford was closest to his father, Rocky (a retired trucker), a small-time conman (the ironically-named Angel), and an attorney (Beth), but had an eclectic circle of friends who ranged from policemen to mafiosi, and everything in between.  Breaking existing conventions of good and evil, The Rockford Files often scandalously depicted the criminals, police, and (especially) governments and corporations as morally equivalent, as well as insidious threats to the rights of ordinary citizens.  David Chase, the genius responsible for another genre-buster, The Sopranos, wrote and produced for The Rockford Files, and, the former resounds with loud echoes of the latter.

The current scandal over the breathtaking scope of the National Security Agency's electronic surveillance efforts was presaged in the final two episodes of season 4 ("The House on Willis Avenue"), the villain of which was an extremely extralegal corporation building a huge (for 1978) computer surveillance system for gathering, analyzing, and selling sensitive personal data on every person.  The closing credits ended with the following warning (attributed to "Member, U.S. Privacy Protection Commission"):

Secret information centers, building dossiers on individuals exist today.  You have no legal right to know about them, prevent them, or sue for damages.  Our liberty may well be the price we pay for permitting this to continue unchecked.

History repeats.  Is anything learned?  One truth abides:  The Rockford Files was way ahead of its time.

Double Standards-Setting

On June 4, 2013, the United States International Trade Commission ("ITC") decided In the Matter of CERTAIN ELECTRONIC DEVICES, INCLUDING WIRELESS COMMUNICATION DEVICES, PORTABLE MUSIC AND DATA PROCESSING DEVICES, AND TABLET COMPUTERS (Inv. No. 337-TA-794).  In its decision, the ITC, a hybrid federal court-agency with authority to regulate trade via imports and sales, decided to issue an exclusion order banning imports, and a cease and desist order forbidding sales, of some older Apple Inc. mobile electronic devices on the grounds that they infringed claims of patents owned by Samsung Electronics Co..  Apple invoked as a defense Samsung's alleged violation of its obligations to make license standards-essential patents to Apple under fair reasonable and non-discriminatory ("FRAND") terms.

Growing interest by governments,  industry, and scholars in the roles of patents in standards setting, and particularly the possible dangers posed to healthy competition by abuses of patents essential to widely-adopted technical standards, has raised the consciousness of terms like FRAND and its less restrictive cousin reasonable and non-discriminatory ("RAND").  The National Academies have been intensively studying the issue, including its impacts on important emerging technologies like synthetic biology.  Thus, it was only somewhat surprising that President Barack Obama, via United States Trade Representative Irving A. Williamson, decided to "disapprove" (that is, veto) the decision of the ITC, thus allowing Apple to continue to import and sell goods the ITC found to infringe claims of Samsung's patents.

Although the disapproval letter issued by Williamson includes a mandatory reaffirmation of U.S. support for intellectual property rights and innovation, it also raises the specter of standards-essential patent abuse.  The tension between strong patent rights and competition will always be with us.  Now standards setting has become a significant new front in this conflict.

GDIP

Intangibles have become ever more tangible to economies.  In fact, invention, innovation, creativity, and research, and the patents, copyrights, trademarks, trade secrets, and know how whose official rationales are to promote and protect them are already major forces driving economic growth.  The United States Bureau of Economic Analysis ("BEA") formally recognized the importance of intangibles in its July 31, 2013, revision of how it calculates the gross domestic product ("GDP").  In a press release, the BEA describes several ways in which intangibles will henceforth be valued more highly:

* Expenditures by business, government, and nonprofit institutions serving households (NPISH) for research and development (R&D) are recognized as fixed investment. The new treatment improves BEA’s measures of fixed investment and allows users to better measure the effects of innovation and intangible assets on the economy.
* Similarly, expenditures by private enterprises for the creation of entertainment, literary, and artistic originals are recognized as fixed investment, further expanding BEA’s measures of intangible assets.
* In the NIPA fixed investment tables, a new category of investment, "intellectual property products," consists of research and development; entertainment, literary, and artistic originals; and software.

The BEA also notes that weighting intangibles more heavily in its new metric leads to upward revisions in both current and past GDP calculations.  To adapt Dire Straits (and Sting) ever so slightly, that's as close as governments can get these days to "Money for nothin' and growth for free."