Monday, June 25, 2012

The MegaBox

Megabox Movie TheaterLate last week we saw the announcement of yet another file sharing site that will allow content owners to monetize digital content. The point of difference in this case is that the founder has had almost all his assets frozen and is under house arrest while he defends copyright infringement, racketeering and money laundering charges. I covered this in an earlier blog post.

In a tweet last week, Megaupload founder Kim Dotcom announced that "The major Record Labels thought Megabox is dead. Artists rejoice. It is coming and it will unchain you". At least I think it was Kim Dotcom. There's a new twitter handle @KimDotcom with his picture on it.

Last year Dotcom posted in TorrentFreak that Megabox would be "a site that will soon allow artists to sell their creations direct to consumers and allowing artists to keep 90% of earnings".

In addition to allowing content owners to sell content, Megabox would use what is referred to as Megakey. The idea (I think) is that users will be exposed to advertising while downloading content from the site. Megabox gets paid by the advertisers for presenting ads to users. Megabox pays the content owners whose content is downloaded. By using the Megakey, artists sharing content on Megabox would earn income from users even if they download music for free.

It will be interesting to see how the payback for Megabox will compare with Megaupload. Movie files tend to be larger than music files. Large files take longer to download than short files. The opportunity to advertise to movie downloaders is therefore greater than the opportunity to advertise to music downloaders.

As I said in a radio interview this morning, the concept sounds good. However, there are risks for artists. Musicians looking at this service and other similar online services should ask what rights they are giving up, and for what purposes people can use their music. And be sure to keep backups of their work.

The audio segment is available here:

Photo courtesy of author John Swords under Creative Commons licence. 

Friday, June 22, 2012

BPAI round-up

Milford Sound
Milford Sound, New Zealand
This round-up of recent decisions of the US Board of Patent Appeals and Interferences (BPAI) focuses on recent cases involving issues of patentable subject matter.

Tied to a computer

In Ex Parte Clarke No 2010-005973 (BPAI May 16, 2012) the Appellant's invention was directed to an enterprise project management system and method having multiple structural modules for assigning and tracking work progress. Method claim 1 included steps such as retrieving project tasks from a database, displaying the project tasks using a user interface, providing a resource breakdown structure, providing a calendar breakdown structure, optimizing allocation of the resources and so on.

The Board reversed the Examiner's rejection that the method claims recite unpatentable subject matter. They said that:
'the use of a computer and its database is inextricably required throughout the retrieving, displaying, and identifying steps of the method'.
Software per se

In Ex Parte Hassink et al No. 2009-010923 (BPAI May 30, 2012) we saw the Board recognise a drafting error in the specification, construct a favourable interpretation and reject the claim anyway.

The claim in question was directed to:
A computer program product for detecting a fault in a multiprotocol label switching (MPLS) network, comprising: a computer readable storage medium having computer readable program code embodied therein, the computer readable program code comprising ...
The Examiner interpreted "computer program product" as reading on software, rejecting the claim as relating to software per se. The Board instead interpreted the claim as corresponding to a computer readable medium comprising computer readable medium code, despite a drafting error in the Appellant's specification that supported the Examiner's interpretation.

It wasn't all good for the Appellant though. The Board observed that the term "computer readable medium" was defined in the specification to include transitory propagating signals and even include paper on which a software program is printed. The claim was rejected as being directed to non-statutory subject matter.

Ex Parte Sahita et al No.2009-015265 (BPAI June 12, 2012) involved exposing a resource data record associated with diagnostic code to manage a manageable resource enabling the resource data record to be discovered. The claim under consideration was directed to "A medium storing program code comprising code to provide a device driver ...; and diagnostic code to access the managed resource data ..."

The Board agreed with the Examiner that the claimed invention was directed to software per se, merely a set of instructions capable of being executed by a computer. The computer program itself is not a statutory process in that it does not include the computer-readable medium needed to realise the functionality of the computer program.

The Board went on to comment that the "medium" probably included transitory signals which is something the Examiner may wish to look at in the event of further prosecution.

Abstract idea

In Ex Parte Chou No. 2010-003045 (BPAI May 13, 2012) we saw the Board raise a subject matter objection to claims relating to a method for entering blueprint data into a handheld device. The Board concluded that the Appellant's claims encompass non-statutory subject matter because a method that can be performed by human thought alone [or with pen and paper] is merely an abstract idea and is not patent-eligible (CyberSource v Retail Decisions Inc).

The Board looked to the underlying invention for patent-eligibility purposes. In the event of further prosecution of claims having the same or similar scope, the Examiner was urged to consider a rejection under 35 U.S.C. 101.

Ex Parte Rubenstein No. 2010-011524 (BPAI May 21, 2012) saw the Board consider a method claim involving a health insurance system that uses co-payments that vary inversely with marginal clinical utility. Method claim 1 included the steps of processing a set of clinical factors and applying variable co-payments to medical care alternatives through use of at least one computing device.

The Board found that the claim 'encompass[ed] the abstract idea of applying variable co-payment to medical care alternatives in an inverse relationship with corresponding marginal clinical utilities for a specific clinical condition identified by processing a set of clinical factors.' There was no recitation of a particular transformation and there was at best only nominal use of a machine that imposed no meaningful limits on the scope of the claim.

Reference to "exercise equipment" did not help the Appellant in Ex Parte Nerenberg No. 2010-010021 (BPAI May 29, 2012). The use of this exercise equipment did not impose meaningful limits on claim scope. Furthermore, the Board observed that the claim did not recite actually doing anything with the exercise equipment.

In Ex Parte Ahmed No. 2009-012011 (BPAI June 6, 2012) the Board considered a method for estimating a number of information symbols in a received data transmission. The Board noted that abstract principles are not eligible for patent protection, however an application of an abstract idea may well be deserving of patent protection.

It was true that the claim recited ideas such as "estimating a number of information symbols". However, when paired in conjunction with receiving the information symbols in a "data transmission", the application of such a pairing deserves patent protection (Ultramercial).

Transitory propagating signal

We are still seeing 'computer readable medium' claims brought before the Board. In Ex Parte Phillips et al No. 2009-014475 (BPAI May 30, 2012) the Board raised a new objection against a claim to "[a] computer readable medium having computer executable instructions".

Ex Parte Krishnaswamy et al No. 2010-004070 (BPAI June 11, 2012) involved a claim directed to:
A system for data object transformation, the system comprising:
a communications line;
a computer readable medium executable on a computing system, ...
The Board considered the Examiner was correct to construe the term "computer readable medium" as broad enough to read on wireless signals.

In Ex Parte Li No. 2010-001245 (BPAI June 10, 2012) the Board rejected a claim that included "[a] computer readable-medium having computer-readable instructions therein that, upon execution by a processor, cause the processor to assign routes for a plurality of users allocated to different classes".

The Appellants in Ex Parte Hatlestad et al No. 2011-001078 (BPAI June 3, 2012) attempted to overcome an objection to a computer readable medium by proposing an amendment to "non-transitory machine-readable medium". The Board declined this amendment, saying it was for the Examiner to consider what amendment(s) would be appropriate and effective to limit the claims to statutory subject matter.


In Ex Parte Zbiciak et al No. 2009-014324 (BPAI May 30, 2012) the Board considered a claim to "[a] method of converting image data in pixel form into embedded zero-tree wavelet encoded data .."

The Appellants argued that the claim satisfies the transformation prong of the machine-or-transformation test because it converts one thing into another thing and that it involves physical things such as a "bit plane data word".

The Board disagreed, observing that a "data word" is not physical. The mere manipulation or reorganisation of data does not satisfy the transformation prong. Therefore the argued converting of data fails to meet the transformation test. Although the machine-or-transformation test is not the only test, the Board felt that failure to satisfy this test established a prima facie case of patent ineligibility.

Photo courtesy of author Héctor de Pereda under Creative Commons licence.

Tuesday, June 19, 2012

The chickens fly the coop

When you work in the city and live in the country you are never quite sure what you are going to come home to. Sometimes it's quite different to what you expect. Friday night was a case of 'different'.

Back in January we bought some fertilised Araucana eggs, the ones that lay the pretty green-coloured eggs.  We hatched 10 chickens by putting a broody hen on top of them. We lost one along the way somewhere but still ended up with 9 cute pullets - 4 boys and 5 girls. We already worked out that having more than one adult rooster in the same flock is not a good idea. We needed to get rid of the roosters before they got big and nasty.

So we sold some of them on online auction site TradeMe. We sold a rooster to one family, another rooster to another family, and a double hen-rooster combo to another family. The thing about selling stuff on TradeMe is that you actually have to produce the goods. This might be fine if you are talking about a lounge suite or a kitchen appliance. They are pretty easy to catch. Hens are not.

Mrs PatentBuff had the advantage that these chickens grew up associating her with being fed. They would peck happily around her feet as she scattered grain each morning. That is, until she threw a blanket over a rooster.

Chickens are not known for being very smart. But even our flock worked out that something was wrong after two of their flock went missing. They started getting harder to catch. Trouble is, we still needed to catch the double hen-rooster combo.

Suddenly it was crunch time. The new owners were coming to pick up their three chickens the next morning. We had to get this over and done with on Friday night. It wasn't that nice out. It was dark, wet and cold.

We have some magnificent mature totara (Podocarpus totara) trees on our property. Which is great. Our prey were roosting in the top of one of them. Which is not so great. We have a 4m long pole we use for opening and closing the skylights in our house. We took it in turns to poke the hens to try and dislodge them from the trees. We weren't having much luck. Mrs PatentBuff climbed the tree (in unstable designer footwear) which meant she could get a little closer to them and approach from a different angle.

It worked. She managed to knock one of the roosters off first. Hens don't fly at night for some reason. We all know the party trick of blowing up a balloon and letting it go rather than tying it. It whooshes around the room at strange trajectories making funny noises before landing in a deflated heap on the ground. Imagine a balloon covered with feathers and you have a pretty accurate mental picture of a rooster falling out of a tree at night.

Well they might not be able to fly at night but the little blighters can still run. Once our rooster landed on the ground I had a quite a time chasing it around in the dark. The headlamp I was using showed me where I was going but helped my little friend more. After a few laps around the hen house I finally managed to grab him by the tail feathers then the feet. He really started fussing at that. Pretty soon we had him secured in a cardboard box.

Then it was time to catch the two hens. The first of them landed right in my arms as it was falling out of the tree. Straight in the box for that one. Then I was chasing the second one around just like the rooster. It ran right into a fence when it was out of the headlamp beam and bounced back looking a bit looking stunned. Straight in the box for that one too.

The contrast is quite startling. One minute I am having a drink with my work buddies celebrating a client-related success. Nek minnit I'm chasing roosters around in a dark muddy paddock. I would like to say it was an unusual Friday night. But I'm not so sure.

Thursday, June 14, 2012

Another look at traditional knowledge

Maori Statue
The Times of India reports that negotiators from India, Colombia, Peru and New Zealand will shortly meet in Bali to talk about traditional knowledge.

One of the items on the agenda is some kind of agreement on what exactly they mean by "traditional knowledge". Talks have been going on for a decade at international fora such as the World Trade Organisation (WTO) and the World Intellectual Property Organization (WIPO). I don't think anyone is expecting a resolution at this meeting.

Another item on the agenda is who gets to share the royalty or fee that arises from the use of traditional knowledge, genetic resources or traditional cultural expression. Apparently the Peruvians and the Colombians want the resources to flow to the local communities. The Indians on the other hand want to see sovereign governments get the funds. One commentator wants to see companies using genetic resources to state clearly that they have been legally accessed.

I'm not sure what our New Zealand officials are going to say. However, I'm fairly sure that New Zealand will not be criticised by other countries for its treatment of traditional knowledge. Here we have the Waitangi Tribunal, set up to make recommendations on claims brought by Maori relating to actions or omissions of the Crown that breach promises made in the Treaty of Waitangi.

Last year we saw a decision issue on the 262nd claim brought before the Waitangi Tribunal. The genesis of WAI 262 is concern at the ease with which native flora and fauna can be lost to overseas interests. This claim puts under the spotlight the Maori rights of tino rangatiratanga (authority) and kaitiakitanga (guardianship) over indigenous flora and fauna.The report is unique in that it looks to build a partnership between Māori and the Crown beyond the grievance process. The report looks to establish a culture in New Zealand where both cultures are promoted, rather than one being promoted above the other.

The report acknowledges that current intellectual property laws and policies in New Zealand were not designed to deal with indigenous relationships with flora and fauna.  Furthermore, current laws and policies allow third parties to use traditional knowledge without acknowledgement and consent.

Furthermore, the report states that Maori tribes do not have ownership rights in “taonga species” or in traditional knowledge relating to those species.

It makes some recommendations to the Government as follows:
  • establish a Maori advisory committee to advise the Commissioner of Patents about whether inventions are derived from Maori traditional knowledge or use taonga species;
  • establish a register of traditional knowledge;
  • introduce a legal requirement for patent applicants to disclose the source and the country of origin of any genetic or biological material contributing to the invention; and
  • grant the commissioner the power to refuse patents that unduly interfere with the relationships between kaitiaki and taonga.
Photo courtesy of author Traumador under Creative Commons licence.

Thursday, June 7, 2012

Lady Gaga and the trade mark gaffe

Lady GaGa
Lady Gaga has arrived in New Zealand ready for the New Zealand leg of the Born This Way Ball World tour. The singer will perform three shows at Auckland's Vector Arena on Thursday June 7, Friday June 8 and Sunday June 10.

She had to cancel her Indonesian concert. Earlier last month Jakarta police reportedly refused approval for the show after the Islamic hardliners threatened violence if Lady Gaga performed, calling her a "devil's messenger" who wears only a "bra and panties".

Her shows in New Zealand are unlikely to meet the same resistance. We're a pretty liberal bunch here. In fact I struggle to think of anything she could do to offend us. She would need to either insult the Queen or confuse us with Australia. That would be about it.

It's the controversy she caused in Thailand that is vaguely IP related. According to my friends at IP Komodo she upset Thais by tweeting about how she planned to buy a fake ROLEX watch while in Bangkok. A media frenzy followed, with Thais and foreigners arguing on both sides.

Thailand's Commerce Ministry said she is undermining its efforts to stamp out piracy. One official allegedly said that "Lady Gaga is a representative of the US and the US puts pressure on smaller countries to promote the protection of intellectual property". What is even more extraordinary is that the Thai Intellectual Property Department announced it was writing to the US Embassy in Bangkok to complain that an 'ambassador' of US culture would tweet such a thing.

Pachima Thanasanti, director-general of the department, spoke to the media about the tweet and her protest. Ms Pachima made the points that Lady Gaga is an international celebrity who greatly depends on IP law to make her living. The singer, she said, should have shown a little more thought before she tweeted that she wanted to buy a fake Rolex in Bangkok.

One commentator observed that "that is Ms Pachima's personal opinion ... what was missing from her extended remarks to the news media was any explanation of why her department submitted a letter of protest to the US embassy, and just what they expect US diplomats to do about her letter...".

Could the Thai Intellectual Property Department perhaps be reminded that the ambassador of the United States is the one they are writing to, rather than the singer they are complaining about?

Photo courtesy of author ama_lia under Creative Commons licence.

Tuesday, June 5, 2012

Gypsy day

The Drovers "Gypsy Day"
Another significant event in the New Zealand farming calendar is almost over. We call it Gypsy Day but the reality is that it stretches out over two to three weeks. The beginning of June marks the start of the new dairy season. We see farms changing hands. We see sharemilkers taking up new contracts. And we see herds moved to winter pastures.

A sharemilker is a person who lives on a dairy farm milking the owner's herd for an agreed share of the profits. Sharemilkers often build up their own herds at the same time. So when a new contract comes along, it's time to pack up the household possessions, the kids and the cows and move to the next place.

It's not just the sharemilkers moving their cows. Around this time most dairy cows are dried off ready for calving. They are moved off nutrient rich milk platforms to leaner winter pastures. The vacated fertile soils are then prepared for spring regrowth in another 3-4 months.

The reason why Gypsy Day is a significant event is that there are so many cows in New Zealand. As at the end of 2011 there were an estimated 4.82 million cows in the national milking herd. Compare this with the national (human) population estimate of 4.43 million as at 31 March 2012. You can see why it's such a big event.

Stock are either transported by truck or walked to their new homes. Most herds today are reported to be four or five times the size they were 20 years ago. The number of cars on the road has also risen dramatically. Here in the Wairarapa I've gotten used to looking out for handmade signs on the road saying "stock", especially around this time of year.

Photo courtesy of author possumgirl2 under Creative Commons licence.
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