Sunday, April 07, 2013
What Does a First-To-File System Mean and What Will This Change to the Patent Process Mean for Inventors and Companies?
The America Invents Act (AIA) is the latest reform in U.S. patent law signed into effect on September 16, 2011. With a set of rolling changes, on of the main modifications takes place on March 16, 2013, which will transition the patent system from a “first-to-invent” system to a “first-to-file” system. This will bring serious change for inventors and companies in their strategies for filing patents.
The United States patent system has operated under a first-to-invent system for the last 200 years. Under this system a patent is granted to the inventor who first effectively invented the patent, regardless if they were the first to file for a patent application on the invention. For example if Inventor A invents a patentable invention but does not yet file an application with the United States Patent and Trademark Office (USPTO), but then Inventor B invents the same patent and does file an application with the USPTO claiming the invention, A would be entitled to the patent if A later filed an application. Even thought A filed after B, A would be granted the patent if he showed documentation of having an earlier invention date and showing he actually or constructively worked to “reduce the invention to practice.” This system is time consuming and difficult as attempting to deduce a date on which a person actually invented something can prove quite difficult.
March 16, 2013 brings about a first-to-file system, which de-emphasizes the actual invention date while focusing on who filed first. This change will further synchronize U.S. patent law with most of the rest of the world who also implement a first-to-file patent law system. The main question this change brings about is not who first conceived an invention (as in under a first-to-invent system), but rather who was the first to file a patent application with the USPTO. Some critics of the system change argue that this first-to-file system will boost patent troll activity, which will a person to be able to file patent applications on inventions that have been released but not yet filed on by smaller companies or underfunded startups. Some argue this will also give larger companies an advantage over smaller companies who do not have equal funds or resources to file patent applications at the same rate large companies do. However something to understand with this change is that while a first-to-file system will go into effect, it is not a true first-to-file system because the one-year grace period on public disclosure will stay in effect. An inventor can publically disclose his invention, through for example a blog post, and is given a one-year grace period from that time of disclosure to file for a patent application. If an inventor publically discloses his invention but does not file with the USPTO right away, he still has one year from that disclosure and will be granted a patent over any other inventor who disclosed later but may have filed earlier. This essentially means that the USPTO will now look to who first filed a patent application or who first publically disclosed the invention, both easier to deduce than which inventor first conceived the invention.
Under this new system well-timed disclosures of inventions by smaller companies will be able to block better funded companies from receiving patents. Disclosure will become of utmost importance as delay of disclosure can allow a competitor to file a patent application on the same technology that they invented later, but filed first. The competitor in that situation would receive the patent under this new system. Companies should begin to create processes that will quickly and effectively identify inventions, as well as whether it is financially beneficial to file a patent application or to publically disclose first.
Friday, March 29, 2013
Podcasters Hope to Raise SHIELD Against Patent Trolls
Categories: Business, Computers, Internet, Legislation, Licensing, Patent
Ahead of the standard introduction to his February 28, 2013 episode of his WTF Podcast, standup comic Marc Maron decided to shine a light on patent trolls, or “non-practicing entities” ("NPEs") as they are otherwise called. These organizations have been characterized as shell companies that procure broad patent portfolios, do not produce content, and sue inventors for patent infringement if the invention allegedly incorporates a patent held in the portfolio. Winning in court is not even the endgame for the troll here, because the defendant may be someone who can ill afford to continue in drawn-out litigation, and therefore the inventor may opt to settle.
Protracted patent litigation is well-trodden ground for the likes of Apple and Samsung. Apple has been criticized for wielding broad patents against competitors like Android with respect to touchscreen smartphone interfaces. On a different scale, this is occurring in the arena of podcasting. A February 7, 2012, patent issued for Personal Audio LLC that it is being put forth as essentially preempting podcasters in the medium, many of whom are small operations out a garage speaking to their audiences in weekly installments on all matters of, well, anything at all. Personal Audio has actually taken on Apple in the past and won $8 million in a suit for infringement of downloadable playlists.
Personal Audio’s patent is said to be the precursor to podcasting, as it set forth a “system for disseminating media content representing episodes in a serialized sequence.” Some of the podcasters Personal Audio has reached out to and invited to apply for a license include Maron, Adam Corolla, and Stuff You Should Know. Personal Audio has been criticized for having “not sold a product since 1998.”
The SHIELD Act, an acronym for Saving High-Tech Innovators from Egregious Legal Disputes, was initially introduced in 2011 by Rep. Peter DeFazio (D-OR) and Rep. Jason Chaffetz (R-UT) and intended to create a loser-pays rule by which the loser of the patent infringement or validity suit would be made to pay the costs of the opponents’ fees for the proceedings. The idea is to deter would-be litigants from filing frivolous suits regarding computer hardware and software patents, specifically, “where the court finds the claimant did not have a reasonable likelihood of succeeding.” The software portion is defined as covering “(A) any process that could be implemented in a computer regardless of whether a computer is specifically mentioned in the patent; or (B) any computer system that is programmed to perform a process described in subparagraph (A).” The revised bill intends to expand its scope to all patents to protect not just technology companies, but retailers, manufacturers, podcasters, and municipalities from being subjected to predatory litigation, as expressed in a press release from Rep. Chaffetz’s site.
It would seem like an oddly unjust policy to allow for a patent to cover a medium in its entirety; in the case of podcasts, an application of electronic audio files in a serialized form disseminated online. Legislative efforts like the SHIELD Act could help prevent patent litigation undertaken in bad faith.
For many podcasters, monetizing the podcast is an issue. While the format may be inexpensive, with the producers of the content often using nothing more than their microphones and a computer for interviews, it is not generally lucrative in a direct way. It seems that much of the value derived from the podcast for the broadcaster/podcaster is the goodwill it generates with the audience. It can also be an effective means of self-promotion; for example, a comic promoting his upcoming appearances and shows. Another mechanism for income is the utilization of ads for things like stamps.com or audible.com. This is all to say that podcasters may make for an odd target for this type of litigation, even if some podcast authors are more well-known and have somewhat deeper pockets. Is it because some in this demographic earn just enough to yield a promising settlement but not enough to pursue all-out “sport of kings” patent litigation?
There is also a question as to whether there should be a distinction made between original content available exclusively in the podcast format from, for example, a radio show on NPR that is broadcast live on terrestrial radio and via livestreaming online, and then packaged for downloads later as a podcast. Should podcasters now have to consider the high price of patent litigation just a cost of doing business?
As suggested in some comments on related articles like Techcrunch.com’s The Death of the Non-Practicing Entity?, additional measures could be taken to close potential loopholes, and to craft legislation to address not only NPEs, but NPEs that purport to be practicing entities. Arguments against the SHIELD Act suggest that it might stifle startup companies that have legitimate patent claims from litigating those claims, because the costs would be too burdensome if unsuccessful. Addressing the categories of companies that occupy the grey areas between practicing entities and NPEs might address that concern in some measure. What still remains is the larger issue of fairness and incentives created by the current standards used by the US Patent and Trademark Office in patent examinations and whether they are truly effective in promoting innovation, which was the original intent of patent protection in the United States Constitution.
Wednesday, March 20, 2013
Bowman v. Monsanto: Unlimited Right to Sue on Self-Replicating Genetic Technology?
On February 19, 2013, the United States Supreme Court heard oral arguments in Bowman v. Monsanto, Docket No. 11-076, a currently a pending decision. This case involves the question of whether the patent exhaustion doctrine applies to seeds, a self-replicating technology. A blog article entitled "A Soybean in the Supreme Court" does a snappy job of describing the case and the issue in layman’s terms. The two lower courts that have already decided on the matter both concluded in favor of the chemical giant, Monsanto. My argument is that this is one of many cases where the law has not caught up with technology. A seed (and, for that matter, a baby animal) is not like any non-self-replicating product, and policy should be changed to take account of the difference.
As aptly summarized by authors Raustiala and Sprigman, Mr. Bowman, now seventy-five years old, bought seed from Monsanto and signed a standard agreement not to use the seeds for anything but one planting, to give away the seeds or save any of their progeny. The agreement is recited in the decision of the most recent court to decide the case, the Federal Circuit, sitting in Indiana: Monsanto Co. v. Bowman, 657 F.3d 1341 (Fed. Cir. 2011). He later decided to plant a second crop in the growing season, and for this riskier venture, he purchased cheap seeds, more often used for animal feed, from a grain elevator where farmers sell discarded seeds. While Mr. Bowman was upfront with Monsanto, he did save seeds from the second crop, and planted them in following years. Monsanto eventually investigated his crops, found second planting seeds to contain its patented technology, and sued for multiple infringement of two patents.
The seeds he bought were "Roundup-Ready" soybean seeds. "Roundup-Ready" seeds have been genetically modified to live through a spraying with Monsanto’s "Roundup" herbicide, made with N-phosphonomethylglycene, commonly known as glyphosate. The herbicide will kill all other plant life in the field, eliminating weeds in a situation where hand-weeding would not be economically feasible, but other herbicides were only intermittently effective. But only "Roundup-Ready" soybeans will survive it. A non-patented older variety would wilt. This solution to the “weed problem” is described in the District Court case, Monsanto Co. v. Bowman, 686 F.Supp. 2d 834 (S.D. Ind. 2009).
The particular patents in the "Roundup-Ready" soybeans are patents 605 and 247E. The 605 patent is for the use of viral nucleic acid from the cauliflower mosaic virus, which is able to infect plant cells, as a method of introduction of new genetic material into plant cells. Using the 605 patent in the soybean, Monsanto was able to introduce the particular transformation covered by patent 247E, in which protein-encoding plant cells that encode for a glyphosate-tolerant enzyme were added. This created the glyphosate resistance in the "Roundup-Ready" soybeans.
Mr. Bowman argued that the patent on the seeds sold to the grain elevator was exhausted when the first farmers bought the seeds. The patent exhaustion doctrine limits the right of a patent holder to sue on that patent after the patented good has been sold. “A Soybean in the Supreme Court” gives a good example; if you buy a car containing many patents, and sell it to someone else, you’re not liable for infringement, because the patents in the car were exhausted at the first sale. The analogous doctrine in copyright law is the first sale doctrine. Many exclusive rights under copyright are exhausted once the physical copy is purchased, so if you sell a used book, there is no infringement problem. Nevertheless, you cannot make a copy of a Cadillac and then sell it as your own invention. That’s what Monsanto argued: by saving seeds that turned out to have the genetic characteristics that made them glyphosate-resistant, and planting them for a second crop in serial years, Mr. Bowman was replicating the technology.
Both the District Court and Federal Circuit came to the conclusion that if you make a copy of a seed by growing a plant and then saving its seed, you are infringing a patent—even after it has been sold twice. The exhaustion doctrine did not apply. Nevertheless, this non-traditional view of the exhaustion doctrine amply demonstrates the difference between a plant and a car. A car is made and done with. By its nature, a car eliminates the expectation that it will reproduce itself, and therefore the need to investigate car dealerships and local driveways, worry about in whose hands this car is, and sue repeatedly to remind owners that they cannot make a copy, all of which Monsanto does to maintain its patent rights over its genetically modified soybeans.
Raustiala and Sprigman point out that at least two of the Supreme Court Justices, Sotomayor and Chief Justice Roberts, appeared to be on the side of Monsanto. Chief Justice Roberts expressed the opinion that no one would want to make improved seed varieties if the patents could eventually be taken and replicated. This is the seminal reason for the existence of patents: to encourage people to invent and improve goods by ensuring financial reward for that invention. Justice Sotomayor said, “The exhaustion doctrine permits you to use the good that you buy,” but not to make another item out of the item you bought. On the other hand, when a “good” that gives birth, or sprouts, produces additional little replica goods, people need do very little to be hauled into court.
I would suggest the U.S. at least institute a policy to keep genetically modified crops from mixing with other crops. The European Union adopted regulations ensuring the traceability of genetically modified crops, while acknowledging that “certain traces of GMOs (genetically modified organisms) in products may be adventitious or technically unavoidable.” The regulations are accompanied by guidelines to be followed as best practices to prevent the mixing of ordinary, genetically modified, and organic crops. Neither are militaristic in restriction of patented self-replicating plants, but the existence of such regulations merely acknowledges the problem and tries to create a framework to control these patented goods. The life inherent in the genes of a seed does not know to whom it belongs, and will, like the Kudzu vine on southern roadsides, take over, if given the chance.
The U.S. should not let its self-determination and independence as a nation convince it that corporations may profit on their, yes, fascinating, yes, amazing patents, without limit. The blog that first drew my attention suggests that this is only the first wave in a sea of litigation to come, noting that many patents are already held on animals. I am completely at a loss to say what can be done legally with a patented animal: classified as a good, similar to a seed in its reproductive capabilities, but, at least in the case of Dolly, the cloned sheep, similar to humans in that it is warm-blooded and gives birth to live young. On the "Roundup-Ready" issue, counsel for Mr. Bowman made a few policy arguments in District Court, including the argument that Monsanto should have the responsibility to warn the grain elevator, or the farmers that sold the seed to it, about mixing. The District Court stated in reply that it “may disagree with the decision to award unconditional patent protection to Monsanto . . . but this court does not make policy; rather, it interprets and enforces the law, which, in this case, does not support Bowman.” Let’s make that policy now.
Friday, December 14, 2012
Federal Circuit Abolishes “Single-Entity Rule” for Inducement of Patent Infringement in Landmark Akamai Decision
The Federal Circuit, in a controversial 6-5 en banc decision, Akamai v. Limelight, held that an alleged infringer may be liable for inducing infringement of a method claim if it 1) performs some of the steps and induces another party to perform the remaining steps or 2) induces other parties collectively to perform all of the claimed steps. Akamai Techs., Inc. v. Limelight Networks, Inc., 2012 WL 3764695 (Fed. Cir. Aug. 31, 2012). Importantly, the majority held that inducement liability does not require that there be a single induced party that performs all of the claimed steps, or that the induced party is under the direction or control of the inducer.
The Federal Circuit’s decision arose from its en banc rehearing of two cases: Akamai Technologies, Inc. v. Limelight Networks, Inc. and McKesson Technologies, Inc. v. Epic Systems Corp. In Akamai, the owner of a patent claiming a method for delivering web content alleged that a network service provider performed all but one step of the method, and induced content providers to perform the final step. In McKesson, the owner of a patent claiming a method of electronic communication between healthcare providers and their patients alleged that a software company induced healthcare providers to perform some steps of the method, and induced patients to perform the other steps. In each case, a Federal Circuit panel affirmed judgment of non-infringement because the plaintiff failed to show that a single actor performed all of the steps of the claimed method. The en banc court reheard the cases jointly.
The Federal Circuit issued a per curiam opinion on August 31, 2012, reversing judgment of non-infringement in both the Akamai and McKesson cases, and remanding them for further proceedings. The court held that liability for induced infringement does not require that a single entity perform all the steps of a claimed method. Rather, liability for induced infringement arises when a party having the requisite specific intent (including knowledge of the patent) either 1) induces one or more actors to perform all the steps of the claimed method or 2) performs some steps of the claimed method itself and induces one or more actors to perform the remaining steps. The court reasoned that infringement by multiple actors causes the same harm to a patentee as infringement by a single actor, and noted that it would be a bizarre to hold someone liable for inducing another to perform all of the steps of a method claim but to hold harmless one who actually performs some of the steps himself.
In reaching its decision, the court did not reconsider the “single-entity rule” governing liability for direct infringement, which still requires that a single entity perform all the steps of a claimed method. The majority argued that its decision was supported by relevant legislative history, general tort principles, and prior case law. Conversely, the dissenting judges argued that the decision conflicts with Supreme Court precedent and basic principles of statutory interpretation.
The Federal Circuit’s decision simplifies the law of induced infringement. The decision is therefore favorable for patent owners and may give rise to more allegations of patent infringement because inducement liability no longer requires that a single induced actor perform all of the claimed steps. Also, an inducing act is very broadly construed to include acts of causing, urging, encouraging, or aiding. On the other hand, defendants accused of inducing infringement of method claims will have one less defense when multiple actors perform the claimed method. Companies that may be accused of inducing infringement may need to investigate whether their customers or suppliers are performing claimed steps, and if so, whether they may be inducing these steps, for example, by providing instructions to customers. There is also a possibility that the Akamai decision will not stand for long.
Wednesday, December 12, 2012
The Technology Patent System, Stifling Innovation?
In a recent Techdirt blog, when discussing the idea that start up companies should be less open in order to avoid patent trolls, the author opined that “What's stunning -- and depressing -- is that the patent system is supposed to be the thing that encourages innovation. And yet, because it's become totally dysfunctional, one of the recommendations for how to avoid running afoul of it now... is to do the exact thing that holds back and limits innovation. What a shame.”
The United States patent system is in a state of disarray, some say due to patent trolls, while others point to the large technology companies, such as Apple, Microsoft, and Google, using the system's weaknesses to dominate with overly broad patents. Patent trolls, companies that exist to sue over violations of patents, make it difficult for startup companies to gain access to a patent for their technology without getting sued. Trolls collect patents solely for the purpose of attacking companies, making cases that the company infringes their patent. The trolls bring lawsuits as a course of business and the large technology companies seem to be following suit, creating an arms race in the field of patent law. The number of lawsuits involving patents in the United States District Courts has almost tripled in the last two decades, the number of patent applications has increased more than 50% over the last decade, and it seems most of the money is going to the trolls and the lawyers.
Trolls have become very efficient in pushing their claims through and the data from 2002 to 2009 shows that the median award given to patent trolls is $12.9 million, while awards given to operating patent holders dropped to $3.9 million. This is a drastic contrast from data between 1995 and 2001, where practicing entities were getting higher median awards ($6.3 million) in patent lawsuits than non-practicing entities ($5.2 million). Patent trolls bringing these lawsuits to extort money from economically productive companies ties money up in lawsuits and hinders innovation, especially for smaller companies. Some argue that if this continues companies will start being intentionally vague and less open, which defeats the purpose of innovation. Research has clearly shown that what helps innovation is more openness and sharing, which will lead to economic growth.
Large companies are following suit, using their patents as weapons against their rivals. Billions of dollars are being spent on bringing lawsuits and buying patents that will never amount to anything. Apple has used patents as a defensive tool, specifically for the iPhone, essentially trying to patent every creative idea, even if knowing it would never lead to a patent. Although Apple knew that a patent would never be approved for a specific technology, they would apply anyway, preventing other companies from later trying to patent that idea. Large companies such as Apple have been accused of applying for overly broad patents, and that accusation has merit considering the patent applicant wants to cover every aspect of a new technology. For example, there are multiple ways to write the same computer, so by creating a broad patent by intentionally making the borders undefined it is easier to sue accusing others of encroaching on the patent. These overly broad patents also hinder innovation by giving monopolies on specific technology to certain companies. Most of the large technology companies are in lawsuits with one another spending millions of dollars as well as time battling in court, so the question becomes how far will this go?
Monday, December 03, 2012
A Look At the Internet Radio Fairness Act… and the Royal Mess That is the Copyright Royalties System That It Attempts to Address
Categories: Computers, Entertainment, Internet, Legislation, Licensing, Patent
On September 21, 2012 Rep. Jason Chaffetz (R-UT) introduced the Internet Radio Fairness Act of 2012 which would alter 17 U.S.C. §801, the statute which establishes the Copyright Royalty Board composed of Copyright Royalty Judges. Under the statute, the Librarian of Congress, as head of a freestanding entity, appoints this panel of judges who set default royalty rates and terms for webcasting digitally recorded music. While the Act enjoys five cosponsors, its senate counterpart has none thus far.
The Act proposes to make the appointment of Copyright Royalty Judges the province of the President with the advice and consent of the Senate, rather than that of the Librarian of Congress as is currently the case. The D.C. Circuit in 2011 held that the since the Librarian is restricted in the ability to remove Copyright Royalty Judges, Congress’s vesting appointment in the Librarian as head of a Department rather than the President makes limiting language of §802(i) unconstitutional as a violation of the Appointments Clause.
The Act would put the burden of proof on the party requesting a royalty to show that such royalty is reasonable. It would change the way rate proceedings are conducted by, for instance, removing the precedential effect of past royalty proceedings. Currently, rates for noninteractive broadcasting are based on interactive broadcasting rates. Much of these are based on extrapolations by expert witnesses testifying about which rates should be adjusted, using regression analysis to remove the effect of interactivity of broadcasting on precedent deals in the interactive market to guide rates to be set in non-interactive broadcasting—as in webcasting services like Pandora. Proponents argue this is problematic as a highly subjective and speculative analysis. Someone will be paying a rate based on fundamentally different market conditions from their own because of the inherent difficulty in trying to project what the non-interactive market actually is (See broadcastlawblog).
Currently, Sirius XM Satellite Radio pays about 8% of its revenue in sound recording royalties under the 801(b) standard while Pandora Internet Radio pays about 50% of its revenue in such royalties under the willing buyer/willing seller standard.
Are the uses that satellite radio makes of artists’ and producers’ copyrighted content so different from the uses used by internet radio services like Pandora as to justify such a large discrepancy in the royalties each one is to pay? SoundExchange is a non-profit tasked with collecting and distributing royalties on behalf of recording artists and master rights owners, that is, owners of recorded works. Its president is among the chorus against the Pandora-backed Act for its potential to reduce record label and musicians’ royalties. Analysts have said the bill seeks to create parity in royalties among internet, satellite, and cable TV services as a share of revenue instead of a flat rate per recording, currently at $.0011 per performance (each play of a song) per listener for an internet radio service.
Proponents of the bill argue that it would establish a fairer approach by using the 801(b) approach for all of these platforms. In theory this would close the gap between internet radio and satellite radio. It would also not allow standard AM/FM radio to pay much lower royalties than internet and satellite counterparts.
Opponents of the bill side with the willing buyer/willing seller approach. Among them is Congressman Jerry Nadler (D-NY) who has circulated a discussion draft of the Interim FIRST Act, touted as a promoting fair compensation for artists. MusicFIRST, a coalition of organizations representing musicians, performers, and producers, whose founding members include the Recording Industry Association of America (RIAA), criticizes Pandora’s lobbying against fair pay for playing authors’ works and seeking to raise profits since going public in mid-2011 when it was valued at over $3 billion at $16 per share. It is currently at $9.44 a share and has made $103 million in the second quarter of its fiscal 2013. Pandora’s opponents have suggested that it could generate more revenue with more ads on its site rather than trimming royalties on content it streams. Recording artists and musicians endorsing MusicFirst range from Jay-Z to Bonnie Raitt to Tom Waits. Which serves to better level the playing field here? Are these platforms even similarly situated? What is actually equitable here?
Proponents of the willing buyer/willing seller approach argue its approach makes an attempt to mirror the marketplace itself, while the 801(b) standard allows Copyright Royalty Judges the discretion to set rates that minimize any disruptive impact on the structure of the industries involved and on generally prevailing industry practices. It is unclear which approach ultimately provides a more equitable balance of the royalties to authors and master rights owners and revenues generated by companies using their content. The Internet Radio Fairness Act does appear to take a subtler approach to updating the current royalty system, which its proponents argue will promote greater innovation and growth in the industry by extending 801(b)’s benefits to all non-interactive broadcasters rather than a select few. The outcome will likely be more based on whose lobbying efforts prove stronger on Capitol Hill.
Thursday, November 22, 2012
Pigs Fly: Court Declares Heart Valve Patent Enabled for Human Use Despite Testing Only on Pigs
35 U.S.C §112 ¶1 requires that a claimed invention be reduced to practice; that is, described in the patent specification such that one of skill in the relevant art area would be able to read the patent and implement the invention. Without this requirement, useless specifications could confer patents on vague ideas rather than practical inventions. Doing away with this requirement would make a mockery of patent law. The Court of Appeals for the Federal Circuit disagrees.
In a recent patent law decision, Edwards Lifesciences AG v. CoreValve, Inc., 2012 U.S. App. LEXIS 23385 (Fed. Cir. Nov. 13, 2012), the asserted patent (5,411,552) went to a stent for a prosthetic heart valve. Prior to filing the patent, it had been tested only on pigs, not humans, which the invention ostensibly claimed. The various experimental implants in pigs were not always successful and design changes were made after the patent application was filed.
Edwards (the company asserting the patent) agrees that more developmental work was required at the time of filing. Co-inventor Knudsen wrote, in a contemporaneous report, that "questions such as size reduction, material and design optimization, and stent valve sterilization, remain unsolved," and that "much more work had to be done before anybody ever even contemplated using this for a human." Edwards' expert witness Dr. Buller testified that at the time the patent application was filed, it was "a device to perform testing on" and "not a device to move in and treat patients."
Despite the law, the patent was found enabled, and hence valid under §112 ¶1. The claim construction ruling by the district court, affirmed by the court of appeals, demonstrated bias towards the patent holder, as did an excessive damages award. The law seems to have been bent to fit the case.
In this case the court of appeals also went directly against the Supreme Court's eBay decision regarding injunctive relief. In eBay, the Supreme Court ruled that normally, financial compensation was sufficient; that injunctions were to be granted only after considerations of equity, which were not applied in this case. Instead, the court of appeals stated: “The innovation incentive of the patent is grounded on the market exclusivity whereby the inventor profits from his invention. Absent adverse equitable considerations, the winner of a judgment of validity and infringement may normally expect to regain the exclusivity that was lost with the infringement.”
Judge Prost’s dissent in the case, regarding the court’s treatment of the injunction standard, says it best:
“Some complain of areas of patent law in which our guidance is mixed or muddled. This is not - or should not be - one of those areas after the Supreme Court's clear pronouncement in eBay. eBay made clear that there is no general rule that a successful plaintiff is entitled to an injunction; rather, the plaintiff bears the burden of establishing the four equitable factors that weigh in its favor in order to obtain a permanent injunction. We should take care to avoid possible misinterpretation of an otherwise clear Supreme Court standard. [T]he majority's statements appear to me to deviate from the standard articulated by the Supreme Court and our court.”
Monday, November 12, 2012
Music to My Ears? - Setting a Precedent for Federal Copyright Infringement
Categories: Computers, Copyright, Entertainment, Internet, Licensing, Patent, Trademark
In one of the largest amounts ever awarded in an illegal file sharing proceeding, an Illinois judge has ordered defendant Kywan Fisher to pay $1.5 million to adult entertainment company Flava Works for illegally copying and sharing 10 movies on the file-sharing website BitTorrent. This case highlights a trend in the courts' increasing disapprobation for copyright infringement, and hints at the potential for an increase in the severity of punishments imposed for such crimes. In a world in which illegally downloading a film or audio file is as easy as clicking a button, users may want to think twice before they bypass copyrights or skimp on paying full price for their digital entertainment.
When Napster gained mass popularity in 1999 for allowing users to share files effortlessly and seemingly without consequences, it soon boasted over 25 million users. However, in 2001, only two years after its inception, Napster lost a copyright infringement suit and was subsequently forced to revoke the free access to mp3s that it once afforded its members. Despite indications that the legal system and record companies were attuned to the growing trend of file sharing, other sites such as AudioGalaxy, Morpheus, Kazaa and Limewire sprung up in Napster’s wake, bolstering the trend and creating even more fans of file sharing.
Predictably, however, users of these copycat sites soon saw themselves faced with lawsuits citing illegal downloading and copyright infringement. While no case has been as monumental or landmark in its consequences as Fisher, courts have, since the inception of file-sharing websites, taken seriously and not looked favorably on the activity. In 2010, defendant Joel Tenenbaum, a doctoral student in physics at Boston University, was convicted and slapped with a fine of over $67,000 for downloading and distributing 30 copyrighted songs using file-sharing software. Also in 2010, the case against Jamie Thomas-Rasset went to trial, resulting in a damages award of $2,250 per song, totaling an amount of $675,000.
Not surprisingly, many lawsuits involving illegal file sharing settle out of court, with defendants seeking to avoid costly litigation and potentially astronomical damages amounts. However, the amount of damages awarded in these types of cases has met with some controversy, with some judges deeming excessive amounts “unconstitutional,” overly “oppressive,” and greater than needed to serve the government’s legitimate interests in protecting copyright owners and preventing infringement. In an effort to assuage this controversy, Congress passed the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 which mandated that damages should not exceed $150,000 per infringement if the violation was committed willfully. In the case at hand, the judge utilized the maximum amount allowed under this statute, charging Fisher $150,000 for each of the 10 videos he copied and illegally shared.
In the thirteen years since Napster gained mass popularity, the Recording Industry Association of America (RIAA) and the U.S. Copyright Group have become increasingly zealous in their monitoring and suing individuals who utilize file-sharing sites. After initiating over 20,000 lawsuits against sharers of indie movies and other forms of digital media, the RIAA and U.S. Copyright Group, coupled with the hefty fines that usually accompany conviction, seem to have had a deterrent effect on internet users contemplating downloading an illegally shared file. Together with user’s ability to purchase individual tracks instead of entire albums on iTunes (often for as low as $.99 per song) and a similar opportunity to find songs on Napster for $.70-$.80 each, it appears as if the rate of illegal file sharing should soon be on the decrease.
The precedent set by Judge John Lee last week in Illinois that violators of federal copyright law could potentially find themselves paying millions of dollars for their transgression is a strong one that speaks loudly. In comparison to the minimal amount that it costs to acquire a legally distributed video or audio recording, the prospect of being fined such an astronomical amount will likely have a huge effect on those contemplating taking the easy way out and utilizing illegally shared files.
Friday, October 19, 2012
Recent Attack on the Federal Circuit is Factually Inaccurate
Edited on: Tuesday, October 23, 2012 5:22 PM
Categories: Computers, Patent
Software patents can be a prickly subject. Groups such as the GNU project and Free Software Foundation are vehemently anti-patent, claiming that software patents have a chilling effect. Others argue that the patent system instead acts as a net positive on innovation, and as evidence point to the greater overall success of countries with patent systems. While thoughtful debate in this regard is welcomed, occasionally clearly biased articles masquerading as journalism make their way into reputable news sources.
For example, the online publication Ars Technica recently published an article by Timothy B. Lee declaring that a single appellate court, the Court of Appeals for the Federal Circuit (CAFC), wrecked the patent system. Lee argues that the creation of the CAFC in the early 1980’s, a move intended to increase the uniformity of patent law, was disastrous. As the sole arbiter of patents, the CAFC effectively disregarded Supreme Court precedent by upholding patent holder’s rights in the vast majority of cases involving software patents. The article further claimed that software patents were generally considered ineligible for patent protection following a trio of cases by the Supreme Court a decade before the CAFC existed. The problem, however, with many of Lee’s claims is that they are demonstrably untrue.
As outspoken blogger Gene Quinn at IPWatchDog.com colorfully pointed out in a reaction piece, Lee grossly mischaracterized many of the judicial decisions regarding software patents. The trio of Supreme Court cases cited by Lee (Benson, Flook, and Diehr) indeed involved patents that claimed software elements. And, while the methods claimed in Benson and Flook were held patent-ineligible because they preempted the use of an abstract idea, the software-driven process of curing rubber in Diehr (and its incorporation of the Arrhenius equation was held to be patentable.
With the Diehr decision, the Supreme Court acknowledged that software, at least in some forms, was worthy of a patent. Recently, the Supreme Court has specifically acknowledged the patentablity of software in Bilski v. Kappos, a case which also put to rest any questions regarding a “business method exception” for patents.
Lee responded to Quinn’s article in a blog posting, again claiming that the CAFC, and not the Supreme Court, legalized software patents. In his post, he failed to address the Bilski decision and continued to mischaracterize Diehr. In response, Quinn had further kind words.
There are problems with the current patent system. Often, obvious claims are able to make their way through the patent office, which may be only found invalid after lengthy (and expensive) litigation. But to assert that these problems lie with a single appellate court is factually incorrect. Lee’s article is a clearly erroneous attack on the CAFC, one explained either by ignorance, or a biased agenda.
Monday, October 15, 2012
Apple v. Samsung: The Smartphone’s Role in Shaping U.S. Patent Law
In early October, South Korean company Samsung filed a motion in a California court claiming that Apple’s iPhone 5 infringed on eight of its patents. Some of the disputed patents include synchronizing photos, music, and videos and sharing them between multiple devices. Many in the patent community have faulted Samsung for choosing the courtroom as the forum for this dispute resolution. There is concern that large software companies are improperly using litigation as a means for negotiation.
However, Samsung was not the first to make a move in this mudslinging battle. Prior to this claim, Apple sued Samsung for patent infringement. Six of the seven disputed patents were found to be infringing. Most of the patents were design patents, which raise the question of whether design is actually invention that can be patent protected and whether it should be protected. Patent experts claim that this sort of patenting could quell innovation because Apple now controls a majority of the smart phone patent market and now has the possibility of controlling rights to more aspects of product.
The cases have attracted international attention and much international criticism. A Netherlands newspaper published an article entitled, “Apple vs. Samsung: In America, Even a 'Fart' can be Patented,” arguing that the U.S. patent system has reached the point of absurdity and allows far too much to be patented. In a South Korean editorial, “Apple vs. Samsung: More Proof that American Industry has Lost its Edge,” the U.S. is criticized for discouraging innovation through its patent court decisions and generally exhibiting sore loser tendencies.
It is possible that innovation will still occur in the smart phone industry, but around the Apple patents. Some predict that Samsung will now focus on windows-based products in an effort to steer away from possible infringement claims. The company remains the largest supplier of parts used in Apple products, ultimately providing 26% of Apple product components.
The recent wave of smart phone patent litigation seems to be an abuse of the U.S. court system and patent law in general. Apple’s recent victory over Samsung raises questions as to the appropriate reach of patent protection and its effects on innovation. Patent law was designed to encourage and facilitate innovation; however, these cases might result in the opposite.
Thursday, March 22, 2012
Texas Jury Invalidates Patent on the “Interactive Web”
Photo Entitled "sorry-no-internet-today-2.half" by Timsparke on Flickr
On February 9, 2012, an eight-member jury in the East Texas Federal District Court decided that a patent claiming ownership of the interactive web was invalid. Michael Doyle and his patent-holding company Eolas Technologies brought a patent infringement suit against some of the largest companies in the world, including, among others, Google, Yahoo, Amazon, YouTube, and Apple. The thrust of the claim was that a patent gave Doyle and his company ownership over certain features of the interactive web, including rotating pictures and streaming video.
Though the USPTO initially rejected the patent after it was filed in 1994, even after several re-examinations, Doyle persisted and eventually received the fought for patent in 1998. After the USPTO awarded the patent to Doyle and his company, they failed to put it to any practical use. Eolas holds many patents relating to the technology industry, and the only use it makes of them is to sue others for infringement. Another well-known case was an infringement action brought against Microsoft’s Internet Explorer, for which Eolas received a hefty settlement. These actions led many critics to give Doyle and his company the loathsome title of “patent troll.”
The defendants in the “interactive web” infringement suit argued vehemently that it was not Doyle’s invention, but rather Pei-Yuan Wei and his Viola browser, or Dave Raggett and his <embed> tag, that brought about the interactive web. In the end, the East Texas jury decided in favor of the defendants and found that Doyle’s patent was invalid. The defendants avoided a potential $600 million verdict, and perhaps a more challenging fate of needing to find a work-around for Doyle’s patent.
Though a patent holder is not required to make use of his patent, the actions of Doyle and Eolas Technologies highlight the nightmare that “patent trolls” can cause. The defendants in this lawsuit were forced to spend millions of dollars defending themselves against these infringement claims, as well as the possibility of losing the right to use the very technology that their companies were built upon. Perhaps public policy should call for a change to patent law wherein patent holders lose their right to the patent if they do not implement it after a certain number of years.
Wednesday, November 16, 2011
A New Business Strategy in the Technology Industry
Photo Courtesy of Honou
Apple and Samsung have been locked in an intense patent battle for months. Following drawn out litigation, the Federal Court of Australia awarded an interlocutory injunction to Apple, keeping the Samsung Galaxy Tab 10.1 off the Australian market until a full patent trial takes place. This ruling came just before Judge Koh of the U.S. District Court for Northern California ruled that Samsung’s device does indeed violate American patents held by Apple. These rulings come on top of other major losses suffered by the company in the Netherlands and Germany, where the Galaxy Tab 10.1 has been barred from sale.
Despite these enormous setbacks, Samsung is not backing down. On October 17, just days after its debut, Samsung put Apple’s iPhone 4S squarely in its sites. The company filed an injunction request in Australia and a similar suit in Japan arguing that Apple’s iPhone 4S violates wireless and user interface patents that the company holds in those countries.
However, these are not the only technology giants who have made patent litigation a core element of their business. In August, Google spent $12.5 billion to acquire smartphone manufacturer Motorola Mobility. Google CEO and co-founder Larry Page was not shy in revealing the company’s main purpose for shelling out such a large amount of cash for a company that is already a Google customer. Page stated that the move would “strenthe[n] the company’s portfolio” and better enable the company “to protect Android from anti-competitive threats from Microsoft, Apple, and other companies.” Moves like this that have led some experts to declare the existence of an “arms race” in the technology sector with companies competing to stockpile patents as insurance against potentially costly litigation.
Over the coming decade, we will have to pay attention to see if this hostility in the industry continues to cause an increase in patent litigation or, instead, results in something more cooperative. Some have suggested that the result of the current state will be cross-licensing deals between tech companies. With more patents in their portfolios, companies will be well positioned to negotiate agreements with other companies to not sue each other in a specific field. Such deals will allow companies on both sides of the deal to concentrate more time and money on continued innovation. However, if this is not the case, there is a strong possibility that companies could bring their business overseas to avoid the particularly litigious nature of the American patent system.
Dan Ravicher, executive director of the Public Patent Foundation, rather ominously summarized the current state of affairs when he said, “With arms races, we can only have peace through a lot of fear.”
Friday, October 07, 2011
Reforming R&D Tax Incentives: Do Video Games Deserve Special Treatment?
Edited on: Friday, October 07, 2011 5:58 PM
Categories: Computers, Entertainment, Legislation, Patent, Taxation
Image Courtesy of Wikimedia
In September, the New York Times reported that video game designers have been taking advantage of tax breaks meant for other industries, often under terms more favorable than those received by many of the originally intended recipients. Electronic Arts (EA), for example, paid $98 million on $1.2 billion of operating profits over the last five years—an effective corporate tax rate of just under 8.2%. In addition, EA has set up off shore subsidiaries in tax havens and successfully lobbied Congress for new tax breaks.
Firms claiming the federal R&D tax credit elect to receive either a credit for 20% of their research costs above a base amount, or 14% of the excess above the average of the last three years’ R&D spending. I.R.C. §41. Inventive procurement of R&D tax credits has become a lucrative business for the accountants and attorneys who assist firms in obtaining these tax breaks. AlliantGroup, for example, specializes in helping clients obtain tax incentives, and claims credit for helping its clients secure over $1 billion in R&D tax incentives to date.
Claiming the R&D tax credit has become more difficult since its heyday in the 1980s, the NY Times writes, “the credit was being claimed by businesses with little technological background — fast-food restaurants, hair stylists and fashion designers.” Marketing and social science research are no longer eligible for the R&D tax credit. But previous plans to further restrict the credit to basic research have been as poorly designed as the original credit. The Clinton administration proposed restricting the credit to research producing an “actual innovation,” but the Bush administration dropped the proposal as unenforceable.
This difficulty of the enforcement rationale, however, is specious. According to Alliantgroup, more than $5 billion in R&D tax credits are given out annually. Given the amount of money at stake, significant enforcement efforts are warranted. The entire budget of the US Patent and Trademark Office is only about half the amount spent on R&D tax credits. The cost of determining the novelty for products supposedly qualifying for R&D tax credits would be worthwhile if it brought in more revenue by ending frivolous tax credits.
The actual cost, however, would be much lower than the cost of de novo assessments of novelty, as the IRS could treat R&D tax credits as it does the rest of the tax code: grant the credit, only questioning it if the application raises red flags or is part of a routine audit. The threat of being one of those randomly chosen for an audit would ensure substantial honesty from most taxpayers. In the event of an audit, a patent could be accepted as incontrovertible evidence of an “actual innovation.” An innovation subject to trade secret protection would still be eligible for the tax credit as long as the company could prove to auditors that such an innovation existed.
The real problem with the “actual innovation” requirement is that it would increase the tax burden on companies which engage in significant, valuable, but unsuccessful research. Ninety percent of new drugs, for example, fail in clinical trials. Successful research is already incentivized through market forces. There is no need to convince companies to engage in research they know will be successful. The real benefit derived from R&D tax credits is the mitigation of risks involved in R&D expenditures, by reducing total losses, so research failures must be subsidized along with successes.
Alternatively, Congress could simply make a political judgment about which industries or types of research create enough public benefit to deserve R&D tax credits. When video game developers change a few lines of code to create version 10 of their game are the really conducting “research” on something that provides public benefits beyond what the market can reward adequately? Alliantgroup argues that video games do produce public benefits, such as the use of some video games in training military personnel. But this benefit is rewarded by lucrative defense contracts. The best rationale Electronic Arts can come up with is that it donates some games to charity. This, of courses, is already rewarded by a separate tax write-off.
Making video games does create jobs, just like every industry. But making video games is profitable. There is no evidence that game producers would choose to stop making potentially profitable investments if they stopped receiving favorable tax treatment. And even if deprived of the R&D credit, they would still be eligible for the economic development credits given to every industry. R&D tax credits will continue to be just one more government handout for the already well off, unless they are restricted to research which has public value beyond what the market will reward. Those who advocate preserving or expanding the R&D tax credit for video game producers have failed to make a convincing case that there is a public benefit.
Tuesday, September 27, 2011
President Obama Signs First Major Change to Patent Law Since 1952
On September 16, 2011, President Obama signed the Leahy-Smith America Invents Act at Thomas Jefferson High School for Science and Technology in Virginia. One of the significant changes resulting from the America Invents Act is a move from a “first to invent” to a “first to file” patent priority system. Until the recent enactment, the United States was one of the only countries using the “first to invent” system.
To gain the right to a patent under the “first to invent” system, an inventor had to conceptualize the invention and reduce the invention to practice. An inventor could not file a patent application based only on the idea of an invention. Rather, the inventor who put the idea to practice first had the right to the patent. A criticism of the “first to invent” system is that it led to extensive litigation to understand who actually reduced the invention to practice first. On the other hand, the “first to file” system gives the right to a patent to the first person who files the application. An inventor does not need to reduce the invention to practice to be able to file the patent application.
It is not surprising that the Act has generated considerable discussion since it is one of the most significant changes to Patent Law since 1952. Proponents of the bill believe the change from a “first to invent” to “first to file” system will decrease the confusion over who has the right to the patent, and will promote innovation and job creation. The change in the system will allow a clear understanding of who has the right to the patent, which in turn should allow inventors to develop products at a faster pace and decrease the amount of litigation over who owns the right to a patent. Opponents of the bill believe bigger companies will benefit, while smaller businesses and independent inventors will suffer because of a larger company’s ability to file patent applications faster. Opponents also worry that the transition to a “first to file” system will create an increase in the number of back-logged patent applications.
Despite the criticism, a change in the patent law was an inevitable and necessary step. There are currently 1.3 million patent applications waiting for determination and numerous cases of costly litigation to confirm patent ownership. The “first to file” system should provide clarity to patent ownership rights, but it is unknown whether this change will impact the speed in which patents are granted. The “first to file” system will not go into effect for another 18 months, so we will have to take a wait and see approach before concluding that the enactment actually helped reduce the current problems with the patent process.
For the full bill text, see America Invents Act of 2011.
Tuesday, March 29, 2011
Antitrust Officials Investigate MPEG-LA’s Patent Call Regarding VP8
The Department of Justice, along with the California State Attorney General’s Office, recently began an antitrust investigation into MPEG-LA’s call to various organizations and companies to identify whether they hold any essential patents used by the VP8 video codec. The main concern of the investigation is whether MPEG-LA is simply trying to stifle development and proliferation of the competing codec, as opposed to legitimately expressing concern over whether VP8, which is currently open source, contains patented material.
MPEG-LA is a Denver based company that licenses patent pools covering patents required for use of MPEG-2, H.264 and various other video encoding standards. H.264 is one of the most frequently used formats for the recording, compressing and distributing of high definition video. Both Microsoft and Apple own patents in MPEG-LA’s H.264 patent pool. Additionally, their browsers (IE9 and Safari, respectively) support H.264 and each of these companies has built H.264 into its operating system. MPEG-LA does not charge royalties for H.264 video that is delivered free to end users. However, MPEG-LA does charge royalties for devices that encode and decode H.264. Additionally, MPEG-LA charges royalties for H.264 video sold to end users for a fee.
VP8 is a video encoding format that many agree produces remarkably similar video delivery to H.264. It was originally developed by On2 Technologies. Google, having bought On2 last year, currently owns VP8. Shortly after having acquired VP8, Google responded to calls from the Free Software Foundation as well as others and open-sourced VP8. As such, Google does not collect any royalties whatsoever for the use of VP8. Mozilla and Opera Software have built VP8 support into their browsers. Adobe has agreed to build VP8 capability into its Flash Player plug-in.
MPEG-LA’s patent call is part of an effort to create a joint VP8 patent license. In order to participate in the joint license, a party must contain at least one essential patent in VP8. A team of patent evaluators with MPEG-LA will determine the essentiality of the patent. MPEG-LA has stated that it will only charge royalties for use of a given patent in VP8 after a certain number of years, which it has yet to determine. This investigation is taking place against the background of the World Wide Web Consortium’s (W3C) developing of html5, the next language for arranging and portraying content on the internet. It is still uncertain what video codec html5 will use to display video content. H.264 and VP8 are both considered prospects as the video codec of choice for this future format. Antitrust officials are concerned that MPEG-LA is attempting to frighten other companies from adopting the VP8 standard for fear of having to pay future royalties. MPEG-LA is doing so, officials worry, in order to improve its own position as the video codec of choice for the future.
Whether or not antitrust officials will decide to take legal action is a tough call. Part of their decision will hinge on whether they find that the software comprising these video encoding technologies is obvious; in other words, people could simultaneously and independently develop this technology. Material that is obvious is not patentable. Hence, should officials find the software obvious, they will be that much more likely to find MPEG-LA’s actions legally tenuous at best.
Tuesday, January 25, 2011
Supreme Court to Review Largest Award Ever Given in Patent Infringement Case
(Photo by: Tsukubajin)
Back in November, the Supreme Court granted certiorari in Microsoft v. i4i. The small Canadian company sued Microsoft for patent infringement and was awarded $290 million in damages. Microsoft claims that standard of proof was misapplied in this case.
The dispute arose in 2007 after i4i claimed that Microsoft misused its patent in Word 2004 and 2007. The patent is for text manipulation software which Microsoft has since stopped including in its program. In 2009, the trial court awarded i4i $290 million in damages. Microsoft appealed the decision which was later affirmed. The Supreme Court announced its decision to hear the case sometime in 2011. Chief Justice Roberts has already recused himself because he owns Microsoft stock.
With the support of technology titans Yahoo, Apple, Google, HP, and Facebook behind them Microsoft is hardly the only one advocating for a change. Microsoft’s defense was that the patent was invalid. The current standard for proving that defense is by “clear and convincing evidence.” It has been the standard for the past 26 years. Microsoft defended its position by saying there was evidence that there was a prior offer of sale that the US Patent and Trademark Office did not consider. In light of that, Microsoft believes the standard should have been lowered to the normal “preponderance of the evidence” standard in civil cases.
If the Supreme Court decides to lower the standard for patent infringement defenses, it will have a dramatic effect on patents. Courts will be put in a position to invalidate a high number of patents. It will make it more likely that good patents will be invalidated as courts are flooded with patent legislation. Furthermore, a lower standard will make patents more susceptible to infringement. Proponents are quick to respond that it is also more likely to invalidate bad and questionable patents as well. Some commentators feel that this is a case of big business attempting to impose its will on small, individual patent holders and inventors.
Whichever side the Court comes down on, there will be significant benefits and drawbacks. This highlights the need for real reform at the US Patent and Trademark Office. If the USPTO had the resources to efficiently and properly research each application, then the courts could give greater deference to an issued patent. This would reduce litigation by making rulings more predictable and give businesses a clearer picture of the bounds of their IP rights. Even after centuries of patent case, standards are still unclear, leading to many lower court decisions being overturned. Microsoft v. i4i is another example of why the courts are not the proper place to determine a patent’s validity.
Wednesday, October 20, 2010
Out With the Oil, In With the Green
Sometimes change in technology is facilitated by wise innovation, diligent research, or accidental discoveries. And other times it is forced by an oil leak off the Gulf of Mexico spilling 60,000 barrels of oil a day into the ocean. More than ever, our country is facing the harsh reality of the worlds’ severe dependence on a limited energy source. On June 15, 2010, in his first televised address from the Oval Office, President Barack Obama demanded advancements in clean energy sources and technology, which would require refocusing innovation and creativity towards a solar-based way of life. “The tragedy unfolding on our coast is the most painful and powerful reminder yet that the time to embrace a clean energy future is now,” said President Obama. “Now is the moment for this generation to embark on a national mission to unleash America’s innovation and seize control of our own destiny.”
Before the oil spill, the United States Patent and Trademark Office (USPTO) decided to execute a green technology pilot program on December 7, 2009, intended to expedite the patent application and examination process involving green technology inventions. If this program is effective, this effort could prove beneficial in facilitating the President’s determination to wean America off its dependency on oil and introduce the country to a clean energy source.
Apple is Granted Patent on “Anti-Sexting” Technology
Apple has been granted a patent in the United States for technology that would prevent “sexting” from their iPhone. This technology could be used by adults to prevent children from sending or receiving sexually explicit messages. It would allow a phone’s administrator to block incoming or outgoing text messages containing specified words. Messages containing this explicit material would either be blocked or have the offensive language redacted.
Apple contends in the patent application that this new technology is necessary because old methods of monitoring text communications have, in large part, failed. Apple argues that restricting a child’s communication to a pre-set list of phone numbers, as is the common modern method of monitoring communications, does not address the content of those communications. The company further asserts that this technology can be used as a teaching tool by not allowing communications unless the message is written with correct grammar. Although it is not clear how this technology will be built into future iPhones, it is known that it will work with the existing text-messaging technology.
Although a major step for technology, this application will not prevent sexually explicit message from being sent or received by children. First, the technology does not address the capability of sending sexually explicit images. Phones with this technology will still receive graphic images or depictions of sexual situations. Second, the technology will not be able to recognize familiar euphemisms that are used in place of explicit language. A person wanting to send sexually explicit information on a phone with this technology will simply send a picture or use slang to make an end-run around the system.
© Copyright 2010 The Journal of High Technology Law, Suffolk University Law School
Suite 450B | 120 Tremont Street | Boston | MA | 02108-4977 | Legal and Copyright Information