The American Intellectual Property Law Association (AIPLA) filed an amicus brief before the Fifth Circuit last week in the case of In Re Volkswagen of America Inc., suggesting that the Eastern District of Texas has been overly reluctant to grant transfers of venue in patent cases. The AIPLA argued that litigators have found the district to be very “plaintiff friendly” and intellectual property claims are often filed which “have essentially no connection to the district.” According to the brief, “more patent cases were filed in the Eastern District of Texas in 2007 than in any other district.”

The brief outlined four major reasons why the court has misinterpreted the federal transfer doctrine:
1) The court has been giving undue deference to the plaintiff’s forum choice
2) The court has not given enough weight to the convenience of parties and witnesses
3) The court has placed too high of a burden on defendant’s to prove that a more convenient forum exists
4) The court has placed too much weight on the slight public interest of the district in comparison to the drawbacks of an inconvenient forum.

A report released last week by WIPO concludes that cybersquatting activity continues to increase. The report offers several explanations for the increase, including domain name “tasting” — whereby the registrant holds the domain during a free trial period and uses it as a link farm — and a sharp increase in the number of accredited registrars, some of which actively seek cybersquatting business.

The European Commission in Brussels has proposed an extension of copyright protection for performers to 95 years. European performers currently enjoy only 50 years of protection, which is far less than that of composers who receive protection up to 70 years after their death.

In an effort to level out this inequity, law makers are seeking to protect thousands of performers whose airplay royalties are set to expire in the coming years. The Commission cited concern over the fact that many musicians perform at a young age and increasing life expectancies have lead to performers depending on income from royalties in to their 70′s and 80′s. If approved, the proposal would ensure that many of the artists from the 1950′s and 1960′s will receive royalties for the remainder of their lives.

For the proposal to take effect, it must be approved by the member states of the European Union as well as the European Parliament.

On the Brian Lehrer show yesterday, Doug Rushkoff suggested that the U.S. Constitution and the Talmud are open source projects.  This strikes me as, well, overstated.

In the context of open source biotechnology, I’ve written about the “hacker culture” required to support open source norms. This sort of culture, I think, is very different than a contractual community established by a constitutional document or an interpretive community surrounding a set of canonical sacred scriptures.

It’s true, as Rushkoff noted on Lehrer’s show, that constitutions usually provide procedures for amendment, and of course the U.S. Constitution has been amended numerous times. Those procedures, however, typically reflect the agreement of the community governed by the constitutional document that amendements should be difficult and rare. Article V of the U.S. Constitution, for example, requires a two-thirds vote of Congress or an application by the legislatures of two-thirds of the states, followed by ratification by three-fourths of the states. If this is “open source,” then “open source” simply means “possible, though exceptionally difficult, to change.”

The Talmud presents a more interesting example, because there is significant diversity in the various Talmudic traditions, although the Orthodox tradition resists the notion of historical editorial change in the oral law reflected in the Talmud. However, the Talmud expounds and interprets the written law, the Torah. The Talmud therefore reflects the activity of interpretive communities connected to a “closed source” written law. I think most of the writers of the Talmud would have been horrified to have been portrayed as “hacking” the Torah. If the Talmud was an “open source” project, then we can apply the term “open source” anachronistically to every interpretive community that ever existed — which might include everyone who has ever read a text.

Conferees at an intellectual property symposium held at University of California Berkeley’s Boalt Hall School of Law debated the importance of patents with today’s technology. Brad Feld, a venture capitalist, described software patents as an “evil scourge on our planet” that stifle innovation and believes technology has no value by the time it is patented. Feld stated software patents should be abolished and the problems of software patents would be solved with large companies creating patent software commons of cross licensing the patents. The use of patents, however, is essential to the success of smaller companies.
Despite Feld’s claim that software patents are an “evil scourge on our planet” that stifle innovation, smaller companies thrive on the patents that protect the development of their innovations. Although technology is rapidly developing and many of today’s “innovations” will be obsolete before the expiration of its patent, many companies rely on patents to ensure their livelihood or for substantial profit because they have considerably stronger bargaining power. If a larger corporation or competitor wants to utilize the new technology they have to come to either purchase the rights to the patents or outright purchase the company to procure the patent itself. Given the strength of their position, companies utilize these patents to parlay their business into licensing agreements or sell them for profit.

This is exemplified by companies such as Xencor Inc., that have used IP as a catalyst to convert its innovations into success. Bassil Dahiyat, Xencor’s President and CEO, has stated that in the biotech industry “no IP equals no investment.” The development of new technologies in the biotech industry is so rapid that it becomes a race to beat your competitors to filing for patents. Much of Xencor’s business can be attributed to licensing agreements with partners and former competitors. Without the protection of IP, much of Xencor’s success would not have been achieved.

Although Feld contends software patents stifle innovation, their abolishment would be more stifling than their execution. Smaller companies often lack the resources to develop and market their innovations and rely on the protection and opportunities afforded to them by patents. Without patents, many of these small companies will be bulldozed by larger corporations because they are no longer protected nor do they have an enhanced bargaining power. Larger companies will be able develop and market these innovations without regard to suffering any repercussions and will consequently leave the original developers with nothing to show for their efforts. If patents are abolished as Feld proposes, smaller companies would not pursue developing new technologies and that would be stifling innovation.

Recent debate in the WTO TRIPS Council over whether indigenous biological resources and traditional knowledge should be disclosed in patent applications appears stalemated. Developing countries, including India, Brazil, and the African, Cuban and Pacific countries, support an amendment to TRIPS that would require such disclosures, with the sanction of patent invalidity for failure to comply. Most developed countries, including the U.S. and the EU, either oppose any amendment (U.S.) or oppose the sanction of patent invalidity (EU).

I think some sort of remuneration mechanism is necessary and appropriate. The sanction of patent invalidity, however, might inject too much uncertainty into the patent system. Perhaps a system of graduated remuneration (upon proper disclosure) and sanction, providing for patent invalidity only in cases of clear, intentional non-disclosure, would be more equitable and effective.

We’ll be presenting a program entitled “New Developments in Drug Approval Law” at Seton Hall Law School on April 9, 2008, in conjunction with the New Jersey Intellectual Property Law Association. The program features leading international practitioners and our own Prof. Carl Coleman, as well as wine and cheese, lunch, and free parking. What could be better? Click for registration and more information.

The Scientist blog reports that the Indian government is prepared to approve a law, modeled after the U.S. Bayh-Dole Act, that will allow university researchers to patent their discoveries. The article quotes Ashkay Anand, an Indian neurology professor, as follows: “IP has always been a neglected aspect of Indian science (particularly the area of medical research) where pursuit of knowledge is always considered at par with [an] act of worship.” The university tech transfer culture is controversial in the U.S., where some scientists and scholars argue that the urge to commercialize upsets cooperative research norms. It will be interesting to see whether a pro-patent culture will develop in Indian universities.

Google’s influence on the terms of the FCC spectrum auction has gotten a lot of news coverage. I’ve praised Google’s approach to copyright, criticized it on transparency, but now I’m back to praise on this issue. It’s fighting for net neutrality–a big concern given AT&T’s apparent censorship of Pearl Jam for anti-Bush lyrics (and, even if you believe it was a “mistake” by AT&T, the power of the carriers the incident demonstrates).

However, Google should also think about its own obligations as a de facto common carrier in the digital age. Even the Wall Street Journal recognizes its unique status as digital bottleneck. In a July editorial, Holman Jenkins said

Google’s . . . dominance in search and advertising. . . [and] its ability to control which Web sites and Web businesses receive traffic make[] it a far likelier candidate for ‘public utility’ treatment than the . . . players who make up the broadband world.

Web journalist Brian Utter has also suggested that search neutrality may need to come before net neutrality.

In a recent paper I co-authored with Oren Bracha (to be submitted to law reviews in a few days), we examine whether some net neutrality principles should extend to dominant search engines like Google. The paper is constructively criticized here and here; I’ll soon post some responses from Oren and me. And I’m glad to see that a leading communications researcher is raising similar questions.

Yale Law Prof. Ian Ayres’s Super Crunchers celebrates the new era of data-driven decisionmaking. A NYT piece provides a nice introduction to these technologies:

[W]hen so much data is processed so rapidly, the effect is oracular and almost opaque. Even with a peek at the cybernetic trade secrets, you probably couldn’t unwind the computations. As you sit with your eHarmony spouse watching the movies Netflix prescribes, you might as well be an avatar in Second Life. You have been absorbed into the operating system. . . . [W]hen executives at MySpace told of new algorithms that will mine the information on users’ personal pages and summon targeted ads, the news hardly caused a stir. The idea of automating what used to be called judgment has gone from radical to commonplace.

Jeff Lipshaw asks, in response: “is it possible to program [such automation] so powerfully that it replicates all possible human (i.e. brain) programming?” And Larry Solum helpfully brings up a 1990 article he wrote on the implications of such questions for law: “Could an artificial intelligence become a legal person?”

Though such a possibility might seem a long way off, it is embedded in some recent legal arguments of Google. Google is perhaps the world’s premier example of “automating judgment;” its engineers are constantly thinking of new ways to order information in response to search queries. According to one of its court filings, “Google takes extraordinary measures to protect its trade secrets and confidential commercial information.” While resisting any efforts to “peak under the hood” of its search processes, Google also has been claiming that whatever results they come up with should be protected under the First Amendment. So one of the questions posed by Solum has nearly come to a pass: Google is seeking constitutional protection for what (it assures us) is an entirely automated process. Should it get it?
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