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Category: Intellectual Property

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Business Method Patents Are In Trouble

The transcript of the oral argument in CLS Bank v. Alice Corp. is now available.  My takeaway is that the Court may revisit its statement in Bilski that business methods are patentable.  Justice Ginsburg said twice that four Justices (including herself) had signed Justice Stevens’ concurrence in Bilski that took issue with the Court’s position, and did so in a way that sounded like she wanted a do-over.  More significant, Justice Kennedy (who wrote Bilski) kept pressing for an example of a valid business method patent and seemed unsatisfied with the answers.

Holding that business methods are unpatentable would be better than the alternatives of doing nothing (i.e., invalidating this patent on the narrow ground that is comparable to the patent invalidated in Bilski), getting rid of all software patents (nobody seemed interested in that), or coming up with a test for abstract ideas that could actually work (an almost impossible task).  And getting rid of business method patents would go a long way towards solving the problems posed by patent trolls.

Of course, this is what I thought the Court would do in Bilski.  We’ll see if there are five votes this time.

UPDATE:  After reading the transcript again, I’m less optimistic that the Court will do anything significant.  Maybe the only thing they can get five votes for is a judgment that this patent is no more concrete than the one in Bilski.

 

 

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The Economist Notes that Patents Do Not Equal Innovation

The Economist had a recent piece about software patents and said, GASP “[P]atent issuance is a poor measure of innovation.” Amen. But wait! Don’t order yet! There’s more! “Patenting is strictly a metric of invention. Innovation is such a vastly different endeavour—in terms of investment, time and the human resources required—as to be virtually unrelated to invention.” (The applause and boos commence simultaneously).

Innovation is meaningless as well, but the first step is to admit the problem. There may be some relationship between patents and incentives to create certain things. But not all patents or all creations show a correlation to a general claim that patents equal innovation or whether innovation will occur without patents. Innovation as “Hey that rally changed the way we do things” probably can’t be identified until much after the event. Innovation as “Hey we made tons and tons of bitcoin, oh we mean cash” is easier to spot but a different metric as far as policy should be concerned. The better disposable razor or even iPhone is incremental while also important. Parsng the differences amongst what types of innovation is well-beyond a blog post. But should folks want to hurt their head and wear out their hands, please write at length. I will look forward to reading what you find.

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Yep, There It Is, Amazon Embraces 3D Printing

In the mists of yore (i.e., December 2, 2013), I wrote that Amazon seems well-placed to embrace 3D printing to cut labor costs and offer same-day and/or back-catalog things, as in physical goods; now Amazon has. Similar to Amazon’s move of buying one of the major on-demand publishers of books, it has partnered with 3DLT which has been called thethe first store for 3D products. Amazon has also opened a 3D printing store-front. WaPo’s Dominic Basulto gets the point that Gerard and I have been making in our paper Patents Meet Napster, and I keep seeing in so many areas of technology. Basulto notes that just in time retail could take on a new meaning. As he puts it:

[T]he future is one in which users simply upload or download 3D design files and print them out with 3D printers. Everyday consumer products, in short, will eventually follow in the wake of plastic toys and plastic jewelry. In this radically new business model, Amazon would be selling the 3D design files and the 3D printers and the 3D printer filament, but wouldn’t be selling actual “products” as we currently think about them. The consumers would print the products, not buy the products.

Yep. That’s about right. And as Gerard and I argue, this shift will highlight questions about patents and also trademarks. Folks may want to know that the files and the materials for the things they print are safe and trust-worthy. Enter brands and enter Amazon (and eBay to be fair) which have been brilliant at setting up online trust-systems so that we can do business with random company in random place and have a high probability that the deal will occur, be as promised, and not leak our credit cards (Amazon does this by not sharing your credit card with third parties last I checked).

Now all we need is nano-goo-fueled replic– er uh, excuse me, 3D printers — and the Diamond Age will be here.

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Digital Futures, Why Bother?

I enjoy thinking about the implications of technology but some recent “Theses about the digital future” at Pew are not satisfying as compared to a recent article by Neil Gershenfeld and JP Vasseur called “As Objects Go Online.” Pew does some excellent work, but this one is rather odd. The predictions are vapid, and some contradict each other. In contrast, the Gershenfeld and Vasseur piece focuses on one idea, The Internet of Things, and offers much more. My work on 3D printing with Gerard was partly inspired by the digitization of things. The idea there is about digital mapping and reproducing tangible goods. Gershenfeld and Vasseur are looking at how we are already networking objects:

Thanks to advances in circuits and software, it is now possible to make a Web server that fits on (or in) a fingertip for $1. When embedded in everyday objects, these small computers can send and receive information via the Internet so that a coffeemaker can turn on when a person gets out of bed and turn off when a cup is loaded into a dishwasher, a stoplight can communicate with roads to route cars around traffic, a building can operate more efficiently by knowing where people are and what they’re doing, and even the health of the whole planet can be monitored in real time by aggregating the data from all such devices.

The connection between Gershenfeld (also a leader in 3D printing) and my ideas is the drive to show that many battles will be about “command-and-control technology [versus] distributed solutions.” Gershenfled and Vasseur believe open, distributed ideas will win. I am hope they do. I am not as certain that such outcomes are necessarily where we are headed. That is why even with its somewhat thin offering the Pew Report may help. The collection of obvious observations may help draw attention to pressing issues of today, not Digital Life in 2025, as Pew has dressed up its report. The descriptions are decent but not prescient. They are below in case you want to see them here. THe key take away, I think, is that anyone who thinks the implications of digitization have been addressed, understood, and solved by our experiences with copyright and privacy to date is mistaken. This world and the one coming are quite different. I must admit that I can’t pinpoint exactly how and why it is different. That is my goal over the next several years. But I can say don’t expect the analogies, frameworks, and laws of old to make much sense as we move forward. That does not mean all is lost. Rather it means we get to shape what happens next, just as folks did at the dawn of Western capitalism and individualism in England and at the Industrial Revolution. Should be fun and frightening; so buckle in.

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Bottlenecks and copyright

Yes, you read that headline correctly. This post explores how Joseph Fishkin’s new theory of equal opportunity applies to… copyright law. As I hinted earlier, this is seemingly an unlikely connection. It is thus a connection that uniquely demonstrates the generativity of Bottlenecks.

Other posts in this symposium by Wendy Greene and Jessica Roberts have explored how Bottlenecks applies in the context of workplace anti-discrimination rules. Brishen Rogers extends the workplace focus by exploring how labor unions fit into the theory. And my own earlier post connects Bottlenecks to legal education reform.

Copyright scholarship, however, is not where we expect to encounter a new theory of equal opportunity. Yet that is where I found myself applying Fishkin’s framework, which finally provided the language and conceptual clarity to express what struck me as so profoundly problematic within my own field.

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3D Printing, Maybe It Is Magic

More and more 3D printing seems like it’s magic. In Patents, Meet Napster: 3D Printing and the Digitization of Things Gerard and I explain that it is not quite magic yet. And our argument is that the law can perhaps make sure the technology has a chance to reach a magical stage. That said each day we wrote a new report made me wonder at how quickly the technology is moving.

Forbes reports that a jewelry company is using 3D printing and Google Earth to print $250,000 jewelry. A couple weeks ago UC Hastings put on a Symposium to Illuminate Legal Issues Posed by 3D Printing Technology. I spoke and had a great time meeting more folks interested in the technology and in seeing it thrive. Mark Lemley gave the key note and is poking at many ideas that resonate with me and my work. He spoke about how technology is changing scarcity and will affect labor. The Forbes piece captures the shift:

Shoppers can completely customize their own design and have the finished product delivered in 3 or 4 days. “We’ve had a great deal of difficulty competing with cheap labor overseas,” said Bakhash, whose father Charlie founded American Pearl in New York’s diamond district in 1950.

“Now, with the advent of our platform, we’re no longer taking off-the-shelf parts and welding. There’s no jeweler at a bench with a blowtorch. The cost and labor savings is phenomenal. And we’re empowering consumers to make jewelry in real-time.”

The process starts on AmericanPearl.com, or its sister site AmericanDiamondShop.com, where a customer is able to create a unique piece, whether a $400 pair of earrings or a necklace that goes for six figures.

The Maker movement and the new wave of customized things is fascinating and exciting. But it may be that the hand-crafted, Etsy moment will be short-lived and the automated, design and print world will take over. I think that the result will be a hybrid. Folks will use the tech to produce more and to make customized goods for less cost. Some labor will be eliminated. Some labor such as design will be valuable. But just like the shifts in copyright, we will see strange and large shifts in who makes money and how it is made. Then again not all of us can be poets and also eat. More on that in another post.

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Third Annual Robotics and Law Conference “We Robot”

hdr-we-robot-2014-1Michael Froomkin, Ian Kerr, and I, along with a wonderful program committee of law scholars and roboticists, have for three years now put on a conference around law, policy, and robotics.  “We Robot” returns to the University of Miami School of Law from Stanford Law School this year and boasts an extraordinary roster of authors, commentators, and participants.  Folks like Jack Balkin, Ann Bartow, Kenneth Anderson, Woodrow Hartzog, Mary Anne Franks, Margot Kaminski, Kate Darling, and David Post, among many others.  Not to mention a demo from a roboticist at the University of Washington whose lab built the surgical robot for the movie Ender’s Game.

I’ve discovered that academics in other disciplines habitually list the acceptance rate of papers.  We Robot III accepted only twenty-five percent of the papers under submission, which compares favorably with the strongest and longest-running conferences in computer science, electrical engineering, and human-computer interaction.  Indeed, judging by the abstracts at least, the papers this year are very exciting, taking on difficult and timely issues from a range of perspectives.

On behalf of our community I invite you to register for and attend We Robot, April 4-5, 2014, in Coral Cables, Florida.  I also hope those who enjoyed We Robot I and II will chime in below, if inclined!  Thank you,

The We Robot III Planning Committee

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UCLA Law Review Vol. 61, Issue 3

Volume 61, Issue 3 (February 2014)
Articles

How to Feel Like a Woman, or Why Punishment Is a Drag Mary Anne Franks 566
Free: Accounting for the Costs of the Internet’s Most Popular Price Chris Jay Hoofnagle & Jan Whittington 606
The Case for Tailoring Patent Awards Based on Time-to-Market Benjamin N. Roin 672

 

Comments

Here Comes the Sun: How Securities Regulations Cast a Shadow on the Growth of Community Solar in the United States Samantha Booth 760
Restoration Remedies for Remaining Residents David Kane 812

 

 

 

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Board Games and Intellectual Property

120px-Monopoly_game_logo.svgI just finished teaching from The Knockoff Economy in my Law and Technology Seminar.  The book, as I’m sure many of you know. describes thriving creative fields where copyrights and patents are either unavailable or play no meaningful role.  Examples include:  (1) fashion, (2) cooking; (3) team sports; (4) databases; (5) tattoos; (6) hairstyles; (7) fonts; and (8) magic tricks.

One industry that the book does does not discuss but that does fit this paradigm involves board games.  The rules of a board game are not copyrightable, and getting a patent on a game nowadays is almost impossible.  The name of game can be trademarked and aspects of the game’s appearance might qualify as trade dress, but that is all that the inventor or owner of the game can rely upon.

The board game business, though, seems to be doing just fine.  Entry barriers are low, of course, which helps explain why a relatively open system can work.  There must be something else to this though.  Why are classic games like Monopoly, Scrabble, Clue, and Risk able to survive?  In other words, why do brand names or trade dress seem so crucial for games?