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Center for IP Understanding is started by leading IP execs to raise awareness, improve attitudes

The Center for Intellectual Property Understanding (CIPU), an independent, unaffiliated non-profit dedicated to increasing IP awareness and improving negative attitudes towards patents, copyrights and other rights, was launched in New York last week. 

As reported in IAM, Law 360, World IP Review and other publications, the non-profit Center for IP Understanding was founded to address the uncertainty among audiences regarding patents, trademarks, copyrights and trade secrets — especially who do they benefit and their impact on new ideas and jobs.

“[The Centre’s] creation is in many ways a response to the battering that IP’s public image has taken over the last several years,” reported IAM blog, “particularly in the US. In that time a series of Supreme Court cipulogodecisions are widely seen to have undermined patent rights; the idea of efficient infringement has taken root; and the ‘patent troll’ narrative has gained wider traction in many parts the media.”

Outreach

Executives and advisors involved in CIPU on the board of directors or as informal advisors include Marshall Phelps (Microsoft, IBM, retired), Brian Hinman (Philips, active), Keith Bergelt (Open Invention Network, CEO), Harry Gwinnell (Cargill, Eastman Chemical, retired), and trade secret expert James Pooley (Orrick).

Also helpful in getting CIPU underway were Judge Paul Michel (Court of Appeals for the Federal Circuit, retire), David Kappos (Commissioner of the USPTO, retired) and film producer and author Irv Rappaport, former chief patent counsel at Apple and Medtronic, who has generated more than 20 patents, and Jonathan Taplin, a film producer, author and Director Emeritus of the Annenberg Innovation Lab a the University of Southern California’s Annenberg School for Communication and Journalism.

Among the CIPU’s goals for 2017 are a survey of IP awareness and attitudes among the general public and business owners; a research report on trends in media coverage of patent disputes; and a possible joint conference with Duke University on Innovation Policy.

The Center for IP Understanding also plans to provide outreach to educators, parents and business that help to facilitate better IP behavior.

Cultural Shift

“We have entered the ‘free-information’ era, where online content and patented inventions are readily pocketed by those who would never dream of shoplifting,” said Bruce Berman, CIPU Chairman, and CEO of Brody Berman Associates. “Products like music, books, novel designs, inventions and counterfeit goods appear to be there for the taking – or feel as if they should be. Uncertainty about what IP rights cover and their appropriate use compound the problem. CIPU will address these and other issues.”

“IP confusion is costly for consumers and businesses alike,” said Vice-Chairman Marshall Phelps, who is a member of the IP Hall of Fame. “Free-riders – unauthorized users of IP-protected products and works – come in many shapes and sizes. They impact performance and investment, as well as job creation. IP awareness and acceptable behaviors are too important to be left to audiences to decide on their own.”

For the IAM story go here.

For the Law 360 article go here.

For the full launch announcement go here.

For more information about the Center for IP Understanding, please visit www.UnderstandingIP.org. 

Image source: The Center for IP Understanding

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InterDigital leads PIPX public IP stock index to a 44.9% gain for 2016

The PIPX public IP licensing company stock index soared to a 44.9% increase in 2016, led by an impressive 86.3% move for InterDigital.

With a market capital in excess of $3 billion, InterDigtal (IDCC) led the value weighted PIPX with another stellar performance.  Poor performers for the year included Neonode (-27.3%, NEON), ParkerVision (-20.0%, PRKR) and VirnetX (-14.4%, VHC), who made less of a dent in overall PIPX performance because of their lack of market value. The S&P 500 stock index for the year was up 9.5%, a significant portion in the 4Q following November’s presidential election.

“For Q4 the PIPX index was up 11.2% after a remarkable 20.4% in Q3,” noted Dr. Kevin Klein, Vice President and GM of Products and Licensing at VORAGO Technologies, who compiled the IP stock performance data for IP CloseUp. “Pendrell underwent a reverse 1:10 split during Q4, as have several other of the smaller companies in the index, another example of the their shrinking share price and market capitalization.”

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The imminent departure of President Obama, an advocate of weaker patents, and the election of Donald Trump, a strong supporter of proprietary content and brand, also may have had something to do with strong 4Q performance for the PIPX.

Despite the over all gains for year and quarter, Marathon (MARA) and ParkerVision were down 38.8% and 56.3% respectively in the 4Q, and were up 7.5% and down 20.0% for the year. Litigation developments were likely influences.

For both the year and 4Q, performance for InterDigital Tessera (TSRA) and Acacia (ACTG) accounted for all the PIPX gain and offset some of the losses from the smaller component companies.

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“InterDigital, Tessera, and Rambus (RMBS) continue to drive the recent growth in the index and make up an ever-increasing share of the index,” stated Dr. Klein. “These three companies accounted for 37% of the total value of the index at the inception in 2011, today they make up over 80% of the total value of the index. InterDigital alone now accounts for over 40%, up from 15% at inception.”

Change in value of PIPX component companies 2011-2016

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Five Years of Data

After more than five full years of tracking, the PIPX seems to be suggesting that a handful of strong IP licensing companies are getting stronger and the weaker (smaller) ones are becoming more volatile.

For the full 2016 and 4Q PIPX report, go here.

 Image source: PIPX IP Stock Index

 

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IP CloseUp visits were up 81% in 2016, breaking previous record

It was the second record-breaking year in a row for IP CloseUp readership, with 43,946 visits in 2016, an 81% increase from 24,273 in 2015. The previous record increase was 31% in 2015, up from 2014.

The most popular51yeitvgpal post was “Kearns’ son still fuming over wiper blade suit,” with 21,652 views. Other popular posts included “For Samsung charity begins at home, Marshall, TX,” coming in with 5,464.

The Kearns article, detailing his 12-year patent suit with Ford and other auto companies, has generated 31,081 hits since it was originally posted in 2011.

Renewed interest in the Kearns biopic detailing the inventor’s patent suit, “Flash of Genius,” starring Greg Kinnear and Alan Alda, likely stimulated interest in the topic, as well as new obstacles to patent licensing.

 

Image source: amazon.com; hippajournal.com

 

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Inventor Kearns’ fight with Ford & other auto cos is 2016’s most read IP CloseUp post; 20,000+ visitors

An article summarizing inventor Robert Kearns’ epic battle against the automobile industry is this year’s most read IP CloseUp post with more than 21,000 visits.

The post summarizes the twelve-year patent suit mounted by Kearns, the inventor of the intermittent windshield wiper, against Ford and much of the automobile industry in the 1980s and 1990s, for stealing his invention.

“Kearns’ Son Still Fuming Over Wiper Blade Fight” generated 21,374 visits thus far in 2016, up from 6,928 in 2015. Total visits are over 30,000, which makes it the most read of almost 300 IPCU posts.

What about this story resonates with readers?

It could have something to do with the 2008 movie, Flash of Genius, that memorialized Kearns’ battle and depicted how it contributed to his mental breakdown and loss of his family.

Bittersweet Victory

Flash of Genius, starring Greg Kinnear as Robert Kearns and Alan Alda, as Gregory Lawson, his ambiguous attorney, opened to mixed but generally positive reviews (59% Tomato Meter; 55% Audience Score). It had a $20 million budget but grossed just $4.8 million at the box office. (Alda, of M*A*S*H fame, BTW, is a champion of understanding science 51yeitvgpaland innovation, and founded the Alan Alda Center for Communicating Science at Stony Brook University.)

The movie has many fans. I suspect that when it it is streamed or runs on a movie channel curious viewers run to Google hopeful of learning more about the enigmatic Kearns and his dispute with auto giants. It pitted him as David to their Goliath. (Thanksgiving weekend alone, which is prime movie-watching time, there were more than 1,500 visits to the post on IPCU.)

Even though Kearns eventually won significant awards, $10.2 million from Ford, and a total of $30 million from Chrysler, it is easy to believe that the struggle, which cost him his family and affected his sanity, may not have been worth it.

Apparently, no one thought so except Kearns, a college professor, former cryptographer in WWII and officer at a U.S. agency that was the forerunner of the CIA. (See the link to his obituary on the original IP CloseUp post, above.)

High Search Ranking

The Kearns’ post’s popularity probably also has something to do with its high Google search ranking under Kearns’ iconic name. It’s the second item after a rather tepid Wikipedia entry.

Supporters of the film include Peter Travers, long-time film critic for Rolling Stone. He gave it three out of four stars, saying “Kinnear takes the star spot in Flash of Genius and rides it to glory… Kearns wasn’t a movie hero. His halting courtroom delivery lacked Hollywood histrionics. Kinnear plays him with blunt honesty, sagging under the weight of stress but maintaining a bulldog tenacity that would win the day. Was the battle worth it? Kearns’ conflict is readable in Kinnear’s every word and gesture. His performance is worth cheering”.

Stephen Holden of The New York Times called the film “a meticulously constructed mechanism, one that wants to convey the same mixture of idealism, obsession and paranoia found in whistle-blower movies like Silkwood and The Insider,” thought it “has the tone and texture of a well-made but forgettable television movie”.

Lead actor Greg Kinnear, who in the lead role is more likable than Kearns was, won the Boston Film Festival Best Actor Award for his portrayal.

kearns-familyThe Kearns story strikes a chord deep in everyone. It is a quintessentially American tale of the forward-thinking little guy against diverse array of nay-sayers, his family included. Kearns’ sincerity as an engineer who craved recognition for his work more than his financial security is not lost on audiences, who see Flash of Genius, weaknesses aside, as an emotional and somewhat cautionary tale that is difficult to forget.

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Whether it was ego, anger, greed, or a combination, that ultimately motivated Kearns to go as far as he did for as long, the inventor’s greatest accomplishment may not be the valuable device he created, which no doubt helped save lives, but his perseverance and drive to prove that it was stolen from him.

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Whether or not Kearns was selfish or unbalanced, patent holders have benefited from his trail-blazing determination and refusal to take settlement money when he needed it most.

Stacked Deck

The environment for inventors and innovative small businesses today who wish to license their rights is not much different from when Kearns fought his epic battles. In fact, the obstacles may be worse.

With “efficient” patent infringement the preferred strategy of many the leading technology companies today, and higher validity and patentability hurdles established by the Patent Trial and Appeal board and the courts, the deck continues to be stacked against IP holders – even those with the capital, time and patent quality to succeed.

[Note: A company that employs “efficient” infringement believes that it is highly unlikely it will be caught using an invention it is not entitled to, and if it does, it is unlikely that it will have to pay much. For them, choosing not to take a license unless forced to by the courts is in their view a prudent business decision, ethics aside.]

Flash of Genius is available from Amazon, iTunes and other sources, to stream, rent or buy. Recently, it became available to Netflix subscribers for free. The official movie trailer can be seen here.

For those interested in the topic of Kearns and independent inventing, the long and thoughtful 1993 New Yorker magazine article by John Seabrook on which the movie is based is not to be missed. It is available for free by going here.

To read the original Kearns post on IP CloseUp, go here.

Image source: allesantiago.wordpress.com; amazon.com

 

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Trump Jr.’s op-ed reveals a solid understanding of patent licensing

Donald J. Trump, Jr.’s editorial in the The Daily Caller in 2012, a conservative leaning publication that generates more than 16 million monthly visits, indicates that he has had significant experience with patents and disputes, and has a good understanding of the difference between legitimate IP holders and those attempting to game the system.

In Defending Innovatdonald-trump-jr-2ion in America,” young Mr. Trump berates tech companies that infringe software patents.

“What’s lost in the rush is that many of the software breakthroughs that underpin these apps were created years before the boom, when only a handful of companies could see the code’s revolutionary potential.

“Now, bigger companies are scrambling to catch up, and in their anxiousness they are missing or ignoring the origins of the fundamental components that make their apps possible. The violations can quickly spiral out of control, as companies race to copy each other without realizing that their competitor’s app is itself derived from software created by an original patent holder.

“Such runaway proliferation makes it even harder for small patent holders to keep their grip on the rights and returns they deserve.”

Not all Licensers are Trolls

There is a bit of confusion early in the piece as the young Mr. Trump attempts to separate patent abusers from businesses that wish to license truly innovative inventions.

Not everyone agrees that the company in question, MacroSolve, has the patent quality it claims to. TechCruch wrote that in 2014 in the company’s suit against self-described troll-killer Newegg, the company was forced to “fold like a cheap suit.”

Kudos for Recognizing

Kudos to the Donald Jr. for recognizing (in 2012) the difference between IP bulogo_200siness models and between good patents and bad – even if the system frequently does not.

In an article in The American Lawyer on December 13 it reported that “Peter Harter, a consultant and lobbyist on IP issues with The Farrington Group, has noted that Donald Trump Jr. and Trump’s national security adviser, Michael Flynn, have held positions with IP enforcement company Drone Aviation Holding Corp., formerly known as MacroSolve Inc.”

Drone Aviation Holding Corp. (DRNE) trades on the Other OTC exchange. Its website says that the company develops tethered drones and focuses on global agencies and organizations in the commercial, military, research and law enforcement sectors. Customers include the US Army, US Marines, US Navy, US EPA, NREL, Kingdom of Saudi Arabia, Ecuadorian Air Force, many US research universities and US law enforcement agencies.

DAHC is based is Jacksonville, FL. It’s website can be found here.

Image source: redchip.com; businessinsider.com

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Gov’t study of economic impact of patent infringement is needed ASAP, experts say

There are abundant statistics on the cost of counterfeit goods, copyright infringement and even the negative impact of patent “trolls,” but nothing on the estimated extent of U.S. patent infringement and the cost in lost jobs, failed businesses and unpaid taxes. 

Global trade in counterfeits or fake goods, such as fashion, automobile parts and pharmaceuticals, has reached $600 billion annually, or about 5%-7% of GDP.  

The U.S. economy alone loses $58 billion each year to copyright infringement (2011 estimate) — crimes that affect creative works. That includes $16 billion in the loss of revenue to copyright owners and $3 billion in lost tax revenue.

The Recording Industry Association of America (RIAA) reports that the U.S. economy loses $12.5 billion in total output annually as a consequence of music theft and that sound recording piracy leads to the loss of 71,060 U.S. jobs, as well as losses in tax income.

Statistics on the cost of counterfeits and copyright infringement are conducted fairly regularly. There is even biased research on the cost of non-practicing entities. (Claims of $29 billion in damage from “trolls” are wildly inflammatory, says a former USPTO commissioner, which despite having been debunked are still cited by academics and reporters.)

Surprisingly, there are no estimates of the extent of patent infringement in the U.S., and the cost in lost jobs, failed businesses, unpaid taxes and other economic impact.

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“There have been no studies that I am aware of devoted to quantifying the amount of patent infringement in the United States,” said Gene Quinn, patent attorney and publisher of IP Watchdog told IP CloseUp.

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“”It would be extremely helpful to get some kind of quantification of the amount of harm that befalls innovators through the concerted and calculated ‘efficient’ infrdataingement business practices of those who use technology and simply refuse to pay for their ongoing, and frequently willful, patent infringement.”

Tip of the Iceberg?

Patent damages paid may be the tip of the infringement iceberg. The real damage may be below the waterline.

To provide some context, 15 leading technology companies paid patent litigation damages of more than $4 billion over as 12-year period from 1996-2008.

That’s just a little over a dozen companies who had to pay damages. The figure presumably does not include settlements, licenses, and all of the times they and thousands of other businesses paid nothing for the inventions that they used.

The Impact of Undetected Infringement 

  • Today, with more issued U.S. patents, and much greater difficulty securing a license or winning a patent law suit, the amount of patent infringement that actually takes place but remains unidentified could exceed a trillion dollars.
  • There is no known government, academic or privately commissioned study of the extent of patent infringement in the U.S., and the cost in lost jobs, failed businesses and economic loss.

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“It is not enough just to be aware that there is harm caused by undetected patent infringement,” said Paul R. Michel, Chief Judge of the Court of Appeals for the Federal Circuit (ret.). “The government needs to conduct a proper empirical study ASAP to determine its scope and impact.”

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Image source: ltrdigitalgroup.com

 

 

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Attorney-investor is willing to share patent filing costs & risks with clients

Many law firms still seek to participate in the outcome of clients’ patent litigation, but few are willing to share the cost of obtaining and maintaining invention rights, which frequently turn out to be worthless. 

A new book by an innovative Colorado attorney and inventor suggests that patent lawyers need to have more skin in the prosecution game, and that filing patents just to have them is a waste of their client’s time and money.

Russ Krajec, author of Investing in Patents: Everything Startup Investors Need to Know About Patents, says that the high cost of obtaining, maintaining and defending patents is prohibitive for most young companies. But without patents they can undermine their future, the value of their enterprise, and the fate of their investors.

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Recent studies indicate that 30 percent of U.S. “unicorns” (start-ups with greater than $1B in valuation) have no patents and 62 percent have fewer than 10 patents.
(David Kappos, et al. the New York Law Journal)

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In the January issue of IAM magazine, available this week, you will find my Intangible Investor review of Krajec’s deft book and industry-challenging strategy, “A strong case for a new approach to patent investing,” accessible to IAM subscribers, here.

Investing in Patents, deceptively spare at just 139-pages, is relevant to all patent filers, lawyers and investors, in addition to young companies, many of which are choosing to forgo patent protection. (See excerpt from The New York Law Journal article above.)

Patents are more expensive than ever, just over $56,000 for the average one over the course of its life. Defending them has reached new highs of cost and risk. A case through IPR(s) to trial can cost several million dollars and require more than five years, with a reduced likelihood of success.

Average Cost of a Patent Over its Life

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Engineer, Inventor, Financier

Investing in Patents is available at Krajec.com or on Amazon.com, here. In addition to being a patent attorney who has worked for H-P and other companies as a practicing engineer, Krajec has more than 40 patents to his name and, earlier in his career, was a USPTO patent examiner. He also runs BlueIron, LLC, an IP finance and management company.

While the sugg51l5ndgkvlestion of joint or fractional patent ownership is compelling, it is not entirely new or simple. As in most agreements, the devil is in the details.

It is unclear how Krajec believes ownership of a patent should be divided and who has the right to license, enforce, sell or otherwise leverage it – and when. Perhaps, most importantly, who gets to define success?

Given the current high-risk/low return scenario for obtaining and licensing patents most high-tech patents, this lawyer’s ownership alternative may be just what is needed to realign interests and enhance performance.

 

 

Image source: aipla.org; krajec.com

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IP Dealmakers’ event Nov. 17-18 will focus on new opportunities; IP CloseUp readers can save $200

IP Dealmakers Forum is one of the more anticipated IP events of the year, especially for those engaged in patent licensing, sales, and M&A transactions. It also of signficant interest to investors. 

This year‘s event will feature a new track, Dealmaker Deep Dives, a shorter, more targeted discussions with experts taking an in-depth perspective on a specific set of issues. Each session includes extended time at the end for Q&A so the audience can really take advantage of the speakers’ expertise.

IP CloseUp readers go here for a promo code that provides a $200 discount.

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Seizing Opportunities

“With the doom and gloom over patent licensing, the last couple of years we wanted to make sure the event was addressing the many new opportunities in the market,” said Forum director Wendy Chou, “In conversations with our board of advisers, past attendees and current IP holders, we were able to identify transaction areas that are being overlooked.”

Session titles include:

       – Seizing Opportunities to Invest in China’s Developing IP Market

       – Defining the IP Landscape in IoT: Strategy, Standards & Licensing

      – Trade Secrets — What IP Investors Need to Know

There also will be a panel on “efficient infringement,” a timely topic that grew out of attendee conversations during Q&A last year. The session is called:

Building a Better IP Market: Efficient Transactions vs. Efficient Infringement

  • A look at past attempts and business models
  • What does an efficient IP market look like?
  • Identifying challenges to progress

In terms of format, IP Dealmakers Forum (IPDF) has moved from all panel discussions to a mix of panels with patent holders, deal experts and investors taking an in-depth perspective. In 2016, as in past years, there is a strong lineup of speakers with a diverse mix of senior executives representing corporations, licensing companies, public and private market investors, law firms and other strategic advisors.

One-to-Ones

Face-to-face meetings continue to be a highly utilized aspect of the event, where attendees can schedule 30 minute sessions with one or more other attendees at any time during the event. A total of more than 425 meetings were scheduled over the past two IPDF, and the producers expect an even better response in 2016.

The IP Dealmakers Forum is organized by The IP Investment Institute, LLC and its partners Wendy Chou and Eric Salvarezza.

For the full IPDF agenda, go here.

To register, go here. There are still some remaining seats.

IP Marketplace

The IP Dealmakers Forum explores the challenges and opportunities in the changing IP marketplace. Lack of IP transaction data, information, and transparency pose serious challenges to market efficiency. However, they can create opportunities for investors who know how to leverage news, manage risks and connect with the right players.

IPDF attracts senior IP market participants from the finance, legal and business communities.

Image source: ipdealmakersforum.com

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Can small businesses afford weaker U.S. patents?

Can businesses and entrepreneurs compete with weaker U.S. patents in an innovation-driven global economy?

An event featuring a broad range of IP thought-leaders on October 26 in Silicon Valley will attempt to find out.

“Entrepreneurship, Innovation and Patenting in the U.S. – Implications for the future of U.S. Competitiveness” is the topic of a presentation and networking session being held at H-P World Headquarters in Palo Alto on Wednesday October 26 at from 6:00 to 8:imgres30.

The event is open to the public and limited seating is available on a first come basis. There is a $40 charge to cover food and refreshments.

Speakers include Professor Carl J. Schramm, The Hon. Judge Randall Rader (Ret.) David J. Kappos, former USPTO Commissioner and former head of intellectual property at IBM, and Professor Adam Mossoff of George Mason University School of Law where he co-founded the Center for the Protection of Intellectual Property. Robert Aronoff is the organizer. The International IP Commercialization Center is the sponsor.

For the full list of speakers go here. To register go here.

Image source:iipcc.org

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Post-election “Patent Law & Policy” conference to be held in Washington

Many businesses are wondering what the patent terrain will look like after the U.S. elections in November.

Will further reforms will be forthcoming, or will there be a move toward stronger patents and greater certainty?

On November 15, the Tuesday following election day, at Washington DC’s Reagan Conference Center, those attending the 2016 Patent Law and Policy will be in a better position to find out.

Capitol Building in Washington DC USASpeakers assembled for this year’s IAM Patent Law and Policy conference will include senior government officials, members of the judiciary, corporate patent leaders, private practitioners and investors, who will discuss how court decisions and legislation are affecting US patent values and strategies.

The keynote speaker is US Patent and Trademark Office Director Michelle Lee. Other speakers include the chief judge of the Patent Trial and Appeal Board, David Ruschke, ex-USPTO Director David Kappos, and former Federal Circuit Chief Judge Paul Michel.

Also participating as speakers or panelists will be senior representatives from companies closely involved in the ongoing patent reform debate, including: GoogleQualcomm, Johnson & Johnson, Bristol-Myers Squibb and IBM. Lead counsel in two of the pivotal Supreme Court patent cases of the last decade, KSR v Teleflex and Cuozzo v Lee. Also present will be as several high-profile patent investors.

IP CloseUp readers are able to receive $100 off the $895 fee if they use the discount code PLAP100 (offer valid until October 7 2016).

For the complete program and speakers, go here. For registration go here.

Image source: ipo.org; ipwatchdog.com

 

 

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No Monkey Business: Animal selfie raises serious questions about copyright ownership

Who is the legitimate owner of a selfie taken by a monkey, but positioned by a nature photographer? Is it the intellectual property of the animal or the photog?

A novel law suit filed recently by PETA (People for Ethical Treatment of Animals), the animal rights advocates, asserts that a macaque monkey, Naruto, should be declared the author of a selfie, not the photographer, David Slater, who set up the shot and had included it in a book. The suit demands that the monkey receive any proceeds generated by a now-famous 2011 photograph.

PETA is seeking a court order, through a suit filed in federal district court in San Francisco, to allow it to administer all proceeds from the photos for the benefit of the six-year-old Naruto, and other crested macaques living in a reserve on the Indonesian island of Sulawesi.

The photos were taken during a 2011 trip to Sulawesi by British nature photographer Slater. Through San Francisco-based self-publishing company Blurb, reports The Daily Mail, he has published a book called Wildlife Personalities that includes the ‘monkey selfie’ photos.

However, the photos have been widely distributed elsewhere by outlets, including Wikipedia, reports the _85730600_monkey2
news outlet, “which contend that no one owns the copyright to the images because they were taken by an animal, not a person.” 

Monkey See

“‘The facts are that I was the intellect behind the photos, I set the whole thing up,'” Slater said in an email. “‘A monkey only pressed a button of a camera set up on a tripod – a tripod I positioned and held throughout the shoot.’

“‘I sincerely wish my 5-year-old daughter to be able to be proud of her father and inherit my copyrights so that she can make my work into an asset and inheritance and go to university. ‘I have very little else to offer her.'”

Last year, the US Copyright Office issued an updated compendium of its policies, including a section stipulating that it would register copyrights only for works produced by human beings.

It specified that works produced by animals, whether a photo taken by a monkey or a mural painted by an elephant, would not qualify.

Not Species-Specific

However, Jeffrey Kerr, a lawyer with PETA, said the copyright office policy ‘is only an opinion,’ and the US Copyright Act itself does not contain language limiting copyrights to humans.

‘The act grants copyright to authors of original works, with no limit on species,’ Kerr said. ‘Copyright law is clear: It’s not the person who owns the camera, it’s the being who took the photograph.’

If the court rules in Naruto’s favor, reports Quartz, PETA would manage the copyright of the photos on behalf of Naruto and license them for commercial use. “All royalties earned from these pictures would be specifically used for Naruto’s benefit and that of his extended family, who are being impacted by encroaching human development.” PETA is not asking for any compensation.

Animals can be the authors of valuable works of art, and there is a market for art created by animals. In fact, many zoos raise money by selling paintings created by the animals—just recently, the Lincoln Children’s Zoo in Nebraska sold 116 pieces of art in its semi-annual Animal Art event.

Survival of the Fittest

Now, if we can just treat inventors regarding their IP rights as fairly as PETA wishes to treat monkeys, their (inventors’) survival would be less in doubt.    

 

Image source: dailymail.co.uk, via AP; photo credit: Naruto 

 

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Raymond P. Niro, pioneering patent litigator, is dead at 73

Raymond Niro, a highly successful patent litigator who represented primarily inventors and other plaintiffs, passed away on August 9 at the age of 73.

It was reported that he was in ill-health and died of heart failure while vacationing in Italy.

IP Law 360 described him as a “pioneering intellectual property attorney and who often represented patent licensing companies and inventors in infringement disputes against larger corporations.”

“If I had to write my obituary – and I hope that I don’t have to do that very soon,” said Niro in May, “I’d say this is a guy who … dedicated his life to try to promote innovation and to help level the playing field for inventors who had to take on some of the big corporations.”

A chapter that Niro wrote for my 2006 book, Making Innovation Pay (Wiley), asks “Who Benefits from Patent Enforcement?” My introduction to the chapter is below. 

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Profile: Little Guys Like Him

“I don’t have to be liked by everyone, just respected,” Ray Niro once told a reporter.

The founder of Chicago litigation boutique Niro Scavone Haller & Niro has developed a reputation for representing independent inventors and smaller companies in patent lawsuits in which he has an equity stake. To his adversaries, he is often painted as a predator or “troll,” or, at least, representing them; to his clients, he is a white knight.

Niro is praised for giving independent inventors and small companies a voice and for helping them to level the playing field. In the high-stakes poker game that is called patent litigation, spending $10 million or more on a dispute that goes to trial is not uncommon. Needless to say, Niro, whose firm foots the bill for his time and costs, is selective about the cases he is willing to take on contingency.

His team conducts extensive due diligence, which he discusses in the following chapter. He accepts fewer than 20% of the cases his firm reviews. By any standard, Niro’s track record is impressive: more than $500 Niro_Raymondmillion won in jury and bench trials and in settlements in more than 200 patent cases over 20 years. His best-known cases include a $57 million jury verdict in a trade secret suit against a snowmobile manufacturer and its engine supplier, which was later increased to $75.5 million; a $48 million jury award against an ink manufacturer; and a $20 million patent infringement award against Square D Company.

In 1997, the National Law Journal named him “one of the ten best U.S. litigators,” and in 1999 it named him “one of the ten best trial lawyers in Illinois.” Contingency wins, where he might share 40% or more of the recoveries, have made Niro a wealthy man. He lives most of the time in Boca Raton, Florida, and has a home in Aspen, Colorado, which he built with former partner, Gerald Hosier, who is best known for generating more than $1 billion in damages and royalties on behalf of inventor Jerome Lemelson, a known patent submariner until a 1996 change in the patent law to 20 years’ exclusivity from filing effectively ended the loophole. (The Lemelson-MIT Program, endowed by the Lemelson Foundation, rewards unsung inventors. MIT describes Lemelson as “one of the world’s most prolific inventors.”)

Niro loves to go to trial. At 67 years old, the admitted sports fanatic remains fighting fit and lifts weights for 45 minutes four times a week and cycles in Aspen’s 8,000-foot altitude. He owns a Falcon 10 jet and at one time owned six Ferraris, including two 360 Spiders and a 575 Maranello. He has 10 grandchildren and million, which the trial judge later increased to $20 million. Calabrese died 19 days later. “Frank was grateful for what Ray Niro did for him,” said Kathleen Calabrese, the inventor’s widow.

“Ray was the only attorney we could find [who was] willing to take the case on contingency. He worked hard and never gave up on Frank.”

But not all of Niro’s has been married to the same woman for 41 years. The son of an immigrant bricklayer from Abruzzi, Italy, Niro grew up in Pittsburgh, where he says he learned to root for the underdog and still does.

Trained as a chemical engineer, Niro is still able to connect with juries and judges. “I learned early on that as a litigator you need to tell a story that juries and judges understand,” he told me. “You can’t talk down to anyone. I get great personal satisfaction from helping people to win cases that may not otherwise have been heard.”

Frank Calabrese was an underdog. A Waynesboro, Pennsylvania inventor, he claimed his invention, a patented data relay system, was stolen by Square D in the 1980s. He sued when he discovered that the company had been marketing a similar system and refused to pay him for it. In the four years it took for the case to go to trial, Calabrese developed colon cancer.

“Towards the end of the trial,” says Niro, “Frank, who was dying, told me ‘the money doesn’t matter. I want to be vindicated.’” And vindicated he was on January 26, 2000, when a jury awarded Calabrese $13.2  clients are defenseless little guys. Some are investors, like publicly traded Acacia Technology (NASDAQ: ACTG), which buys patents and asserts them because they understand some companies’ aversion to risk and low tolerance for the costs associated with complex patent litigation. To that Niro responds that while he prefers to work directly with inventors and small companies, middlemen can benefit the system and have the right to exist.

Niro’s chapter, “Who Benefits from Patent Enforcement?” discusses the importance of asserting patent rights not only for the less resourceful plaintiff but for society as a whole and for innovation. “When it comes to using patents for business advantage,” concludes the bearded litigator, “the little guy is not the one who is gaming the system, although many defendants would like you to think so.”

*****

Photo caption from book: It’s the high life for litigator, Ray Niro, who tools around in his Ferrari near Independence Pass (elevation 12,095 feet), not far from his Aspen home.

Those wishing to read Raymond Niro’s chapter in Making Innovation Pay can order here.

Image source: legalexecutiveinstitute.com

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