The recording industry has scored gold in its court battle with Usenet, which advertises itself as a massive online file sharing community. See: Arista Records v. Usenet, 07 Civ. 8822 (S.D.N.Y. June 30, 2009) The case, filed back in 2007, pitted the record companies against Usenet, with the recording industry alleging widespread infringement of copyrighted recordings through downloading over the Usenet network and Judge Harold Baer agreed, finding Usenet guilty of direct, contributory and vicarious copyright infringement.

It was not very easy this month to come up with good statistics relating to traffic to IPWatchdog.com.  In an effort to focus on business, I decided to try and move the site to a fully managed server.  The thought was if something went wrong it could be addressed immediately by those who do this sort of thing for a living.  As many probably noticed, for about 10 days roughly in the middle of June IPWatchdog.com experienced more problems than it did in the previous 12 months combined, so the experiment was not successful and I am back on a server I control and manage.  The more I am involved with “computer specialists” of various kinds I come to realize that my own skills are far beyond the skills of most computer folks, which is one reason I take such offense to those who claim I don’t understand computers or software if I think software should be patentable, but I digress.  In any event, after losing 7 full days of statistics, and having significantly reduced traffic for at least another 3 or 4 days due to “server problems,” I still have demonstrable unique visitors in excess of 40,000 and over 5,000,000 page views.  What would the stats have been without this interuption?  It would have been a blow-your-socks-off month for IPWatchdog.com!

I have long since lost hope that those who are truly anti-patent and anti-software zealots will ever come to accept that software should be patentable. For reasons that are beyond me they will not even admit that software can be patented. Talking to such a lunatic fringe is hardly worth the time it takes, or the adjida it causes, and seems to approximate a real life Monty Python sketch where the people who claim to have the far superior intellect have such narrow minds that even in the face of overwhelming proof they cling to the irrational and simply incorrect view that software is in fact math and everyone knows math isn’t patentable. Yes, the lunacy is high, very high indeed. So high that the only reason worth continuing to write articles like this is to hopefully prevent the overall anti-patent and anti-invention hysteria that seems to be gaining steam. But the real goal is to try and make sure that any policy makers, decision makers and even those who wear black robes and work at that hallowed place on the corner of First Street, NE and East Capitol Street understand that the steam engine of the 21st century is software, and software must be patentable!

By now you should have all heard about Michael Jackson’s death. Although it is tragic that such a pop icon could die at such a young age, so much of the news coverage seems to be focusing on the bizarre aspects of Michael Jackson’s life, what appears to be a serious drug addiction and his financial debts.  When Michael passed last week, he died in debt to the tune of approximately $500 million, at least if the reports we are hearing turn out to be accurate. What seems to have started Michael’s financial decline was when in 1993, he paid the family of 13 year old Jordy Chandler, $22 million dollars to settle the lawsuit they had pending against him.  From that point forward he was not really viewed the same, his last album was a failure and yet his taste for expensive things and his ability to spend became legendary.  But did you know that in 1985, Michael Jackson paid $47.5 million dollars to purchase and ATV Music Publishing, which happened to own the copyrights of more than 200 songs written by the Beatles’ John Lennon and Paul McCartney? While Michael Jackson will likely be remembered for many things, perhaps right now we should focus on what he did that made him the icon he was.  There will be plenty of time later for the sordid details, and the unsavory side of the pop legend, but there were aspects to Michael’s life that demonstrate him to be almost a Renaissance man; namely Michael the inventor, Michael the King of Pop and Michael the shrewd businessman who say the value of owning perhaps the most lucrative copyright portfolio of all time.

Phase 2 of the quest to find the top patent blogs is now complete.  Voting started on May 27, 2009, and ran through earlier today when I downloaded the vote totals.  In all there were 3,244 votes cast for Question 1, and 3.045 votes cast for Question 2, so I think we achieved a good representative showing.  I will combine the final vote totals together with the earlier objective phase results and announce the Top Patent Blogs on Monday, July 6, 2009.

Which of the following blogs is your favorite? Select only 1. (top 15)

Perhaps the single most beneficial piece of legislation that the United States Congress has enacted during my lifetime is the Bayh-Dole Act, codified in Chapter 18 of Title 35 of the United States Code, enacted in 1980 and named after co-sponsored Senators Birch Bayh of Indiana and Robert Dole of Kansas. Everyone who knows anything about patent law, technology transfer or research and development at Universities through the United States will tell you that Bayh-Dole has been a complete and total success, probably even a success beyond the wildest dreams of anyone. As a result, other countries are copying the legislation and trying to get it past in hopes of reaping the same benefits the US has received.  South Africa is considering adopting is own version of Bayh-Dole legislation, and India is also considering legislation that would lead to increased University patenting.  At the same time, here in the United States I cannot help but notice that increasingly Universities, or perhaps it is better to say researchers and professors at Universities, want their cake and eat it too.  They all seem to enjoy the benefits of Bayh-Dole, but increasingly there is louder and louder chatter that patents harm innovation, and particularly research.  This position is pure and utter nonsense, shows a complete misunderstanding of the patent laws, demonstrates a failure to appreciate history, and is more than a little bit hypocritical if you ask me.

Robert Plotkin, author of "The Genie in the Machine"

Critics of software patents often argue that software should not be patentable because software is too “abstract” to be patented. The patent system was created to protect nuts-and-bolts machines like the steam engine and the cotton gin, not “intangible” creations like software, so the argument goes. In this article I will argue that not only should software be patentable, but that inventions that are even more “abstract” should be patentable – inventions that I call “wishes” in my recent book, The Genie in the Machine: How Computer-Automated Inventing is Revolutionizing Law and Business.

Those familiar with the ongoing debate regarding the patentability of software and business methods know, the United States Supreme Court has decided to take up In re Bilski during its next term, which will start in October 2009.  In the meantime, what exactly do you do if you want to patent software or computer related inventions?  My firm has developed a specialty in handling these types of inventions, and we had success pre-Bilski, and we are having success post-Bilski.  As it turns out it might not be as difficult to obtain a patent on software or a computer related invention as was previously feared by some, including myself, in the immediate aftermath of the Bilski decision rendered by the United States Court of Appeals for the Federal Circuit.  Nevertheless, there are many attorneys who are advising clients that software is no longer patentable at all.   Recently I obtained a client who had been told that he did not have anything that could be patented thanks to the Bilski decision.  After we (Mark Malek and myself) looked at the invention we came to the same conclusion.  There is no single invention here that can be patented, rather there are about 8 to 12 different inventions that can be patented, depending upon how the patent examiner wants to issue restrictions.  The omnibus patent application we will soon be filing covers a really exciting innovation, will be the foundation of what could be a rather large portfolio and should be extremely lucrative for the client.

Back in March 2009, I traveled to North Carolina to the Everyday Edisons studio to participate in the United Inventors Association filming of a 10 part mini-series that covers every stage in the patent to market process.  The series is about 5 hours in length and covers every aspect from how not to get scammed, to patents, prototypes, packaging, marketing, licensing and selling your invention for profit on your own.  The full educational mini-series is available only to inventors who join the UIA, but episode 1, titled Avoiding Scams, Traps and Raw Deals, is available for free to everyone. Steve Greenberg, the author of Gadget Nation and Emmy winning news reporter, conducts an interview with myself, Ron Reardon (UIA President and the President of the National Association of Patent Practitioners) and Louis Foreman (of Everyday Edisons and Inventors Digest).

Until recently the Obama Administration had not taken any particularly strong or controversial stances with respect to intellectual property protection.  Sure, President Obama appointed a former RIAA attorney to a top spot in the Department of Justice, asked for study of open source initiatives for the federal government and has complained about counterfeiting and copyright infringement abroad.  On patent matters though the President and his Administration were relatively silent, perhaps even AWOL, until he finally announced that he would eventually be formally nominating David Kappos to become the Director of the Patent and Trademark Office.  Now this week Peter Orzag, the Director of the Office of Management and Budget, sent a letter to Congressman Waxman explaining the President’s position on the appropriate length of exclusive protection for pioneering biologics.  The biotech and pharmaceutical industry had been lobbying for 12 to 14 years of exclusivity, and President Obama favors roughly half that time frame, claiming that 7 years “strikes the appropriate balance between innovation and competition by providing for seven years of exclusivity.”  So the battle lines are being drawn, and this will in fact become the first patent battle for the Obama Administration.  Whether they get this right will impact the future of revolutionary medical advances.  If the exclusivity is too low there will be no incentive to undertake the extraordinarily risky endeavor associated with researching, developing, testing and commercializing pioneering biologics, which would mean the tremendous rate of scientific advances on treatments and cures for deadly diseases could slow to a standstill.