Tag Archives: Software and Technology

Intellectual Property Revolution – Book Launch – Video Highlights

The Intellectual Property Revolution, my second book, was launched with great success on 13 October 2015 at the Institute of Directors in London.

For those of you who were unable to attend the event the next best thing is to watch the videos of the night.

Daniel Priestley of Entrevo, who runs a global entrepreneurship accelerator programme known as Key Person of Influence (that I myself have attended) gave the introductions for the night.

He also took us through the ages pointing out that at one time it was ownership of land that enabled people to build fortunes, these people built themselves a reputation and became influential. Then after this agricultural age came the industrial revolution where people built their fortunes by owning the means of production. In the digital economy it is intellectual property that is the means to building fortunes. He said millennials would rather spend all their time and money to build start-ups than purchasing houses or land.

Next up was Will Critchlow of Distilled, CEO of a digital marketing agency based in London with offices in the USA. He reinforced the importance of using the right name and protecting intellectual property rights very early on, an issue he himself had encountered at the early stages of his business ventures while at school. Intellectual Property, in particular securing a trade mark helps provide businesses big or small with strong foundations to securely expand and build a reputation they establish. This will strengthen branding strategies becoming real investments rather than failing later on.

Then finally, I spoke about the importance of taking early IP advice in order to position yourself for maximum value if you succeed, and reduce the risk of disaster. When overlooked, IP can be damaging to the core features of any business. For example, a poor choice of name can be a real set back. This is something I discuss in more detail in my blog Intellectual Property Value – Do You Need Specialist Skills to Value IP?

IP is so important to any business, as the internet now dominates our daily lives, it is the ownership of these intangibles which is so necessary to protect. At Azrights, we offer a fixed price service that provides early stage businesses with comprehensive advice concerning Intellectual Property rights and strategic building of them.

There was a chance for guests to mingle over canapes and here are some vox pox and highlights of the event. The vox pox discussions give some insight into why attendees believe IP is so important in today’s society.

While the highlights below will give you a general flavour of the eventful evening.

Since the launch, I have revised the conclusion of the book, as this was a chapter I struggled to write last year. At the time, I wanted to finish the book so I used something. However, having had time to reflect over the festive period, I have changed the conclusion, and am now very happy that the book will be an easy, insightful read for businesses interested in IP.

The new conclusion fits much better with the book as a whole being a kind of synopsis of the book and summarises the transformative effects of Intellectual Property rights. If you don’t have time to read the whole book, you’d now get a strong indication of what the book is all about by reading just the conclusion and perhaps revisiting the book when time allows.

Attend Exploring IP Session

Is Copyright Worth More Than Patents? – Latest Development On Oracle v. Google

Oracle has demonstrated that copyright can be a highly valuable and strategic intellectual property asset worth more than some patents. In Shireen Smith’s earlier post ‘Are APIs Protected By Copyright? – Google v Oracle’ the far reaching implications of copyright in Java APIs owned by Oracle and used by Google in their Android operating software were discussed.

With an 80% presence in all smartphone, tablets, televisions, wearable and even cars, Android technology has ‘permeated’ society, of which Google sustains a considerable profit. It seems set that Oracle are planning to bring an action against Google as suggested by a letter from Oracle’s head counsel whom has requested approval to file a supplemental complaint. This time it will be to claim damages for continued use of Oracle’s Java APIs through the exploitation of new versions of Android.

Find out more on the FOSS patents blog which looks at the letter setting out the grounds for the complaint.

Are APIs Protected By Copyright? – Google v Oracle

In the Google v Oracle dispute, the Supreme Court rejected Google’s application to have the case reheard to determine whether Google made fair use of Oracle’s copyrighted APIs.

This dispute began in 2012, when Google, creator of the Android operating system for mobile telephones, made use of Oracle’s Application Programming Interface (API). Oracle created the Java programming language, and the question concerned whether the API is protected by copyright. If so, then Google was not free to make use of it without Oracle’s permission.

– What is API?

To appreciate the implications of the case, a basic understanding of APIs is necessary. Broadly speaking, an API is a language a programmer can use to talk to a system. It has a list of commands which can be issued to it.

For example, the API for a graphics application could include the commands “Draw a rectangle” and “Draw a circle”. Two different systems might have a different underlying mechanism for drawing a rectangle, for example, system A might draw a rectangle dot by dot starting from the top left corner, while system B might do it in four steps, drawing each side one line at a time.

Despite these underlying differences, if both systems A and B understand the same set of commands, such as “Draw a rectangle” command, then a piece of software written for system A will also run on system B.

– The dispute

Turning back to Google and Oracle, the Java APIs owned by Oracle are sets of commands, which can be understood by a whole host of different systems. The advantage being that there could be no need to write different versions of the same software for different platforms. So, the same app might run just as happily on your Mac as on your PC.

Google, when developing the Android operating system, built it to use the Java APIs. This meant that some existing software could function more easily on their new platform, and many developers were already familiar with Java so could get started writing software for Android without a steep learning curve. Although Java and Android accept the same instructions, the underlying code, by which they execute those instructions, is not the same.

Oracle argued that its Java API is protected by copyright, and that Google was not authorised to use it without permission. Google, on the other hand, argued that the Java APIs are simply a way to work with a system, and should not be protected by copyright.

– Court’s decision

The US courts initially sided with Google, finding that the Java APIs were not copyrightable. However, upon appeal a federal court overturned the earlier ruling, and said that the APIs were protected by copyright.

Now that Google’s request that the Supreme Court hear a further appeal has been rejected, it is firmly established that in the US APIs are copyrightable.

According to the Electronic Frontier Foundation, the latest ruling in favour of Oracle gives tech firms “unprecedented and dangerous power” over developers by making it substantially more difficult for upstarts to create new software.

However, according to @FOSSpatents, the Supreme Court is right to reject Google’s application, on the basis that there is nothing so special about the subject that Google’s petition for writ of certiorari (request for Supreme Court review) in Oracle’s Android-Java copyright case should be granted.

The legal position on this side of the Atlantic, however, is not the same.

Position under EU law

In SAS Institute and World Programming (WPL), the ECJ held that the functionality of a piece of software, or the programming language it uses, is not protected by copyright. According to Ars Technica, the case decided that APIs are not eligible for copyright protection because this would ‘monopolise ideas’

However, the cases covered quite different issues. Functionality and programming language are not the same as an API. Android and Java are different programming languages but use the same APIs.

When Google initially wanted to use Java, they were unable to do a deal with Sun because they didn’t want to pay licence fees. So, they decided to write their own language and base it on Java. To do so they lifted Oracle’s APl. They didn’t merely look at it in order to create their own version without any direct copying. They used the API itself, and yet made Android incompatible with Java. By not making Android interoperable, they cut out one of the defences that might otherwise have been available to them.

On the basis that we are not comparing like with like when looking at these two cases it would be interesting to having a ruling from the EU on the same facts. In the meantime, given that most APIs that people might want to use are US based, in practice the US ruling is the one that people would need to heed if they wanted to use an API.

Intellectual Property & Food Photography – 3 Steps To Innovation

We all have something to say when it comes to food but the real question is what are you doing with it? Other than eating it of course, the movers and shakers of the digital age have found innovative ways to give you more than just a culinary experience.

Recently we wrote about ‘Is Posting Photos On Twitter A Breach Of Chef’s IP?‘ where we explored the relatively new phenomenon of taking pictures of the food we eat while at restaurants. Albeit commonplace, many restaurants, particularly some chefs, have seen this as an appropriation of their intellectual property.

1. Identify your intellectual property and where its value lies

In our post ‘Is Posting Photos On Twitter A Breach Of Chef’s IP?‘ we looked at what intellectual property elements are involved in making and preparing food, as well as taking photos of it. We concluded that intellectual property will not protect your meal because of the underlying element of fixation that is required in order to be able to define what it is you are trying to protect. You can’t eat someone’s copyright nor would you expect to eat their trade mark, as Lord Justice Jacob expressed in his ruling referring to Bongrain’s cheese trade mark application.

Sombre news as it may be for some, others in the industry have taken advantage of the phenomenon, embracing innovation and turning it into profitable opportunities.

2. Don’t do what everyone else is doing, take advantage of what it is they are doing!

In the last couple of months we’ve stumbled across some truly innovative ideas. Israeli based winery ‘Carmel Winery’ have come up with an interesting take of photographing your food with a viewing to uploading it onto social media. It is called: Foodography, and it is a project born by the “art of food image capture using a smartphone”. In essence, it involves a series of specially designed plates which (are protectable through Design law) allow you to take the most artistic image of your meal possible using your smartphone, see the how it works here.

Those of a more traditional disposition may see this concept as completely bizarre, however, it is more than just a mere gimmick. A recent article in business insider reveals that some chefs are embracing this digital phenomenon, also known as #Foodporn, and using it to their advantage. A good food shot can result in increased publicity and bookings for the restaurant. Certainly those restaurants equipped with specially designed plates that turn every amateur using their phone into a professional food photographer, and critic, wield a lot of commercial power.

3. Go the extra mile

The trail doesn’t stop there, however. A new app developed by Google can now count the number of calories in your food through your Instagram photos. Im2Calories incorporates artificial intelligence which uses algorithms to estimate the number of calories in your food photos. Unlike the food you eat, this software is protectable by copyright and patent legislation. The real challenge is how big can you stretch your idea?

One thing is certain, the #Foodporn revolution is real and companies are commercialising it. The key is to understand where the value of your idea lies. Chances are that your winning recipe will only be half the ticket. Your appetite for innovation on the other hand extends the commercial opportunity beyond mere gustatory and olfactory senses.

World IP Day 2015: A Change In The Tide For Music?

On 26 April, World Intellectual Property Day… celebrate[d] music with the aim of promoting discussion of the role of IP in encouraging innovation and creativity.

As a part of this, there [were] …discussions across the globe exploring some of the challenges and subsequent changes shaping the music industry today.

A key change in the music industry

One of the key changes in recent years has been the way that we can access music. Streaming has becoming one of the most popular ways to access music with 60 million users signed up to industry leader Spotify.

However, many artists didn’t feel that letting the general public listen to their music for free was fair on the artist. With this in mind, last month, American rapper and producer, Jay Z, launched a rival platform called ‘Tidal’ – with the view that through this service (with no ‘free’ option), artists would be paid for their work. At $20-per-month, Tidal promises exclusive content and videos that other streaming services will not have access to. Artists, such as Rihanna, Usher, Madonna and Beyonce have all aligned themselves to Tidal, with Jay-Z saying the platform was going to ‘forever change the course of music history’, ‘allowing art to flourish’.

To read more about the impact of Tidal on the intellectual property debate within the music industry please visit: http://www.shoosmiths.co.uk/client-resources/legal-updates/world-intellectual-property-day-change-for-music-9654.aspx

Facebook’s Mark Zuckerberg Bites Back In Internet.org India Row

Zuckerberg reportedly argued in a blog post that Internet.org’s basic free services were not incompatible with net neutrality – the principle that all web services should be equally accessible. “We fully support net neutrality,” he wrote. “Universal connectivity and net neutrality can and must co-exist.” But critics were quick to respond. Writing in the Hindustan Times, India’s Save The Internet coalition maintained that Internet.org is “Zuckerberg’s ambitious project to confuse hundreds of millions of emerging market users into thinking that Facebook and the internet are one and the same.”

Distorting competition?

At the heart of the row is Internet.org’s policy of “zero-rating”, whereby telecoms providers agree not to pass on the costs of handling the data traffic so that consumers can receive services for free. Critics argue this has a distorting effect on competition, making it difficult for publishers not signed up to Internet.org to reach the hundreds of millions of poorer people in developing economies who have no internet access at all.

Read the full story, reported by the BBC: http://www.bbc.co.uk/news/technology-32349480

The Rise Of Artificial Intelligence And Changing Intellectual Property Standards

Two days ago in an interview with the Australian Financial Review, Apple co-founder, Steve Wozniak joined the ever growing list of science and technology billionaires who are concerned about the development of artificial intelligence (AI). In particular there is concern about what role humans will play in the future, once it is possible for AI to surpass us. In the interview, Wozniak said “if we build these devices to take care of everything for us, eventually they’ll think faster than us and they’ll get rid of the slow humans to run companies more efficiently.” In making this comment about the rise of AI Wozniak is in good company as he echoed the sentiments of both Dr. Stephen Hawking, Bill Gates and Elon Musk, founder of PayPal and Tesla. Wozniak was clear that even though it seems likely that the aforementioned will happen, that this should not dissuade innovation in the field of artificial intelligence.

With comments such as these, it begs the question ‘What will the impact of AI be on intellectual property law?’ Eran Kahana, in his article Intellectual Property Infringement by AI Applications delves into this is greater depth.

Kahana outlines the various levels of AI apps and highlights that only the more advanced apps, such as Level D, which “manifest[] intelligence levels so sophisticated that it can identify and reprogram any portion of its behaviour”, could be problematic when it comes to enforcing IP rights. Kahana also notes that the current formulation of IP law, when it comes to infringement, presumes human involvement. The example Kahana provides is of a spider that has misused protected content leading to the developer or designer being subject to suit. It is argued that this strict liability standard is problematic given that the developer or designer could not have reasonably foreseen culpability where a Level D app has reprogrammed its own behaviours. An iterative liability standard is proposed whereby the developer is only responsible where it cannot be shown that the AI acted independently. Kahana does note that even this standard can be problematic once the AI learn to avoid detection.

To read more of Kahana’s article please visit: http://web.stanford.edu/dept/law/ipsc/PDF/Kahana,%20Eran%20-%20Abstract.pdf

Patent Troll Problems – The Good, The Bad, And The Ugly

A recent case, Smartflash LLC v. Apple Inc, which Apple described as a prime example of why the US patent system is flawed, saw the company ordered to pay over $532.9 million in damages.

Smartflash LLC, a Texas-based entity, sued Apple in May 2013 on the grounds that Apple had infringed 3 of its patents in their iTunes software. According to The New York Times, Smartflash alleged that Apple’s software infringed on Smartflash’s “patents related to access and storage of downloaded songs, videos and games.” The U.S. District Court for the District of Texas (Tyler) found Apple to have used Smartflash’s patents, and done so wilfully.

According to Bloomberg Apple issued a statement that the plaintiff does not create products, provide jobs and has a limited U.S. presence. So, Apple effectively sees Smartflash as a patent troll.

What is a patent troll?

Trolls are entities that do not make or sell anything but exist solely so as to exploit rights in patents that they often obtain from another company. They are disliked because they control essential facilities and make demands of those who use them.

The dividing line between being a patent troll, which has an expressly negative connotation, and an entity that enforces its patents as a legitimate business model, is that trolls do not manufacture products where the patent is used. So, the patent is not related to something inside its core competency.

The IPKat notes that this can be a difficult distinction to make as it is common within certain industries for companies to hold patents that are not directly related to a product that they produce.

Also, one way in which patent trolls arguably have a socially useful function is outlined by Steven Rubin, a New York Intellectual Property lawyer. He argues that cases initiated by patent trolls are part of a business model that results in creating an environment favourable to innovation. By licensing their patents to trolls, inventors are able to enlist the help of these entities to fight the bigger players like Microsoft in order to defend their patents.

According to Rubin, “most inventors barely have enough money to file for a patent application. Even if the inventor can afford to get the patent to grant, patent litigation is exorbitantly costly, frequently requiring millions of dollars to fund. Individual inventors, and even small or medium-sized companies, cannot afford such fees without another company to finance the litigation or at least to license or buy the patent…The inventor may never realise any benefit from his toils.”

Lodsys

On the other hand, an example of the negative impact a patent troll can have is illustrated by the activities of Lodsys who obtained a portfolio of patents from Intellectual Ventures, and began targeting small App developers a few years ago about patent infringement.

In 2011, Electronic Frontier Foundation reported on Lodsys’s claims against App developers. Even though the developers were often using technology which Apple or Google required them to use to develop Apps on the Apple or Android platforms, small developers were being targeted by Lodsys rather than Apple or Google. The Lodsys litigation was not ultimately successful for the patent troll. Nevertheless, it had a significant impact on the industry, and caused a lot of anxiety within the developer community.

Need for reform

A related problem that creates an unsatisfactory situation is the high damages awarded in patent cases. It means that patent litigation has a dampening effect on innovation, and this has led to demands in the USA to reform the patent system.

The challenges facing innovators under the current patent regime, and the broken nature of the patent system is discussed in the “Defend Innovation” whitepaper. This advocates measures for policymakers to fix the system.

Patent trolling while it exists in Europe, is far less prevalent than in the United States, possibly because in the UK there is a real disincentive to litigation as the losing party has to pay the costs of the other side

So as The National Law Review, points out it is not necessarily that the forum is more accepting of such cases in the United States, but that there are few ramifications for patent trolls who file a lawsuit and then are not successful in litigation. The general rule in the United States is that each party pays for their own litigation costs.

Approach to patenting

All this raises the question of what people’s purpose is in filing patents. Generally, people file patents for both offensive and defensive purposes.

Patents used offensively may result in licensing revenue and, sometimes, in damages awards from litigation, such as happens for “patent trolls”.

Most patents are used defensively or for portfolio padding.

Patents used defensively are aimed at making it less attractive for a competitor to sue. For example, if you infringe a competitor’s patents and they also infringe yours, litigation may be pointless as both sides would have to spend a large amount on legal fees and would achieve only a small sum, if anything by way of monetary damages

Patent padding is used for marketing purposes so a company can claim that it is more innovative than its competitors in a given market.

Conclusion

Reuters reports that despite the moves to reform this area over the past year, patent litigation is on the rise, and Apple failed in its attempt to have the case dismissed earlier in the year. It did its utmost to avoid litigation altogether by arguing that the plaintiff’s inventions were both too basic to be patented and that other patents, previously filed, exist and cover the same technology.

Smartflash had originally sought $852 million. Apple conceded that the damages calculation was flawed and that at best, $4.5 million should be paid, yet the jury decided that the appropriate damages award should be $532.9 million.

Copyright, emulation and software – is imitation not the sincerest form of flattery?

Software is essential to everyday life, it’s how we carry out research, get our entertainment fix, communicate with each other, manage information, carry out calculations, implement business processes and unleash our creativity. But what if the software you need is out of reach? Can you roll your own version of a tool sold by someone else? This is a difficult question to answer, because even the simplest software is a bundle of different elements, each of which might be protected by a variety of intellectual property rights, such as copyright, design protection, or patents. The concept of writing programs which replicate the functionality of existing software is commonly referred to as emulation. At a high level you can think of it as making sure that if the same information is input into an emulator, then it produces the same output as the software it emulates. A recent court case sheds light on the legality of this practice in the UK. The dispute between the SAS Institute and World Programming dates back to 2009, and arose when WP decided to develop their own version of SAS’ software. While copyright protects the underlying code behind software we use, in this case WP did not have access to the source code, they simply knew what went in and what came out of the software. The WP version would accept the same instructions as the SAS version, read the same file formats, and give the same outputs, but the source code was not copied. The question arising in court was whether copyright protects the set of instructions, or language, that a piece of software will accept – it’s functionality and interface with users, rather than its internals. Why is this important? Well, consider a situation where your business becomes reliant on a particular system, for example a piece of bookkeeping software. Over the years your staff will have become familiar with it, and you might have integrated it with other aspects of your business, such as with payroll, invoicing or tax calculation software. If it becomes unavailable, perhaps because the company that sells it goes out of business, or increases their prices, then you could find yourself with two options: retrain all of your staff to use a replacement, and rewrite your payroll, invoicing and other software to work with it; or create a replacement that can slot in to fill the gap. Clearly, the best approach depends on how important this particular software is to you. If it’s only used by one member of staff, and there’s a cheap alternative which is simple to learn then resolution is easy, but if there isn’t an alternative, or if it’s embedded into your processes and procedures, then rolling your own could be a far more attractive option. However, if copyright were to protect the way you use software, i.e. the set of instructions it accepts, this wouldn’t be an option. Although there were other questions involved, this is the issue raised in the SAS v WP dispute with the potential to have far reaching implications. The judge, the Honorable Mr Justice Arnold, answered most succinctly:

In short, copyright in a computer program does not protect either the programming language in which it is written or its interfaces (specifically, its data file formats) or its functionality from being copied.

So, at least for the moment, you are likely to be entitled to develop or commission programs which emulate the functionality of other piece of software, provided that you do not actually copy source code or other protected works which make up the original. Please do leave a comment if you think this is likely to affect you, or if you have any comments on the issue.

3D printing- the next challenge for IP?

3D printing is a technological advance that has been getting a lot of press recently due to the sense of excitement about the possibilities it might hold. The implications of this advance are being speculated as huge, with the BBC asking if it will spark a ‘new industrial revolution’, The Economist announcing the benefits for third world countries, and others hoping that it might soon have promising implications for the medical industry.

Although 3D printing has been accessible to engineers and designers for a number of years, it has recently become much more affordable to the general public due to a decrease in the cost of technology.

What exactly is 3D printing?

3D printing works much like 2D printing, but in this case it enables solid objects, which otherwise are limited to mass production, to be printed and produced on an individual basis through the use of computer-aided design. These printers work by building an object layer by very thin layer, and in this way building an entire object through stacking these multiple layers of material.

3D printers are designed to enable inventors to make ideas, which would otherwise never go beyond anything more than a concept, into something substantial. The labs could mean that the power of production is no longer limited to the big businesses, but rather could be passed into the hands of the consumers themselves.

Although currently 3D printing can only print objects using one type of material at a time and can only use certain types of material, such as plastic, the future of 3D printing is looking at being able to recreate electronical devices through printing multi-material components.

What will 3D printing mean for the law?

However, alongside any technological advance, a host of legal difficulties generally also tends to arise. So, with production made more easily accessible, what implications will this have on the law? And specifically how can intellectual property be protected?

Although the idea behind 3D printing is to enable people to make their own ideas into an actuality, if 3D printing does become the way of the future, designs produced by other companies and manufacturers can be used to print certain items, and there is also the fear that in some cases they might be illegally replicated. Michael Weinberg, a senior staff attorney with Public Knowledge, warns that ‘printing in 3D is a disruptive technology that raises a lot of intellectual property issues’

The potential for piracy

The fear is that anything in the world will be able to replicated and reproduced without license- from iPhones and computer parts to chairs, shoes and much more. The question is- could the manufacturing industry go the same way as the music and film industry? Will they have to start worrying about BitTorrent sites leaking copies of design files for people to print cheaply and easily in the convenience of their own homes?

The backlash could lead to manufacturing companies seeking more restrictive protections on their products to prevent illegal copying. Weinberg warns that the implications could mean that ‘useful objects could be protected for decades after creation. Mechanical and functional innovation could be frozen by fears of massive copyright infringement lawsuits. Furthermore, articles that the public is free to recreate and improve upon today (such as a simple mug of bookend) would become subject to inaccessible and restrictive licensing agreements’

So could an invention that is designed to produce innovation really lead to the stifling and diminishing of just the very thing it seeks to promote?

A Possible Solution

However, there have been some moves to help fight against piracy on manufactured goods which should avoid a decrease in innovation and restrictive protections. The BBC announced last month that a patent has now been developed that would act much like DRM did on games and music. It will embed copy controls on 3D design files to ensure that they can only be printed by those with the correct authorization.

Whilst this may provide some solution, DRM for music and games by no means eliminated piracy, and proved hugely unpopular.

How do you protect a physical object?

Aside from an anxiety about piracy- another complication is that there is no set intellectual property protection that completely protects physical objects. Whilst there are some steps that can be taken to protect a physical object, none of these will actually protect the mold and shape of a physical object.

Trademarks protect names and therefore any logos on an object, designs protect the look of the object, patents protect how things work, and copyright might protect artistic patterns, but does not cover the actual physical object or the idea it expresses.

Another problems is that 3D printing also does not just allow objects to be replicated, but also allows for them to be altered making it much more unclear how and when a product’s intellectual property has been infringed.

What Next?

For now 3D printing has yet to become mainstream and it will probably be a while before every household owns a 3D printer alongside their 2D one- but these are some implications to bear in mind. This looks to be yet another area where the law will have to adapt to catch up to the ever changing world of technology.