The following note deals with the creation of IP by an advertising agency, remuneration and the creative possibilities that copyright offers. This was originally posted on the blog of marketing management gurus TrinityP3
The original note can be read here
Perhaps the number one (silly) copyright misconception is that copyright protection is somehow obtained by mailing your work to yourself and retaining the unopened envelope. This is commonly known as Poor Man’s Copyright.
I confess to being inspired by Harry Pearce and his book Conundrums – a beautiful collection of typographic puzzles.
Being a typophile, I thought I’d try my hand at a few of my own.
So, here begins a series of typographical conundrums with an IP (intellectual property) bent, fashioned after Harry Pearce and constrained to the same rules as his: one box, two colours, one typeface.
One a week, so watch this space.
IP Conundrum #1
Patented space suit_US 3751727
Why do space suits matter for inventors or entrepreneurs wanting to take a product to market?
It’s not to make a fashion statement, help defend against rejection from potential investors/customers, or to attract attention. Rather, the process of designing, developing and making space suits matters because it helps teach us something about the way we make decisions.
In terms of decision theory, the process appears to epitomise the “maximising” approach to decision-making strategies – i.e. identifying an “optimal solution” for each of a number of problems before making a decision. Or, so it seems…
We may want a fantasy and may envisage self in a fantasy – however, to stretch the truth into a fantasy is problematic.
In law we have specific guides to clearly inform us as to:
The two may be very different. Belief is not knowledge, since knowledge is based on facts, which helps establish truth.
Facts can be challenged (think, for example: the attacks on climate change science).[1] However, challenging on the basis of conflicting facts is very different from challenging on the basis of belief. By way of example, think about how the politics of climate change belief has influenced public debate.
So, what our beliefs are and the reality (truth) can be different.
Confronting belief with reality
Let’s take another example – the belief that it’s good to enter a “profession”. This belief leads to certain behaviours that encourage children to grow up to become, say lawyers or doctors. This behaviour further promotes the high standing of the ‘professions’ in our culture.
However, the more competition there is to join a “profession”, so the criteria to join become higher and the rewards early in the career get lower . Examples of high pressure, low reward professions include science, architecture and now possibly law.
So when belief is confronted with reality, the “truth” can be quite different. What you don’t expect is sometimes surprising. -FULL POST>
Contagion of ideas: the meme
In The Selfish Gene, Richard Dawkins coined the term “meme” as a unit or measure of cultural transmission – the process in which ideas, behaviour, style or other aspects of culture spread, “transmit” or self-propagate much in the way that genes propagate in the gene pool.
Malcom Gladwell likens a meme to “an idea that behaves like a virus that moves through a population, taking hold in each person it infects”: http://www.gladwell.com/tippingpoint/
So, what do patents have to do with memes?
The all-important filing date provides a clue to the answer. This is because patents are ultimately a product of their times. They reflect current cultural beliefs, values and trends – albeit with an eye to the future. FULL POST
The average inventor[1] is more likely to be:
Inventors do not have disproportionally more genius genes, but are highly motivated and therefore are driven to make a difference. Studies of identical twins separated at birth indicates that creative thinking is:
What does the above profile represent? FULL POST
Most of us are now familiar with the idea that a shape can gain protection as a registered trade mark. The Coca-Cola bottle is a famous example.
An Australian Federal Court decision this month (Bodum v DKSH Australia [2011] FCAFC 98) held that unregistered rights in features of a product’s shape can also be protected, if the shape itself has acquired a sufficient reputation. FULL POST
As an alternative to starting a business from scratch, the beautiful thing about buying a franchise is that the franchise is a proven business model which can be readily replicated by virtue of strong brands, tight marketing, purchasing power and a franchisor who well and truly knows the ropes. As an established brand, consumer search costs are low with a franchise and significant goodwill already exists.
Too easy. FULL POST
Year 2016: A global Intellectual Property bubble with a massive ‘pump and dump’ operation was one scenario forecast by European Patent Office published in “Scenario for the Future” (2007).1
Problem:
Is the European Patent Office prophetic and could we be heading for another crisis?
Maybe – at a stretch: The value of companies in the high tech sector has been increasing for many years now mainly due to their intangible asset valuation increases.
Intangible assets – especially patents – are open to manipulation in value, which in turn leads to excessive trolling. -FULL POST>
In Australia, and other many countries of the Commonwealth such as the United Kingdom, patent attorneys do not require a law degree or to be admitted as a solicitor. In contrast, the US model of practice requires patent attorneys also to be qualified as solicitors.
“We know we need each other” 1
Confusion flourishes through the use of the different terms used to describe practitioners involved in patent work. For example:
So, what is the difference? -FULL POST>
You are almost ready to be entrusted with the secret ingredient of my secret ingredient soup. And then you will fulfill your destiny and take over the restaurant just as I took it over from my father who took it over from his father who won it from a friend in a game of mahjong.
Mr Ping to his son, Po
Kung Fu Panda (2008), Dreamworks
We are today all familiar with the concept of the signature dish, or “secret ingredient soup”, by which an individual chef or restaurant may be defined. Sydney chef Tetsuya Wakuda’s confit of ocean trout with konbu and fennel is considered one of the most iconic dishes in the world. Thus a signature dish is much more than a plated product: it is imbued with the personality of the individual chef – as definitive as an author’s voice or an artist’s style. Over time, it may come to identify a particular establishment such as Waldorf salad originally created at the Waldorf-Astoria Hotel in New York in the 1890s.
So what is the design process behind creating a signature dish?
In reality, it is created over time or develops through circumstance and the creativity of the chef. For example, Tetsuya’s famous dish is said to have started life as a salmon dish but developed into a dish of ocean trout (with several re-writes of the recipe) as a result of salmon not being available year-round back in the 1990s. Brisbane chef Philip Johnson of e’cco Bistro describes signature dishes as happy accidents. His signature dish of mushrooms on toast evolved from something in London, with his own creative twist: using olive toast and adding truffle oil and parmesan. It has remained on the menu at his restaurant for 15 years.
The popularity of a signature dish promotes bookings and hence forms a valuable asset for a restaurant.
So how is a signature dish protected?
Assuming most signature dishes are committed to material form (e.g. a recipe), copyright protects the specific expression of the recipe created by the chef (i.e. the words as expressed by the author). This means no one can reproduce, publish, translate, distribute or communicate (make available online) your specific expression of the recipe (or a substantial part of it) without your permission.
However, no one needs permission to use the information contained in a recipe (i.e. to follow the recipe). This is because copyright does not protect the information (e.g. ideas, lists of ingredients, methods or techniques for making a dish), only the specific way in which the information is expressed. “Were the law otherwise, everybody who made a rabbit pie in accordance with the recipe of Mrs Beeton’s cookery book would infringe the literary copyright in that book”: Cuisenaire v. South West Imports Limited [1969] S.C.R. 208 (Supreme Court of Canada).
Likewise, if someone watches you preparing a dish and writes down the ingredients and instructions (method) in their own words, this does not infringe copyright in the recipe. For the same reason, there is nothing to prevent “reverse engineering” of a completed dish to identify flavours and ingredients, or to stop other chefs or cooks from drawing inspiration from an idea underlying a recipe. However, giving credit to the source of inspiration is common among many chefs – and good practice.
With popular interest in celebrity chefs and the resurgence of interest in home cooking, cookbook sales have surged 9% according to Nielson figures published in August 2010, despite declining book sales plaguing the rest of the book publishing industry. It seems that many celebrity chefs are not afraid to share the recipes for their signature dishes with the public. A quick search on Google can locate a number of recipes for Tetsuya’s ocean trout. His recipe is also published in various books and the source of inspiration for other chefs, cooks and writers. Yet the waiting list for a booking at his famous restaurant remains strong and the signature dish remains a popular first choice among diners. Similarly, diners are willing to pay for a mushroom on toast dish that its own creator has stated could easily be made at home.
Clearly a signature dish is more than the underlying recipe or the sum of its ingredient parts, and restaurants are not relying purely on copyright to protect the commercial success of their signature dishes. A signature dish articulates the skill, experience and creativity of the chef (restaurant). As such, it represents the brand of the chef and his or her restaurant and forms a key brand asset for a restaurant. Signature dishes can be as important a part of a restaurant’s (and chef’s) brand as the decor, the menu and the quality of the service. An iconic signature dish can serve to distinguish a chef/restaurant as much as the restaurant’s name.
The strength of the restaurant’s brand (built around a signature dish or dishes) attracts patrons and has led to the cult of the celebrity chef. This has also led to extension of the chef/restaurant brand to merchandise such as branded food products (e.g. sauces, butters, branded wines, olive oils), cookware and clothing. Thus brand protection is important to continuing commercial success and to driving interest in a chef/ restaurant…it attracts diners who want to try the chef’s version of a signature dish – even if they could make the dish themselves. The commercial value is captured and protected through protection and exploitation of the brand, not just the copyright.
To quote again from Kung Fu Panda, once Po has earned the privilege of learning the secret ingredient, his father Mr Ping reveals that “The secret ingredient is…nothing!” Similarly, there is no “secret ingredient” to many signature dishes: it is the chef who transforms the dish into something special. The brand of the chef is part of the magic.
Po: Wait, wait… it’s just plain old noodle soup? You don’t add some kind of special sauce or something?
Mr Ping: Don’t have to. To make something special you just have to believe it’s special.
Kung Fu Panda (2008), Dreamworks
This article was originally published in Issue 33, October 2010, of the industrial design magazine Curve
Authorship as identity
We all understand what it is to be an author. We identify series of books through characters. Think: Harry Potter. The author’s individual style also identifies the author as the common source of texts. Think: Dr Seuss.
In primary school we create our own stories and other works, and so engage the world as an author from a young age.
In his 1967 essay The death of the author, French literary theorist and philosopher Roland Barthes challenges the idea that a text can be attributed to a single author. Barthes argues that a text is never original because it is a reflection of references from a multitude of traditions and quotations from innumerable cultural centres. Thus every piece of writing reflects a fabric of inputs rather than a single voice.
Authorship as currency
In 1985 the International Committee of Medical Journal Editors sought to establish uniform standards for what contributions merit authorship in biomedical journals. This proposal was an attempt to stamp out the practice of “gifting” authorship in exchange for materials, research subjects, career advancement and so on.
Legal significance
The use of authorship as a bartering tool reflects its inherent value. Authorship is valuable because the right to own IP devolves from authorship.
Copyright
For copyright purposes, the author is the person who expresses an idea in tangible form (e.g. writing, a drawing). This is even if the idea was supplied by another person. Consider the following examples (based on legal cases):
The author is the person who produces an “original” work through the exercise of labour, skill and judgement. Merely transcribing material supplied by another person does not constitute authorship.
The default position for copyright is that the author is the owner. This is subject to:
Registered designs
Authorship of a registered design is attributable to the person who conceives the design (the relevant shape, configuration, pattern or ornamentation) and reduces it to visible form (e.g. by drawing it up or making a model).
Disputes may arise where one person conceives a concept for a design, puts it into a rough material form then contracts a second person to draw up the final design, If the first person leaves only minor details to the choice of the second person then the first person is the author. Conversely, if the instructions of the first person leave practically all to the second person, the author is the second person. Ownership of a registered design devolves from designership of the design.
The default position for registered designs is that the actual designer is the author and owner of the design and is entitled to apply for registration as the owner of the registered design. This is subject to:
What if a final design comes about through functional or practical production considerations rather than aesthetic considerations? Is a person who contributes technical expertise an author?
In the design of a security glass brick designed to be used in situations where greater structural strength is required (e.g. jails), a manufacturer of glass bricks relied heavily on technical expertise of a manufacturer of strengthened glass to arrive at the final design. The Australian Designs Office found that the contribution of the toughened glass manufacturer was sufficient to establish joint authorship in the final design – the result being that it was entitled to be recorded as a joint owner of the application to register the design: Glass Block Constructions (Aus) Pty ltd v Armourglass Australia Pty Ltd [2005] ADO 1. The relative contributions of two parties engaged in developing a product for manufacture were sufficient to establish designership rights for both parties.
Another common situation is when one party develops IP rights incidental to development of a product owned by another party. In Dennis Gravolin and Trailer Vision Pty ltd v Lomac Holdings Pty Ltd as trustee for Lomac Trust [2007] ADO 7, the owner of a patent for a trailer plug obtained assistance from a manufacturer to manufacture a trailer plug product. The manufacturer filed applications to register designs for a number of trailer plugs. None of the design applications related to the actual product that was the subject of the arrangement between the parties or a confidentiality agreement signed by the manufacturer – there were clear differences in the shape and configuration of the housing of the patented plug and that of the relevant design applications. The dealings between the parties were silent on IP created by the manufacturer incidental to the arrangement with the patent owner. Therefore, the manufacturer was free to develop incidental IP rights with no obligation to disclose them to the patent owner. There was no evidence to establish any right to authorship (through contributions to the development of the designs) by the patent owner.
This decision illustrates that the owner of certain IP rights (e.g. the patent owner) does not necessarily own all rights incidental to arrangements with other parties relating to their IP. The manufacturer’s design rights were created independently from the patent owner’s rights and, absent any circumstances to establish the contrary, the manufacturer owns them.
Patents
When is a person who contributes to an invention entitled to claim inventorship? When one person has a general idea of what is required but does not necessarily know how to put those ideas into effect and a second person does, then both are the inventors: Row Weeder v Nielsen (1997) 39 IPR 400. The question might be whether the invention would have occurred without the second person’s involvement: Costa v GR & IE Daking (1994) 29 IPR 241. The contribution of the second person needs to have a material effect on the final concept of the invention: Row Weeder. There is no joint inventorship with a person who bases the claim on knowledge derived from the true inventor: Stack.
Practical significance
The unifying element for joint authorship, designership and inventorship is the involvement of multiple people in an activity of original creativity. Title devolves from the creator of the work to the person obtaining the legal monopoly right.
For designers (other than employees), the default position for:
This assumes the designer is making a sufficient, original contribution to establish authorship, designership or inventorship. As the default position for ownership can be altered by agreement, designers need to be able to identify when steps are required to secure ownership or when you are the owner. Agreements about IP ownership must be written. By understanding your rights, you may have leverage to insist on ownership or be adequately compensated in dealings with clients.
This post originally appeared as an article in Issue 32, July 2010, of the industrial design magazine Curve
Is open source patenting a possibility? Is patenting totally contradictory to the idea of open source?
There are plenty of people who espouse the view that patent protection is simply a tool for big business to flex its muscle and block access to innovation by small players and competitors.
However, the underlying rationale of patent protection is to force an invention onto the public record. Sure, the patent owner gets a monopoly but it is limited for a specific period of time (very limited if you compare it to the monopoly a copyright owner gets) and after that it is free for all to use – down to the very last detail. In fact, you can’t get a patent unless you put in the detail.
So the patent databases in reality form the largest standardised library in the world…publicly accessible (no paywall / subscription fees) and reliable (at least in relation to granted or issued patents).
Why should the open source community consider patenting? Getting a patent for an invention blocks another party from getting a patent for the same invention. So, if a group of open source collaborators can secure a patent, it can choose to grant a royalty-free licence to the open source community to use it (just as open source software is licensed). This secures the invention for public use immediately. In other words, it blocks the ability for another party to patent that invention and prevents that other party from exploiting it for commercial gain. Check mate.
Secondly, it secures the open source community the right to continue using the patented invention subject to the terms of the patent licence. A term of the licence may be that any modifications, enhancements or improvements are owned by the (open source) patent owner, thereby retaining all enhancements for public use.
Thirdly, open source patented innovations reside on patent databases and thus form part of the same public record, which makes the public record more comprehensive and useful to the community at large.
So, how is open source patenting workable?
One of the key hurdles to patentability is that an invention needs to be novel (new). This means it cannot be publicly known or used before the patent is applied for. How can open source collaborators collaborate without destroying novelty?
One suggestion for making it workable would be to exploit the “grace period” available under patent laws in countries such as Australia, Canada, Japan and the USA. A grace period means that you can still apply for a patent after disclosing your invention (sharing it with open source collaborators) so long as you lodge your patent within 6 to 12 months (depending on the country). Sure, it’s not foolproof because not every country has a grace period (Europe is a notable exception) but we’re talking about ways to overcome hurdles to enable open source collaborators to tap in to the benefits of patenting.
Another suggestion is that a project be flagged for patenting at its inception (before any detail is provided) and collaborators sign up under an NDA before they can view and contribute. For example, an inventor could:
What about costs?
Building a community of particular skill sets to help draft the description of an invention for a patent would offset patenting costs and aid in obtaining a contribution by a community in an Open Source manner. The patent once described (e.g. as per the steps above) could have a patent attorney draft the claims or oversee the claim drafting, rather than being involved throughout the process.
If the patent is successful, then:
to promote further open source patent opportunities such as a contribution for payment of Official Fees in each jurisdiction.
We see this approach as an open source solution to promote access and availability to the excellent resources available both in the community and in the patent offices around the world.
Autism and psychotic-affective disorders are developmental opposites, two sides of the same coin – according to the theory developed by researchers Bernard Crespi (a geneticist at Simon Fraser University, Canada) and Christopher Badcock (a sociologist at the London School of Economics) that the brain’s balance is set by a “tug of war” between our genes.
Their theory proposes that an epigenetic disruption results in either:
(a) under-development of the ‘social’ brain, which is linked to autism; or
(b) over-development of the ‘social’ brain, which results in psychotic-affective conditions such as schizophrenia, bipolar disorder and depression.
The extremes of these disorders – autism to schizophrenia – are up to 80% heritable and expressed by DNA copy-number variants – that is, the number of copies of each region of human DNA, which is ordinarily diploid: having two copies, one per chromosome. However, this varies for particular DNA regions due to deletion or duplication of the genetic code leading to disorders such as under or over development of the “social” brain.
Nature Medicine reports in its April issue that research by Crespi has found that five sections of DNA with copy-number variants were associated with both extremes, and of these sections, four acted in opposite directions. That is, for some of these copy-number variants:
(i) too many copies were associated with autism, and
(ii) too few with schizophrenia, or vice versa depending on the actual variant.
Why does the deletion or duplication occur?
DNA matched copy-number variants were uncovered with completion of the human genome project, which enabled observation of disorders such as:
(c) cancer – where the level of duplication was found to be elevated; and
(d) lupus and other inflammatory autoimmune disorders were associated with deletion.
This deletion or duplication may have an epigenetic origin.
Gene expression can be altered by non-genetic factors causing the organism’s genes to “express themselves” differently depending on the cell’s memory. For example, a famine three generations ago in males giving rise to trans-generational epigenetic expression of lower heart disease and diabetes compared to a control population.
This recent work by Bernard Crespi and Christopher Badcock has tied genetics, psychiatry and perception in a unified fashion.
see:
A meeting of minds Nature Medicine 16, 353–355 (2010)
Epigenetics http://en.wikipedia.org/wiki/Epigenetics
According to Nature Medicine 16, 348 (2010) the law is responsible.
Why the law is poor
Nature Medicine proposes that the reporting o f counterfeit drugs is not mandatory and therefore is underreported. This may be true for the USA where pharmaceuticals are bought online, which is a major distribution source of counterfeit drugs; however, in countries like Australia, this is not a major source of counterfeit drugs.
But where is the problem most endemic? In countries such as India, it is a huge problem since the recipients of counterfeit drugs cannot generally buy legitimate drugs through legitimate means.
In my mind, the first question arises is how does one know that a drug is counterfeit and therefore know to report? This is the first step. The problem with counterfeit drugs is that they do not contain the pharmaceutical required for its action, or may contain a poison.
More laws do not remove the problem
There are many laws already available to stop the sale of counterfeit drugs; however, we are not seeing these laws being used. Why? The main problem is detection. How is an individual or even a practitioner to know if a drug is not working? Is it because of the patient’s own response, the profile of the drug (many drugs are not 100% effective in all patients at all times) or because a drug is counterfeit?
Increasing the policing of counterfeit drugs by putting a mandatory obligation onto reporting of counterfeit drugs will not address the above problems. This really in turn is making a recipient of a counterfeit drug a criminal if they do not report it. Further increasing policing of reporting has a huge cost with little return.
Use reward, not the stick!
I believe that increased reporting is necessary, but not by imposing penalties. A reward for reporting counterfeits would have a much more positive outcome for all concerned. This will help stop counterfeit drug trafficking, because it:
1. will not cause criminalisation the innocent recipients, thus further expanding the black market; and
2. will help the recipients of counterfeit drugs, who are the most vulnerable due, afford the legitimate channels for legitimate drugs.
Further, industry should support the development of readily available objective tools for proper screening of drugs to allow recipients to determine the legitimacy of drugs they have received, thereby facilitating the reporting of counterfeits.
I note that, as reported in Harvard Business Review, more than 1.6 million Americans will travel abroad for medical treatment for good care at much lower prices.
Is this just limited to medical services?
Can this be for other services such as IP protection?
Consider if you are an individual inventor or a major company with an invention portfolio that you wish to get patents & trade marks for. Would you consider using a jurisdiction such as Australia with high standards and low costs to:
1. lodge your initial Patent & Trade Mark registrations , followed by
2. use of international treaties such as the Patent Cooperation Treaty (PCT) & Madrid Protocol (trademarks) to extend the protection into the expensive jurisdictions such as Europe and the USA.
Outsourcing services & exploiting international treaties is also available for IP protection: will this be another emerging outsourcing & off-shoring?
Published initially in blog at http://www.1place.com.au/wptest.php
We have a limited number of “learning tools” to perceive our environment. These tools evolved:
1) by exploiting neuronal plasticity to “recycle” brain area(s) to optimize our perception for survival;
2) to enable our understanding of information by putting it into a form that is perceptible to our brain – that is, to enable learning; and
3) in the form of reading, mathematics, tool use, music and religious systems according to Cook (2010).
Consequently, our culture has evolved by what was able to be understood by our brain. Our learning tools have evolved to filter information to what is, in evolutionary terms, necessary for survival.
Are these learning tools, by filtering information, now limiting our innovation flow?
That is, what learning was required for survival may be very different to what we now require in terms of innovation?
Computer learning: Are our evolutionary next steps now unhindered?
Using computers we can now remove the limitations of our human:
a) learning tool filtration; and
b) culture perceptions?
See:
1. Gareth Cook (2010) Scientific American Mind; Mar/Apr2010, Vol. 21 Issue 1, p62-65, 4p, 4
2. http://radar.oreilly.com/2010/03/how-do-we-measure-innovation.html
The race started with the establishment of neuro-informatics, using software to analyse the 120-million-base-pair genome of the fruit fly.
USA’s Craig Venter, via his firm Celera, challenged established government funded science and started the race to sequence the human genome. Along the journey his firm patented software and algorithms that were used to analyse the genome, as well as 150 drug targeted genes.
My understanding is that these patents did not, & do not, limit academic research into the human genome and that Venter’s team was a major contributor to public gene libraries.
Where does the race end? Craig Venter in his book “A Life Decoded” stated that the artificial cell was the next step, where drugs could be trialled by inserting cassettes of genes into DNA to model answers to disease and genetic deformities: Craig Venter is inspirational & what a decade!
See http://www.nature.com/news/2010/100331/full/464668a.html
If you have patented your differentiating technology then maybe you can determine its future success:
In the paper “Discovery of factors influencing patent value based on machine learning in patents in the field of nanotechnology” by Scott D. Bass Æ Lukasz A. Kurgan Scientometrics (2010) 82:217–241 this proposition was tested.
Patents reflect technological change by representing inventive output in a manner that is standardised in different fields, countries and time periods. This enables the use of patent analytical techniques to reveal the following:
(i) inventors approach(es) in light of the economic policies at the time;
(ii) extent of commercialisation of academic pursuits (e.g. was the patent assigned/licensed); and
(iii) outcome of the technology in terms of patent value.
This study sampled the field of nanotechnology patents and identified some interesting trends (e.g. common features of high value patents) that could be used to predict future value of nanotechnology patents.
Of interest, patents with a higher probability of performing well were:
(i) patents with a greater number of outgoing citations revealing their scientific sources; and
(ii) lodged by inventors who:
a. previously had valuable patents in place; and
b. had a longer history of inventing.
You would think it would follow that research institutions such as universities should have more patents of high value. However, there are no universities or research institutions in the Top 100 PCT Applicant list in 2009.
