Commerce Secretary Gary Locke is apparently greatly concerned about getting more federally funded research out of university research labs and into the market:

“the United States cannot afford to merely fund research and say a prayer that some entrepreneur will commercialize it down the road,”

So he’s asking for advice on how to improve the commercialization of federally funded research. Here’s a simple and practical idea that he almost certainly won’t consider:

Get the Bayh-Dole Act repealed.

Bayh-Dole, of course, was officially designed to do exactly what Locke is supposedly now looking to do. It specifically gave universities and other organizations the right to patent and control federally funded research, with the misguided belief that this would increase commercialization of federally funded research. The law was enacted thirty years ago, and we can now say, pretty conclusively, that it has failed and has only served to hold back commercialization efforts and to massively stifle federally funded research in a number of areas, through a series of (somewhat predictable, if you understand what monopoly rights do) unintended consequences.

Research studying the impact of Bayh-Dole found that it did not increase university research commercialization. Instead three things happened, all of which were bad:

1. First, tons of universities set up tech transfer offices because of Bayh-Dole. Thinking that the law would suddenly create a new revenue stream in licensing patents, universities spent heavily on setting up such offices to facilitate the transfer of patents to commercial entities. Unfortunately, patents, by themselves, are rarely that valuable, and most universities greatly overestimated the value of their patents. This hurt in multiple ways. Fewer patents than expected were licensable — and even when a potentially licensable patent came up, the tech transfer office often valued it way too high, such that companies refused to license it, or if they did, were saddled with such debt that they couldn’t build a real business. On the whole tech transfer offices have been a huge money loser for the majority of universities.
2. Second, Bayh-Dole actively stifled important research. Academic research has always been about active sharing of information, with different individuals testing, retesting, and modifying various hypotheses and tests. But with the focus on patenting, suddenly universities didn’t want their professors sharing any more, greatly holding back the standard process by which research actually becomes useful.
3. Third, by focusing on patenting and creating an exclusive right around federally funded research, it limited what fields that research could be applied to for commercialization. That’s because often, the licensing would be on an exclusive basis to a single company in a specific field — blocking out all other potential commercialization routes.

If Locke is serious about improving commercialization of federally funded research, it’s time to work with Congress to dump Bayh-Dole. Federally funded research is research paid for with American taxpayer money. To lock it up such that only a single organization can make use of it is a travesty, and is doing tremendous harm to both actual research and commercialization efforts. Instead, it’s time to recognize that the drive to innovate comes from market needs and competition, not from gov’t granted monopolies.

We’ve had nearly thirty years to witness that Bayh-Dole failed in its stated purpose. It’s time to get rid of it.

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New York-based Cablevision has been one of the more innovative cable providers out there over the years. It’s been mostly ahead of the competition in broadband speeds, and pioneered some interesting bundled offerings well before many other providers. It also fought and won its case to offer a remote DVR where other providers caved. That’s not to say Cablevision doesn’t have its own issues (and it certainly appears to have no clue how to run a newspaper). But, on the whole, when it comes to the actual technology side, you have to give Cablevision credit for really trying out new things and giving customers increased value.

One of its latest offerings is a pretty smart idea — letting subscribers move internet content to their TVs remotely. Now, lots of tech savvy folks have set up systems to do this themselves, but this actually sounds like it makes it quite easy for users to do without having to setup any hardware or run any wires or anything, as it’s all done over the internet. You send whatever you want to a Cablevision service, and then you can just turn on your TV to a specific channel, and you’ll have access to the content. If it works, it sounds pretty cool.

But… are there problems looming? Apparently, you’ll be able to send internet video as one of the types of content, and Broadband Reports found out that this includes content from sites like Hulu. Now, you may remember that Hulu has been pressured by its content partners/owners to keep its content (most of which originated on TV) off of TVs. There’s simply no good reason for this, but it looks like Cablevision is now enabling that functionality as well — even as Hulu has worked to block TV access from a variety of different devices and services. Seeing as NBC appears to be the major voice behind many of Hulu’s blocks, and NBC is in the process of being acquired by Comcast (assuming regulatory approval), that could make for an interesting battle between Comcast and Cablevision down the road…

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One result of the Supreme Court’s ruling in the Grokster case, five years ago, was formalization of the concept of “inducement” of copyright infringement as being against the law itself — despite the lack of any such concept in the statute, and a failure (despite repeated attempts) by Congress to put an inducement standard directly into the law (suggesting, pretty clearly, that Congress did not intend for there to be an inducement standard in copyright law). Now, the entertainment industry has stretched the Grokster ruling for years, pretending that the Supreme Court actually said simply that any file sharing program/site was violating copyright law. But that’s not true at all. What’s unclear, however, is what constitutes inducement and what doesn’t. Given various court rulings on the subject, it seems like you could set up a perfectly legal file trading system/search engine that doesn’t run afoul of the law by making sure that it wasn’t designed to induce infringement at all.

Unfortunately, pretty much every file sharing system/search engine that’s gone to court in the US has failed that test miserably by regularly pitching its product for the purpose of infringing on copyright law. In a recent ruling, concerning the torrent search engine IsoHunt, we noted that the judge found inducement in a variety of places in how the site was operated and (more importantly) in comments made by the site’s owner, Gary Fung.

Now, in response, Fung appears to be interested in trying to see if he can thread that needle and setup a site that still has the search engine, but avoids any of the things that were flagged for inducing infringement. The key one is the question of whether or not the company/site/owner promotes the infringing nature of its site — which is one par of the three-pronged test for inducement. Fung has proposed to the court that if he sets up such a site, which he calls isoHunt Lite, there shouldn’t be an injunction shutting down the site.

It’s an interesting legal question, but somehow I doubt the judge is likely to agree.

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A bunch of folks are talking about a patent that was recently granted to Facebook (7,669,123) that covers creating an automatically generated news feed based on things that you do. While not quite as broad as some of the original reports claimed, it’s still fairly broad, and highlights pretty clearly how ridiculous the patent system is.

The purpose of the patent system should be to create incentives to come up with something that is both new and non-obvious, which would not be created without that incentive. And, then, of course, the idea is to share that information with the world, via the patent. But here we have a case where this is an obvious next step advance. Such automatically generated news feeds are found in all sorts of systems and social networks these days. But now we have a case where one company may have the right to prevent others from doing what it makes perfect sense for them to do. That’s not what the patent system was designed to do at all. A patent like this should never have been approved at all, as it serves no useful purpose in “promoting the progress” and seems to go against everything that the patent system is supposed to do.

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A bunch of folks have been sending in the news of Xerox’s patent lawsuit against Google and Yahoo over search technology, and I’d debated posting it at all. It’s the same old story. A company widely considered a has-been goes searching through its patents, on technology it did nothing at all with, and sues other companies who had the same idea and actually went forward and implemented it successfully. Yet another case of “those who can’t innovate, litigate.”

But what caught my attention was Xerox’s given reason for pursuing the lawsuit:

“We believe we have no option but to file suit to properly protect our intellectual property.”

Sorry, but that’s no reason to file a lawsuit. It’s a common cliche in patent lawsuits, but it’s totally bogus. Of course you have other options. There is no rule that you have to file a lawsuit to “protect” the patent. There is no “protecting” that needs to be done. This is just a blatant attempt to squeeze money out of companies who actually implemented a product where Xerox failed. That’s not protecting, it’s shaking down.

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It looks like a growing number of European politicians are fed up with the secrecy of ACTA, and don’t like what they’re hearing from the leaked documents, and they’re starting to speak up, asking questions and airing their concerns. They’re demanding the publication of the details of the negotiations, while worrying about anything that might push ISPs to kick people off the internet at a time when it’s a key European goal to increase broadband access. There’s also tremendous concern that ACTA is really a way for US companies to sneak desired legislation into Europe outside of the parliamentary process:

“ACTA is legislation laundering on an international scale, trying to covertly push through what could never be passed in most national parliaments”

The same statement pointed out that all of the lobbyists who had signed NDAs to see ACTA came from US companies and organizations — and none from the EU. It makes you wonder why any other country would agree to ACTA at all…

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Sometimes you come across stories so odd, you just don’t know how to classify them. You may have heard, recently, about the New England man, Gregory Girard, who was arrested for illegal weapons stockpiling in his home. The guy, who claimed that he believed Armageddon was quickly approaching, had recently told his wife both, “It’s fine to shoot people in the head because traitors deserve it,” and “Don’t talk to people, shoot them instead.” Not surprisingly, he’s being held without bail for being too dangerous.

So, what does that have to do with stuff we write about here? As noted at The Prior Art, Girard is the inventor and claimed patent holder at the center of the high-profile patent infringement lawsuit that involved Rick Frenkel, who had been the anonymous guy behind the still greatly missed Patent Troll Tracker blog. As you may recall, Frenkel was sued for defamation in East Texas, after he had questioned the legitimacy of a date change on a patent lawsuit filed against Cisco (where Frenkel worked at the time). Basically, the lawsuit appeared to have been filed the day before the patent was granted and then, magically, the date changed. The lawyers involved suggested it was an honest mistake, but others suspected otherwise.

Either way, Frenkel’s case settled, and (separately) the judge just recently tossed out the patent infringement lawsuit against Cisco that resulted in all of this, after realizing that it appeared that Girard and the holding company he had set up for lawsuits involving this patent didn’t actually own the patent in question. Girard had developed the invention while employed by another company, which was working on similar technology, and Girard’s own employment agreement said he would automatically assign any inventions over to the company. Still, during the lawsuit, Girard’s lawyers tried to play him up as an All-American inventor:

“Mr. Girard is exactly what the founding fathers had in mind when they penned the Patent Clause in the basic Article I of the U.S. Constitution.”

But perhaps not what they had in mind when they penned the rest of the Constitution.

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We keep hearing about more and more revelations of unlawful spying on Americans, often with the President’s explicit approval. It’s really quite impressive (if not surprising) how often the regular oversight process for surveillance appears to be ignored or abused. The latest, brought to us, once again, by the tireless efforts of the EFF, is to reveal hundreds of reports from the Defense Department concerning surveillance efforts that the Inspector General has “reason to believe are unlawful.”

What’s really amazing here is that the US does have clear processes for surveillance and wiretapping efforts. But it seems like these processes are regularly ignored. So it makes you ask why? The most likely reason is that those involved know that these attempts wouldn’t be approved. For a country that supposedly believes in due process and civil rights, it seems like we have a long, long way to go.

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It seems to happen every year around this time. Senators on the Judiciary Committee announce that they’ve got a plan for patent reform. We’ve been hearing the same thing for about half a decade now, and while legislation gets introduced, it never actually goes anywhere. I’ll be curious to see what they’ve got this year, but since they claim they’ve come “close to a compromise,” my guess is that, like previous patent reform bills, there will be a lot of hype, and it probably won’t do all that much to get at the real problems with the patent system. It may fix some things around the edges, but like last year’s bill there will be a lot of bad things in the bill as well.

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