It has been hard not to notice the recent 10 year sentence for a conman selling bomb and drug detectors across the world – which cannot have worked.
Fake bomb detector conman jailed for 10 years. James McCormick, who sold more than £55m worth of fake detectors likely to have caused Iraqi deaths, jailed for 10 years.
Happily the ones bought by the police in Kenya apparently do work; as the Nation reported: “The report contradicts a statement by Nairobi police chief Benson Githinji who told reporters on Friday that “the machines in use are serviceable and don’t fall short… They are in operation and they work.”
However, it seems the case above has not been alone, because the BBC has just reported on 29 May 2013,
Three people have gone on trial at the Old Bailey charged with making and selling fake bomb and drug detectors.
The marketing material for the Alpha 6 Molecular Detector billed it as revolutionary product. It claimed the device could detect explosives and drugs in quantities as tiny as 15 billionths of a gram at a range of 300m (980ft), using static electricity.
Those of us with long IP memories, might start to remember the DKL LifeGuard patents, as explored by Daniel C. Rislove in his paper in the Wisconsin Law Review:
In 1996, a district court granted the United States a permanent injunction against the Quadro Corporation, enjoining Quadro from selling a class of devices variously called the Quadro Tracker, Golfball Gopher, Trailhook, or Treasure Hunter. The marketing literature for these devices claimed that they could detect unseen objects by directing the bearer of the device in the correct direction, much like a dowsing rod acts to conduct its bearer towards water.
For example, it claimed that the Quadro Tracker was capable of detecting contraband such as illegal drugs and explosives. X-rays of the device determined that it consisted of nothing more than a hollow plastic shell with an attached radio antenna. Thus, like the classic dowsing rod, the Quadro Tracker was incapable of detecting anything. The primary victims of this fraud were law-enforcement agencies, correctional institutions, and school systems.
Enter DKL International, Inc. DKL markets a very expensive, handheld device called the DKL LifeGuard — purported to be capable of detecting living humans at a distance—to government agencies worldwide. Like the Quadro Tracker, the DKL LifeGuard fails to function as claimed. Why then is DKL International allowed to market its detectors while the Quadro Corporation is enjoined from selling similar devices? One possible explanation is that the DKL LifeGuard, unlike the Quadro devices, is covered by no less than eight patents.
It seems Rislove’s full paper, “A Case Study of Inoperable Inventions: Why is the USPTO Patenting Pseudoscience?” is still raising as many questions today as it did in 2006.
Over at Trademarkia, the big trademark search engine, there is an illuminating section suitable for Friday afternoons. You can look up what they describe as the ‘biggest trademark bullies‘ by class. Or consult the list of biggest victims. Moral of the story? Don’t use ‘Live’ or ‘Strong’ in your mark, or a charity will pursue you – The Lance Armstrong Foundation.
If you’ve read a book by Cory Doctorow, you may be familiar with what he describes as his “pretty unorthodox views about copyright”. If you haven’t read one, or better several, you’ve been missing out. If you head over to Cory’s site and download a free version of a book from it you will find this viewpoint in it:
THE COPYRIGHT THING
The Creative Commons license at the top of this file probably tipped you off to the fact that I’ve got some pretty unorthodox views about copyright. Here’s what I think of it, in a nutshell: a little goes a long way, and more than that is too much.
I like the fact that copyright lets me sell rights to my publishers and film studios and so on. It’s nice that they can’t just take my stuff without permission and get rich on it without cutting me in for a piece of the action. I’m in a pretty good position when it comes to negotiating with these companies: I’ve got a great agent and a decade’s experience with copyright law and licensing (including a stint as a delegate at WIPO, the UN agency that makes the world’s copyright treaties). What’s more, there’s just not that many of these negotiations — even if I sell fifty or a hundred different editions of this book (which would put it in top millionth of a percentile for novels), that’s still only fifty or a hundred negotiations, which I could just about manage.
I /hate/ the fact that fans who want to do what readers have always done are expected to play in the same system as all these hotshot agents and lawyers. It’s just /stupid/ to say that an elementary school classroom should have to talk to a lawyer at a giant global publisher before they put on a play based on one of my books. It’s ridiculous to say that people who want to “loan” their electronic copy of my book to a friend need to get a /license/ to do so. Loaning books has been around longer than any publisher on Earth, and it’s a fine thing.
Copyright laws are increasingly passed without democratic debate or scrutiny. In Great Britain, where I live, Parliament recently passed the Digital Economy Act, a complex copyright law that allows corporate giants to disconnect whole families from the Internet if anyone in the house is accused (without proof) of copyright infringement; it also creates a “Great Firewall of Britain” that is used to censor any site that record companies and movie studios don’t like. This law was passed in 2010 without any serious public debate in Parliament, rushed through using a dirty process through which our elected representatives betrayed the public to give a huge, gift-wrapped present to their corporate pals.
It gets worse: around the world, rich countries like the US, the EU and Canada negotiated secret copyright treaties called “The Anti-Counterfeiting Trade Agreement” (ACTA) and “Trans-Pacific Partnership” (TPP) that have all the problems that the Digital Economy Act had and then some. The plan was to agree to them in secret, without public debate, and then force the world’s poorest countries to sign up for it by refusing to allow them to sell goods to rich countries unless they do. In America, the plan was to pass it without Congressional debate, using the executive power of the President. ACTA began under Bush, but the Obama administration has pursued it with great enthusiasm, and presided over the creation of TPP. The secret part of the plan failed — ACTA ran into heavy opposition in Congress and has been rejected by Mexico and the European Parliament — but the treaty isn’t dead yet, has supporters on both sides of the house who keep attempting to bring it back under a new name. This is a bipartisan lunacy.
So if you’re not violating copyright law right now, you will be soon. And the penalties are about to get a lot worse. As someone who relies on copyright to earn my living, this makes me sick. If the big entertainment companies set out to destroy copyright’s mission, they couldn’t do any better than they’re doing now. Just as this book is coming into print (February, 2013), the big American ISPs and big American entertainment companies are rolling out “six strikes” — a voluntary plan to harass people accused, without proof, of downloading, and ultimately, to disconnect them from the net. So, basically, /screw that/.
Or, as the singer and American folk hero Woody Guthrie so eloquently put it:
“This song is Copyrighted in U.S., under Seal of Copyright #154085, for a period of 28 years, and anybody caught singin’ it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.”
Cory Doctorow is a science fiction author, activist, journalist and blogger — the co-editor of Boing Boing and the author of young adult novels like PIRATE CINEMA and LITTLE BROTHER and novels for adults like RAPTURE OF THE NERDS and MAKERS. He is the former European director of the Electronic Frontier Foundation and co-founded the UK Open Rights Group. Born in Toronto, Canada, he now lives in London. So what do you think? Leave a comment below.
If you’re searching for a new toy for your dog, what do you look for? Something novel? Something which is not obvious? Of course you would and your wish has been granted:
An apparatus for use as a toy by an animal, for example a dog, to either fetch carry or chew includes a main section with at least one protrusion extending therefrom that resembles a branch in appearance. The toy is formed of any of a number of materials including rubber, plastic, or wood including wood composites and is solid. It is either rigid or flexible. A flavoring (scent) is added, if desired. The toy is adapted to float by including a material therein that is lighter than water or it is adapted to glow in the dark, as desired, by the addition of a fluorescent material that is either included in the material from which the toy is made or the flourescent (sic) material is applied thereto as a coating. The toy may be segmented (i.e., notched) so as to break off into smaller segments, as is useful for smaller animals or, alternatively, to extend the life of the toy. Various textured surfaces including camouflage colorings are anticipated as are straight or curved main sections. The toy may be formed of any desired material, as described, so as to be edible by the animal.
That’s the Abstract for United States Patent 6360693. So to sum that up, a stick made of wood to throw for a dog is described. “Clearly, such an apparatus would be a useful and desirable device.”
Back to the drawing board for my new device, an ‘Ossiform Chewing Toy For Canine Species Fabricated in an Osseous Material’.
by Graham Dutfield
(originally published 26 May 2003 on scidev.net)
A growing number of critics of ‘bioprospecting’ complain that companies often fail to adequately compensate holders of traditional knowledge, and that patents on products developed in this way are actually a form of intellectual piracy.
What is bioprospecting?
‘Bioprospecting’ is a word that has recently been coined to describe the centuries-old practice of collecting and screening plant and other biological material for commercial purposes, such as the development of new drugs, seeds and cosmetics.
Companies that sponsor bioprospecting expeditions, in particular from the pharmaceutical or food industries, hope to find information from the biological resources they collect that will lead to new products, for example novel drugs. Some of these expeditions also seek to acquire useful information about such resources from local people including, in the case of drugs, native healers.
It can also be argued that bioprospecting also plays a wider role in encouraging the preservation of biodiversity. Many conservationists, for example, believe that by highlighting and — hopefully — confirming the economic potential of a wide range of biological resources, bioprospecting expeditions can create incentives to protect tropical forests, coral reefs and other biologically diverse and threatened ecosystems.
At the same time, however, a growing number of critics complain that bioprospectors often fail adequately to compensate the countries and communities that provide access to their resources and associated traditional knowledge (TK). Such critics argue that patents on products developed as a result of the efforts of ‘bioprospectors’ are sometimes based so closely on TK that they are in fact a form of intellectual piracy.
What counts as biopiracy?
The word ‘biopiracy’ was coined by the North American advocacy group, Action Group on Erosion, Technology and Concentration (ETC Group) — formerly known as Rural Advancement Foundation International — to refer to the uncompensated commercial use of biological resources or associated TK from developing countries, as well as the patenting by corporations of claimed inventions based on such resources or knowledge.
ETC Group and others allege that such patents are wrongly awarded. This could be due to a number of factors: the examiners may not have enough time and resources to conduct ‘prior art’ searches; the required standards of inventiveness being applied to patent applications may be too low; or the companies or scientific institutions applying for the patents may deliberately fail to cite the prior art upon which their inventions were based.
Groups such as ETC claim to have uncovered many cases either of patents being acquired for ‘inventions’ that are closely based on TK (such as the pesticidal uses of seeds from the neem tree), or of Plant Breeders’ Rights (PBR) certificates — a kind of IPR system for plant varieties — being awarded for plant varieties that are virtually identical to ‘folk varieties’ of the same plants. ETC Group claims to have identified over 100 cases of PBR protection being sought for varieties acquired from international genebanks, many of which they allege are folk varieties that have been subjected to little, if any, additional breeding. 
The bioprospecting/’biopiracy’ debate has pitted corporations against a number of developing country governments and indigenous peoples, who claim that they are being exploited by such practices. It has also led to tensions between academic researchers, who have long studied biological resources for primarily scientific reasons — and maintain that ethically sound and non-exploitative bioprospecting is possible — and environmental NGOs.  Indeed, some of the latter take an extreme view, dismissing all bioprospecting as biopiracy by another name.
Patenting traditional knowledge
In principle, application of intellectual property rights to biological resources should not be exploitative, as anyone has the right to apply for — and enjoy the fruits of — an invention based on a biological discovery. In practice, however, patent rules tend to favour corporations rather than indigenous communities. A native healer, for example, may have developed a therapeutic plant extract or herbal formulation. But acquiring a patent for it would be extremely difficult, first because applications usually require inventions to be described in technical language, and secondly because the cost of applying for a patent is likely to be prohibitive.
At the same time, while most TK cannot be patented due to lack of novelty, some researchers argue that they have added an ‘inventive step’ that makes their version of a product patentable. Such arguments are frequently accepted as legitimate by patent offices. For example, the pharmaceutical giant Pfizer has obtained a licence to manufacture the anti-obesity drug P57 — the active ingredient of the Hoodia cactus — originally patented by the South African Council for Scientific and Industrial Research (CSIR). In March 2002 — after threatened legal action — the CSIR reached a preliminary agreement to share any benefits arising from the commercialisation of P57 with San bushmen, who claim they have been using the cactus to stave off hunger for thousands of years. 
Challenges to patents on TK have been successful in the past. For example, in May 2000, the European Patent Office revoked a patent covering the fungicidal properties of neem tree seeds due to the absence of an inventive step. And a US patent awarded in 1995 to the University of Mississippi for the use of turmeric powder in wound healing — a property well-known in India — was revoked following a legal challenge by the Indian government.
Ironically, the challenge to the turmeric patent would not have succeeded if it had relied on the argument that the ‘invention’ was common knowledge in India, since US patent rules do not recognise foreign undocumented knowledge as ‘prior art’ if it is not also known in the United States. It was only when the Indian government provided written proof (including an ancient Sanskrit text) that the patent was revoked due to lack of novelty. 
Rules on the eligibility of ‘novel’ biological material for patent protection are quite demanding. Usually it is not sufficient simply to describe how a plant compound exerts a therapeutic effect, or even what this compound is. Meeting requirements of ‘novelty’ and ‘inventive step’ — or ‘non-obviousness’ in the United States — means that the applicant usually needs to produce at least a synthetic version of the compound or a purified extract. On these grounds, many scientists deny most — if not all — allegations of biopiracy, arguing that the patent is intended to reward the extra work necessary to produce a patentable invention from a biological resource, not the initial discovery of the resource itself.
Critics, however, challenge this argument by claiming that the most creative achievement was frequently the initial discovery of the useful characteristic of the resource by indigenous community members, as well as their development of techniques and procedures to apply it. The subsequent isolation and elucidation of the active compound by laboratory scientists, they argue, can be relatively routine tasks. In addition, they point out that some national patent offices do not conduct thorough examinations of patent applications. Consequently, patents that do not describe genuine inventions are sometimes granted mistakenly.
Legislating to protect indigenous communities
In recent years, these issues have been debated in several international forums under the auspices, for example, of the Convention on Biological Diversity, the World Trade Organisation, the World Intellectual Property Organisation (WIPO), and the UN Food and Agriculture Organisation.
A number of policy measures are being considered to ensure that bioprospecting is regulated in ways that benefit all the stakeholders. Proposed measures include the introduction of ‘access and benefit sharing’ legislation that require bioprospectors to negotiate access to genetic resources with governments and indigenous peoples, and to share any financial benefits from these activities with such communities. The Philippines, for example, already has such legislation. 
In addition, several countries, such as India, have proposed that patent applications for inventions resulting from bioprospecting expeditions should indicate the source of biological material on which the invention was based, and also include documentary evidence that the provider country had given its prior informed consent to the collection.  In fact, Costa Rica and member states of the Andean Community (Bolivia, Colombia, Ecuador, Peru and Venezuela) already include both requirements in their legislation.
Another approach has been for individual countries to develop legislation specifically designed to protect indigenous knowledge, which is currently largely excluded from patenting on the grounds of lacking novelty. This might be done, for example, by documenting TK that is not publicly available and providing access in exchange for monetary and other benefits. Peru has recently passed legislation based upon such an approach. 
It remains uncertain where international debates on this issue are heading. But international organisations increasingly consider it necessary to provide forums to discuss appropriate solutions. WIPO, for example, established an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore in 2000. And the state parties to the CBD have set up a new body, the Working Group on Access and Benefit Sharing, which first met in Bonn in October 2001.
All parties are hoping that such meetings will be able to develop ways of reconciling the often conflicting scientific, commercial and social implications of bioprospecting. Equally, all agree that achieving this goal will not be easy.
The author is based at the Queen Mary Intellectual Property Research Institute, University of London.
(update by editor, 2012: Graham Dutfield is now at Leeds)