USPTO Releases 2018 Performance and Accountability Report; Guest Blog by Chief Financial Officer Tony Scardino, January 31, 2019

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Thursday Jan 31, 2019 

 

USPTO Releases 2018 Performance and Accountability Report 

Guest Blog by Chief Financial Officer Tony Scardino

"I’m pleased to announce that the USPTO has published its Performance and Accountability Report (PAR) for fiscal year (FY) 2018. The PAR serves as the USPTO’s annual report, similar to what private sector companies prepare for their shareholders. Each year the USPTO publishes this report to update the public on our performance and financial health.

Our FY 2018 PAR charts the agency’s progress toward meeting goals outlined in our 2014-2018 Strategic Plan: optimizing patent quality and timeliness; optimizing trademark quality and timeliness; and providing domestic and global leadership to improve intellectual property policy, protection, and enforcement worldwide. In addition, the PAR provides information on the USPTO’s progress towards a broader management goal:  achieving organizational excellence.  These goals drive the quality and quantity of our service to intellectual property stakeholders over the last five years.

Quote by President Abraham Lincoln on the patent system, as displayed on the Herbert C. Hoover federal building in Washington D.C., headquarters of the U.S. Department of Commerce

While the PAR is a record of our achievements, it is also an honest discussion of the challenges we face as an agency moving forward under our new 2018-2022 Strategic Plan, which was published in November. We will continue efforts to issue predictable and reliable patents; continue implementation of the patent dispute resolution portions of the America Invents Act (AIA), including ensuring that procedures and standards are balanced and predictable; monitor and help address dynamic IP issues in Congress and the Courts; maintain the high and sustained trademark performance level in the face of significant trademark application growth rates; improve the customer experience and develop outreach at both headquarters and regional offices; expand on dissemination of data; maintain sustainable funding; and ensure our IT systems enable our nationwide workforce to serve our customers with a “24/7/365” operational capability.

Here at the USPTO, we take pride in producing a PAR that meets the highest standards of transparency, quality, and accountability. The PAR contains a wealth of data and historical information of interest to our stakeholders, including data on patent and trademark examining activities, application filings, and agency staffing levels. This information is conveniently presented in the workload tables section at the end of the PAR.

On the issue of financial performance, FY 2018 marks the 26th consecutive year that the USPTO’s financial statements have received an unmodified audit opinion. Our clean audit opinion gives the public independent assurance that the information presented in the agency’s financial statements is fairly presented and follows generally accepted accounting principles. The auditors did note a deficiency in our internal controls related to managing and configuring IT system access. We have already begun developing plans to address the auditor’s concerns. Despite this deficiency, the auditor found no material weaknesses in the USPTO’s internal controls, and no instances of non-compliance with laws and regulations affecting the financial statements.

The PAR is a faithful snapshot of the USPTO’s FY 2018 performance. I hope you find value in this document, and that it allows you to glean greater insights into the agency’s activities and achievements."

The Role Of The Centre For Data Ethics And Innovation - What It Means For The UK; Mondaq, January 22, 2019

Jocelyn S. Paulley and David Brennan, Gowling WLG, Mondaq; The Role Of The Centre For Data Ethics And Innovation - What It Means For The UK

"What is the CDEI's role?

The CDEI will operate as an independent advisor to the government and will be led by an independent board of expert members with three core functions³:

• analysing and anticipating risks and opportunities such as gaps in governance and regulation that could impede the ethical and innovative deployment of data and AI;
• agreeing and articulating best practice such as codes of conduct and standards that can guide ethical and innovative uses of AI; and
• advising government on the need for action including specific policy or regulatory actions required to address or prevent barriers to innovative and ethical uses of data.

As part of providing these functions, the CDEI will operate under the following principles;

• appropriately balance objectives for ethical and innovative uses of data and AI to ensure they deliver the greatest benefit for society and the economy;
• take into account the economic implications of its advice, including the UK's attractiveness as a place to invest in the development of data-driven technologies;
• provide advice that is independent, impartial, proportionate and evidence-based; and
• work closely with existing regulators and other institutions to ensure clarity and consistency of guidance

The CDEI's first project will be exploring the use of data in shaping people's online experiences and investigating the potential for bias in decisions made using algorithms. It will also publish its first strategy document by spring 2019 where it will set out how it proposes to operate with other organisations and other institutions recently announced by the government, namely the AI Council and the Office for AI."

So Much TV, Too Little IP Yields Writers Rich Rewards; Variety, January 31, 2019

Elaine Low, Variety; So Much TV, Too Little IP Yields Writers Rich Rewards

"The sheer volume of television out there is changing how precious intellectual property is foraged, acquired and ultimately used."

UN agency finds US, Asian companies seek most AI patents; Associated Press, January 31, 2019

Associated Press; UN agency finds US, Asian companies seek most AI patents

"The U.N.’s intellectual property organization says companies in Japan, South Korea and the U.S. are the top filers of patent applications involving artificial intelligence.

The World Intellectual Property Organization has issued a first report aiming to show trends in AI, seen as a growth area in coming years, although still a tiny fraction of all patent applications each year.

WIPO said Thursday that machine learning is the dominant AI technique disclosed in patents."

US Trademark Office Approves Application To Register The Shape Of A Burger; Mondaq, January 31, 2019

Donna A. Tobin, Mondaq; US Trademark Office Approves Application To Register The Shape Of A Burger

"The U.S. Patent and Trademark Office ("USPTO")  recently approved registration of the irregular shape of a hamburger patty as a trademark, meaning that the owner of the mark, Bubba Foods LLC (Bubba's) had made a sufficient showing to the USPTO that the below shape of its burger was not functional and that the shape itself serves to identify Bubba Burgers as the source of  burgers so shaped. 

Such marks, known as "product configuration marks" are less common than more typical trademarks, such as names, slogans or logos. However, while the process is not an easy one, such non- traditional trademarks, which can also protect aspects of a product such as smells, sounds and the appearance of a retail establishment, can confer powerful rights on an owner."

Game of Life Copyright Dispute Meets 'Day of Reckoning'; Law.com, January 30, 2019

Scott Graham, Law.com; Game of Life Copyright Dispute Meets 'Day of Reckoning'

"Markham died in 1993. His heirs sued in 2015, invoking a provision of the Copyright Act of 1976 that allows authors to terminate licenses after 56 years in certain circumstances.

But that provision excludes works for hire, and Smith concluded that the Game of Life is a work for hire that was commissioned by Klamer and produced by Markham’s company. “The weight of the evidence in this case is that the success that met the Game of Life was, in fact, nothing if not the result of collective effort,” Smith concluded. “And although the credit, in the colloquial sense, can be split pro rata, the law dictates that the copyrights cannot be.”"

Second China-Bound Apple Car Worker Charged With Data Theft; Bloomberg, January 30, 2019

Kartikay Mehrotra and Mark Gurman,

Bloomberg; Second China-Bound Apple Car Worker Charged With Data Theft

"An Apple Inc. hardware engineer was charged by the U.S. with stealing the iPhone maker’s driverless car secrets for a China-based company, the second such case since July amid an unprecedented crackdown by the Trump administration on Chinese corporate espionage...

As President Donald Trump ratcheted up his trade war with China, the Justice Department in November announced a “China Initiative” aimed at prioritizing trade-theft cases and litigating them as quickly as possible.

San Francisco prosecutors have brought trade-secret theft cases against Chinese nationals who worked for companies as diverse as Micron Technology Inc., a memory chipmaker, and drug maker Genentech Inc. This week, the U.S. charged Huawei Technologies Co., China’s largest telecommunications company, with stealing secrets from its American partner, T-Mobile US Inc."

US hammers Huawei with 23 indictments for alleged trade secret theft, fraud; CNet, January 29, 2019

Abrar Al-Heeti, CNet; US hammers Huawei with 23 indictments for alleged trade secret theft, fraud

"The US Department of Justice on Monday charged Huawei with theft of trade secrets, wire fraud and obstruction of justice.

A 10-count indictment alleges that China's Huawei stole trade secrets from US carrier T-Mobile beginning in 2012. Huawei also allegedly offered bonuses to employees who stole confidential information from companies. In addition, a 13-count indictment charged four defendants, including Huawei and Chief Financial Officer Meng Wanzhou, with financial fraud. The indicted defendants also include affiliates Huawei USA and Skycom.

"The charges unsealed today clearly allege that Huawei intentionally conspired to steal the intellectual property of an American company in an attempt to undermine the free and fair global marketplace," said FBI Director Christopher Wray in a statement. "To the detriment of American ingenuity, Huawei continually disregarded the laws of the United States in the hopes of gaining an unfair economic advantage.""

Video and audio from my closing keynote at Friday's Grand Re-Opening of the Public Domain; BoingBoing, January 27, 2019

Cory Doctorow, BoingBoing; Video and audio from my closing keynote at Friday's Grand Re-Opening of the Public Domain

"On Friday, hundreds of us gathered at the Internet Archive, at the invitation of Creative Commons, to celebrate the Grand Re-Opening of the Public Domain, just weeks after the first works entered the American public domain in twenty years.
 
I had the honor of delivering the closing keynote, after a roster of astounding speakers. It was a big challenge and I was pretty nervous, but on reviewing the saved livestream, I'm pretty proud of how it turned out.

Proud enough that I've ripped the audio and posted it to my podcast feed; the video for the keynote is on the Archive and mirrored to Youtube.

The whole event's livestream is also online, and boy do I recommend it."

Copyright Office identifies visual arts copyright problems, solutions; Lexology, January 24, 2019

Thompson Coburn LLP - Mark Sableman, Lexology; Copyright Office identifies visual arts copyright problems, solutions

 

"Our forms are antiquated and difficult to use. Our definition of “publication” is important but hard to understand and apply. Our process for enforcing rights is tedious, costly, and time consuming.

 

Those are key takeaways from a report by the Copyright Office to Congress about visual works copyrights. And that’s not all of the bad news. In addition to deficiencies in its own processes, the Copyright Office reported the hardly surprising conclusion that people on the Internet often misuse copyrighted works and mislead users about copyright...

 

The report, titled “Copyright and Visual Works: The Legal Landscape of Opportunities and Challenges,” concerns a recent “holistic analysis of the copyright landscape in which visual artists must work.” Based on comments from industry and the public, the Copyright Office identified three major challenges for visual artist copyrights: the registration process, licensing, and enforcement."

Shazam! Vs. Captain Marvel: The Bizarre Battle Over a Name; Comic Book Resources, January 27, 2019

Brian Cronin, Comic Book Resources; Shazam! Vs. Captain Marvel: The Bizarre Battle Over a Name

"Eventually, most fans will only known [sic] the hero formerly known as Captain Marvel as Shazam. It's a bit of a shame, but that's how the intellectual property rights fell."

How the public domain offers new life to these poetry classics; PBS NewsHour, January 21, 2019

PBS NewsHour; How the public domain offers new life to these poetry classics

"Literary works in the public domain have inspired countless homages, spinoffs and reimaginings. Broadway hit musical “Wicked” was based on Frank L. Baum’s “The Wonderful Wizard of Oz,” which entered the public domain in 1956. New York Times bestseller “Pride and Prejudice and Zombies” mixed 2009’s undead craze with Jane Austen’s 18th-century romantic comedy. Tony-award winner Lin Manuel Miranda used several public domain works in “Hamilton,” avoiding copyright infringement for his contemporary take on one of the Founding Fathers.

For more on the various ways the public domain serves today’s poets, writers and other literary fans, the PBS NewsHour interviewed Adam Green, editor-in-chief of The Public Domain Review, Robert Casper, head of the Library of Congress’ Poetry and Literature Center, and Karyn A. Temple, director of the library’s U.S. Copyright Office. 

These conversations have been combined and edited for length. A list of works entering the public domain in 2019 is available here."

Viral Is Still Copyrighted, Even to Learn Where Trump Is; Lexology, January 18, 2019

Finnegan, Henderson, Farabow, Garrett & Dunner LLP - Joseph Myles and Margaret A. Esquenet, Lexology; Viral Is Still Copyrighted, Even to Learn Where Trump Is

"While attending his friend’s wedding at the Trump National Golf Club in New Jersey in June 2017, Jonathan Otto took a photograph of a certain wedding crasher: the president himself...

The case continues towards trial, but with a number of the most important issues now decided in Otto’s favor."

Trademark Fight Over Vulgar Term’s ‘Phonetic Twin’ Heads to Supreme Court; The New York Times, January 21, 2019

Adam Liptak, The New York Times; Trademark Fight Over Vulgar Term’s ‘Phonetic Twin’ Heads to Supreme Court

"The Supreme Court apparently thinks the question is more complicated, as it agreed this month to hear the government’s appeal. If nothing else, the court can use Mr. Brunetti’s case to sort out just what it meant to say in the 2017 decision, which ruled for an Asian-American dance-rock band called the Slants. (The decision also effectively allowed the Washington Redskins football team to register its trademarks.)

The justices were unanimous in ruling that the prohibition on disparaging trademarks violated the First Amendment. But they managed to split 4 to 4 in most of their reasoning, making it hard to analyze how the decision applies in the context of the ban on scandalous terms."

Autocomplete suggestions: Did you mean 'copyright infringement'?; Lexology, January 10, 2019

MinterEllison - Nadia Braad and Ruby Ramachandran, Lexology; Autocomplete suggestions: Did you mean 'copyright infringement'?

"We won't be likely to see a Court consider this particular topic until the value of the copyright is sufficient for a copyright owner to challenge a search engine over the autocomplete suggestions. In the fast paced world of technology, this may not be far away."

Trump’s bizarre statement on China dishonors us all; The Washington Post, January 11, 2019

Dana Milbank, The Washington Post; Trump’s bizarre statement on China dishonors us all

"Asked an unrelated question on the White House South Lawn on Thursday, Trump volunteered a comparison between Speaker Nancy Pelosi (D-Calif.) and Senate Minority Leader Charles E. Schumer (D-N.Y.) — and the leaders of the People’s Republic of China.

“I find China, frankly, in many ways, to be far more honorable than Cryin’ Chuck and Nancy. I really do,” he said. “I think that China is actually much easier to deal with than the opposition party.”

China, honorable?

China, which is holding a million members of religious minorities in concentration camps for “reeducation” by force?

China, which, according to Trump’s own FBI director, is, by far, the leading perpetrator of technology theft and espionage against the United States and is “using illegal methods” to “replace the U.S. as the world’s leading superpower”?

China, whose state-sponsored hackers were indicted just three weeks ago and accused of a 12-year campaign of cyberattacks on this and other countries?

China, whose ruling Communist Party has caused the extermination of tens of millions of people since the end of World War II, through government-induced famine, the ideological purges of the Cultural Revolution, and in mowing down reformers in Tiananmen Square?

Trump has a strange sense of honor. In April, he bestowed the same adjective on the world’s most oppressive leader, North Korea’s nuclear-armed dictator: “Kim Jong Un, he really has been very open and I think very honorable from everything we’re seeing.”

Now, the president is declaring that China’s dictatorship, by far the world’s biggest international criminal and abuser of human rights and operator of its most extensive police state, is more honorable than his political opponents in the United States.

In Trump’s view, your opponents are your enemies — and your actual enemies are your friends. How can you negotiate with a man who thinks like this?"

A Grand Re-Opening of the Public Domain by Internet Archive and Creative Commons: January 25, 2019

A Grand Re-Opening of the Public Domain

by Internet Archive and Creative Commons

 

 

"Description 

Please join us on Friday, January 25, 2019 for a grand day celebrating the public domain!
Co-hosted by the Internet Archive and Creative Commons, this celebration will feature a keynote addresses by Lawrence Lessig and Cory Doctorow, lightning talks, demos, multimedia displays and more to mark the “re-opening” of the public domain in the United States. The event will take place at the Internet Archive in San Francisco.

Schedule of Events:

10am: Doors & Registration
10-11:45: Interactive public domain demos and project stations with organizations including Creative Commons, Internet Archive, Wikipedia, Authors Alliance, Electronic Frontier Foundation, California Digital Library, Center for the Study of the Public Domain, LightHouse for the Blind and Visually Impaired, the Cleveland Art Museum, and many more!
11:45-1pm: Lunch on your own in the Richmond District
1pm-6pm: Program of keynote speakers, lightning talks and panels highlighting the value and importance of the public domain
6pm-7:30pm: Reception

Speakers/Panelists Include:

Lawrence Lessig - Harvard Law Professor
Cory Doctorow - Author & Co-editor, Boing-Boing
Pam Samuelson - Berkeley Law Professor
Paul Soulellis - Artist & Rhode Island School of Design Professor
Jamie Boyle - Duke Law Professor & Founder, Center for the Study of the Public Domain
Brewster Kahle - Founder & Digital Librarian, Internet Archive
Corynne McSherry - Legal Director, Electronic Frontier Foundation
Ryan Merkley - CEO, Creative Commons
Jennifer Urban - Berkeley Law Professor
Joseph C. Gratz - Partner, Durie Tangri
Jane Park - Director of Product and Research, Creative Commons
Cheyenne Hohman - Director, Free Music Archive
Ben Vershbow - Director, Community Programs, Wikimedia
Jennifer Jenkins - Director, Center for the Study of the Public Domain
Rick Prelinger - Founder, Prelinger Archives
Amy Mason - LightHouse for the Blind and Visually Impaired
Paul Keller - Communia Association
Michael Wolfe - Duke Lecturing Fellow, Center for the Study of the Public Domain
Daniel Schacht - Co-chair of the Intellectual Property Practice Group, Donahue Fitzgerald LLP"

Will the world embrace Plan S, the radical proposal to mandate open access to science papers?; Science, January 3, 2019

Tania Rabesandratana, Science; Will the world embrace Plan S, the radical proposal to mandate open access to science papers?

""In the OA movement, it seems to a lot of people that you have to choose a road: green or gold or diamond," says Colleen Campbell, director of the OA2020 initiative at the Max Planck Digital Library in Munich, Germany, referring to various styles of OA. "Publishers are sitting back laughing at us while we argue about different shades" instead of focusing on a shared goal of complete, immediate OA. Because of its bold, stringent requirements, she and others think Plan S can galvanize advocates to align their efforts to shake up the publishing system...

"The combined weight of Europe and China is probably enough to move the system," says astrophysicist Luke Drury, of the Dublin Institute for Advanced Studies and the lead author of a cautiously supportive response to Plan S by All European Academies, a federation of European academies of sciences and humanities.

If Plan S does succeed in bringing about a fairer publishing system, he says, a transition to worldwide OA is sure to follow. "Somebody has to take the lead, and I'm pleased that it looks like it's coming from Europe.""

January 1, 2019 is (finally) Public Domain Day: Works from 1923 are open to all!; Center for the Study of the Public Domain, January 2019

Center for the Study of the Public Domain;

January 1, 2019 is (finally) Public Domain Day: Works from 1923 are open to all!

"For the first time in over 20 years, on January 1, 2019, published works will enter the US public domain.1 Works from 1923 will be free for all to use and build upon, without permission or fee. They include dramatic films such as The Ten Commandments, and comedies featuring Charlie Chaplin, Buster Keaton, and Harold Lloyd. There are literary works by Robert Frost, Aldous Huxley, and Edith Wharton, the “Charleston” song, and more. And remember, this has not happened for over 20 years. Why? Works from 1923 were set to go into the public domain in 1999, after a 75-year copyright term. But in 1998 Congress hit a two-decade pause button and extended their copyright term for 20 years, giving works published between 1923 and 1977 an expanded term of 95 years.2
But now the drought is over. How will people celebrate this trove of cultural material? Google Books will offer the full text of books from that year, instead of showing only snippet views or authorized previews. The Internet Archive will add books, movies, music, and more to its online library.

HathiTrust has made over 50,000 titles from 1923 available in its digital library. Community theaters are planning screenings of the films. Students will be free to adapt and publicly perform the music. Because these works are in the public domain, anyone can make them available, where you can rediscover and enjoy them. (Empirical studies have shown that public domain books are less expensive, available in more editions and formats, and more likely to be in print—see here, here, and here.) In addition, the expiration of copyright means that you’re free to use these materials, for education, for research, or for creative endeavors—whether it’s translating the books, making your own versions of the films, or building new music based on old classics.

Here are some of the works that will be entering the public domain in 2019. A fuller (but still partial) listing of over a thousand works that we have researched can be found here. (You can click on some of the titles below to get the newly public domain works.)"

Supreme Court to decide if trademark protection can be denied to ‘scandalous’ brands; The Washington Post, January 4, 2019

Robert Barnes, The Washington Post; Supreme Court to decide if trademark protection can be denied to ‘scandalous’ brands

"The Supreme Court agreed Friday to review a new front in the battle over free speech and will decide whether trademark protection can be refused to brands the federal government finds vulgar or lewd.

The case involves a decision of the U.S. Patent and Trademark Office to deny trademark registration to a clothing line called FUCT.

The U.S. Court of Appeals for the Federal Circuit struck down the century-old ban on protecting “scandalous” and “immoral” trademarks as a First Amendment violation, and the Department of Justice wants the Supreme Court to reverse the decision...

The case,Iancu v. Brunetti , will probably be heard at the Supreme Court in April."

Freed From Copyright, These Classic Works Are Yours To Adapt; NPR, January 5, 2019

Milton Guevara, NPR; Freed From Copyright, These Classic Works Are Yours To Adapt

""Copyright has been overextended so many times, largely at the behest of major copyright holders," says author Naomi Novik. "Even though what that actually does is inhibit people from creating new works and sharing these older works." Novik is a founding member of the Organization for Transformative Works, a nonprofit that focuses on preserving fan fiction and art — that is, work created by fans, based on characters and worlds from their favorite written works, film, and TV, which can occasionally come into conflict with copyright law.

"For a character to live, that character has to belong to the audience," says Novik. "Works of art are meant to nourish our collective understanding; they're meant to nourish our conversation." 

Duke Law's entire list of works that entered the public domain this year can be found here."

'The drought is over': mass US copyright expiry brings flood of works into public domain; The Guardian, January 2, 2019

Alison Flood, The Guardian;

'The drought is over': mass US copyright expiry brings flood of works into public domain

 

"“The drought is over,” proclaims Duke Law School’s Center for the Public Domain, highlighting some of the works which are now available royalty-free, by authors from Edgar Rice Burroughs to Kahlil Gibran, PG Wodehouse to DH Lawrence, Edith Wharton to EE Cummings. It’s not only books: copyright in the US is also expiring on a host of films, paintings and music.

 

“The public domain has been frozen in time for 20 years, and we’re reaching the 20-year thaw,” the center’s director Jennifer Jenkins told the Smithsonian. The magazine predicted that the release’s impact on culture and creativity could be huge, because “we have never seen such a mass entry into the public domain in the digital age”. Brewster Kahle, founder of the Internet Archive, told the Smithsonian: “We have shortchanged a generation. The 20th century is largely missing from the internet.”"

We Are! ... Happy Valley? Penn State applies for trademark on moniker; The Pittsburgh Post-Gazette, January 2, 2019

Bill Schackner, The Pittsburgh Post-Gazette; We Are! ... Happy Valley? Penn State applies for trademark on moniker

"Josh Gerben, a trademark attorney in Washington, D.C., tweeted about the Penn State application Dec. 28, calling it a “trademark ‘land grab.’”

He said Happy Valley should remain in the public domain, since the university did not create the expression and the words are used broadly in Pennsylvania and elsewhere. He said others should be able to profit from it.

“It’s a generally accepted term for a geographic area in which the university happens to reside,” he said. “It seems out of place for the university to come in and say they should be the exclusive provider of Happy Valley clothing throughout the country. That’s exactly what they are asking to do.”"

Mickey Mouse and Batman will soon be public domain—here’s what that means; Ars Technica, January 1, 2019

Timothy B. Lee, Ars Technica; Mickey Mouse and Batman will soon be public domain—here’s what that means

"Until recently, I assumed that the same interest groups would try to extend copyright terms again in 2018. But the political climate for copyright legislation has changed radically over the last 20 years.

A year ago, Ars Technica broke the news that three of the nation's most powerful rights holder groups in the country, the Motion Picture Association of America, the Recording Industry Association of America, and the Authors Guild, were not even going to try to pass legislation extending copyrights.

"It's not something we are pursuing," an RIAA spokesman told me.

The reason was simple, Grimmelmann argues: they knew they weren't going to win."