The '08 Candidates and IP

It looks like the the Patent Reform Act (House version and Senate version) is stalled in the Senate, so we may not get to see how the 2008 Presidential Candidates will vote on it. Still, all of us IP loving folks may wonder if the candidates have publicly taken any positions on intellectual property.

Of the remaining major candidates, (Hillary Clinton, John McCain, and Barack Obama by my estimation) Obama seems to me to be the only one to have a neat, focus set of intellectual property positions posted on his website. Fortunately for us, CNET sent a questionnaire to all of the candidates in order to create their Technology Voter's Guide, and included in that questionnaire is a question about the Digital Millennium Copyright Act. None of the candidates really provided a stellar answer, but I think their attitudes towards this hot-button issue may provide a little insight.

Here's the DMCA question:

The 1998 Digital Millennium Copyright Act's section restricting the "circumvention" of copy protection measures is supported by many copyright holders but has been criticized by some technologists as hindering innovation. Would you support changing the DMCA to permit Americans to make a single backup copy of a DVD, Blu-ray Disc DVD, HD DVD, or video game disc they have legally purchased?

And here are the responses, alphabetically by candidate's last name:

Hillary Clinton's response:

Strong copyright protections and efforts to stem piracy are critical to ensuring that our technology industries remain competitive in the global market. As we go forward, I would support a review of a range of issues related to the Digital Millennium Copyright Act insofar as it did not concern degrading copyright protections or encourage copyright infringement.

John McCain's response:

The Internet and digital technology have provided widespread access to enormous quantities of information. This, in turn, made it necessary to update our copyright laws in 1998 to protect the rights of copyright holders to keep pace with the technological advances that characterize the Information Age.

As digitization of commerce, education, entertainment, and a host of other online applications proceeds, international copyright agreements have to be maintained and updated while protecting the rights of copyright owners.

I believe now, as I did then, that knowledge and ideas are central parts of what make the U.S. economy productive and competitive. It is vital that this intellectual property be protected and defended. However, we must ensure that such protections are never so onerous as to stifle the very innovation they strive to safeguard.

Barack Obama's response:

I would support, in concept, allowing Americans to make a single backup copy of a digital product they have purchased. And I think the market is moving in the direction of greater consumer freedom.

As policymakers, we are in a constant process of examining our laws to ensure that the protections we place on intellectual property are sufficient to encourage invention without hindering innovation that builds on previous work or unfairly limiting consumers from using the goods they purchase in a way that is fair to creators.

I would guess that the next administration will be dealing a lot with intellectual property, so here's hoping that the nominees will be asked some more tough questions about it during the debates leading up to the election.

IP and the Olympic Games

There was a pretty well-attended demonstration outside the Main Library yesterday marking the arrival of the Olympic Torch in San Francisco, the only U.S. stop on the torch relay route.

I won't touch the issues surrounding the protest in this space. But the local presence of such a recognizable emblem got me thinking intellectual property. Is the torch patented? Who owns the rights to the "Olympics" name? The ring insignia?

I decided to commit the time it takes to drink of a cup of coffee this morning to seeking the answers. I searched TESS, the U.S. trademark database. I search the USPTO patent database. I search for international patents through esp@cenet. I came up with nothing.

I eventually found an answer in the United States Code. It would appear that Congress extends special protection to marks associated with the Olympics. (You may have noticed that there is no picture accompanying this post. I'm not taking any chances with Congress!) Here's an excerpt from 36 USC 220506:

(a) Exclusive Right of Corporation.— Except as provided in subsection (d) of this section, the corporation has the exclusive right to use—

(1) the name “United States Olympic Committee”;

(2) the symbol of the International Olympic Committee, consisting of 5 interlocking rings, the symbol of the International Paralympic Committee, consisting of 3 TaiGeuks, or the symbol of the Pan-American Sports Organization, consisting of a torch surrounded by concentric rings;

(3) the emblem of the corporation, consisting of an escutcheon having a blue chief and vertically extending red and white bars on the base with 5 interlocking rings displayed on the chief; and

(4) the words “Olympic”, “Olympiad”, “Citius Altius Fortius”, “Paralympic”, “Paralympiad”, “Pan-American”, “America Espirito Sport Fraternite”, or any combination of those words.

The exemptions in subsection (d) allow use of the word "Olympic" by people who have used it since before 1950 and by people in western Washington (I'm not kidding).

The punishment for infringement is the same as that of a normal trademark (I assume that means it would be decided in court). I wonder, then, why the U.S. Olympic Committee gets special protection. Maybe they're too busy to remember to renew registration?

Recipes: Copyright or Patent?

There's usually only one reason people come to the Government Information Center to learn about recipes, and it's not to get cooking tips (although a I've heard good things about the Army's biscuit recipe).

Generally, people are interested to know what kind of intellectual property rights they have when they create a recipe. It's an interesting question -- can you copyright food? What about a patent?

It really depends. Since I'm a librarian and not a lawyer, I can't give affirmative advice, so I usually recommend that people do some reading about copyright and patents. That advice isn't a cop-out, though. The guidelines for patents and copyrights are generally short on concrete statements, as in "you can copyright this" or "you can't patent that." Do some research - if the intellectual property protection fits, then wear it.

There are some instances where companies choose to never seek IP protection. Why? Because registering either a patent or a copyright requires disclosure and only offers protection for a limited time. (Think Coca-Cola, the recipe for which is probably the most talked-about trade secret in the world.)

So what if you're a home cook and you've struck gold with your recipe but don't have the resources to bring it to market yourself? Can you pitch it to the big companies without fear of their stealing it?

For anything to qualify for copyright protection, it has to have some aspect of creativity. It doesn't have to be much...the Copyright Office isn't in a position to tell you that your poetry is derivative or that your painting is boring. There is, however, a minimum requirement that may exclude some recipes from qualifying for copyright. Stephan Fishman writes about this in The Copyright Handbook:

...[T]here are some types of works that are usually deemed to contain no creativity at all. For example, a mere listing of ingredients, or contents, such as in a recipe, is considered to be completely lacking in creativity and is not protectable (but explanatory material or other original expression in a recipe or other list is protectable). from Fishman, Stephan. "The Copyright Handbook." Berkeley: Nolo Press, 2006. pg. 124-125 (at SFPL)

So your potatoes, parsnips, persimmons, and whatever else you put together to make a dish probably can't be protected by copyright. But the way you write the recipe may. Which would mean that you couldn't stop people from making your recipe but you could stop them from copying it verbatim and distributing it the way you wrote it. That probably won't go too far in protecting a recipe.

A patent gives the owner rights to keep people from producing the patented item, which means a person holding a patented recipe could conceivably keep people from using the recipe to cook dinner. Patent Class 426 covers "Food or Edible Material: Processes, Compositions, and Products." So there's a class for food products, which means we know that you can patent a recipe.

There are a couple of things to consider before going to the expense of patenting a recipe, though. First, how will you enforce the patent? Remember that a patent is an offensive right, meaning that it's up to the owner to seek out infringers and seek damages in court. This would be easy enough if you could prove that McDonald's was marketing your potato salad recipe. But what about people in their home kitchens? It may not be practical to enforce a recipe patent.

Second, will the patent even be granted? An invention has to be original and produce a new or unexpected result to be granted a patent. Is the result of your combination of ingredients and the process of cooking a surprise? Take a look at David Pressman's example from Patent it Yourself:

Lou comes up with a way to make mustard-flavored hot dog buns -- admix powdered mustard with the flour. Even though Lou's recipe is novel, the PTO will almost certainly hold it to be obvious to a PHOSITA ["person having the ordinary skill in the art," a standard in patent examining] since the result of the new combination was entirely forseeable and expected. from Pressman, David. "Patent it Yourself." Berkeley: Nolo Press, 2006. pg. 106 (at SFPL)

It's tricky! That unobvious requirement can be hard to predict. I always start with a Google search to see if there's any evidence of someone else working on something similar. There often is, which means a dead end for any intellectual property protection.

There are lots of factors to consider before you try to protect a recipe, maybe more than there would be for a new widget or a new novel.

As always, anyone who is serious about pursuing intellectual property protect would do well to consult an attorney or agent. Or, at the very least, check out some of the resources at the Patent and Trademark Center.