BP/G Radio Intellectual Property Podcast

With the economy in an apparent freefall and the U.S. on the verge of regime change, we figured it was time to lighten things up and talk about …..  Rock and Roll!  So we assembled a panel of folks in the rock business at the Acadia Café in Minneapolis (www.acadiacafe.com) for a spirited discussion on the intersection of music and IP – band brands and domain names, performing rights organizations, Girl Scout sing-alongs, user-generated radio, and BTO covers.  Here’s the panel – and certainly an appropriate group for the presidential transition team:  Keefe Russell – bass player for the Capital Sons (www.capitalsons.com); Justin Grammens – co-founder of internet radio company LocalTone Systems and former drummer of Radio 5 (www.localtoneradio.com); Phil Wilson – co-founder of LocalTone Systems and former program manager at 104.1 Jack FM; and our esteemed host, Ted Lowell, co-owner of the Acadia – purveyor of independent musical sounds and killer beer.  We wanted the Mood Swings too (www.myspace.com/themoodswings), but maybe next time.  So sit back, crack a beverage of choice and listen to this Rock ‘n Roll IP Head Check.

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Hope springs eternal in the minds and hearts of budding novelists everywhere that one day . . . they will be published.  And finally the world will know who they are and read their work.  The point at which the product of creativity (and years of toil) intersects with the pushy business of book publishing is a moment of peril.  Many novelists (or musicians) get dazzled by the first deal put before them.  Frankly, getting to the point where someone is offering you any kind of real publishing deal (as opposed to self-publishing contract) is winning a lottery.  But – as David Fulmer, popular author of Chasing the Devil’s Tail and other literary mysteries (www.davidfulmer.com), warns, this is a game, and authors (especially first-time) can lose if they don’t know the business realities of publishing.  The publisher needs to sell books and make money and is not going to look out for the best interests of the author.  By the time you (the author) learn what digital rights or Chinese sub-rights are, it may be too late. 

So why not skip the exercise and just self-publish?  No agents, no publishing contracts.  What could be simpler?  Just print the books or put the book on the internet and let the world read.  David says no way – avoid the “empire of the amateurs.”  Readers look to publishers to get to quality writing and that’s the group you want to be in.  So, develop your craft, be patient, work your tail off and if you get a chance at a deal, fight for the best deal you can get.  Oh yeah, and get a good agent or attorney (better listen to the next episode of bp/g radio).     

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Ponder four scenarios: (a) ocean freighter entering Long Beach with several containers of fake Kate Spades; (b) two companies clashing over priority of trademark rights and one may not have maintained use in commerce; (c) well-financed new enterprise picks a corporate name and discovers a third party has registered the corresponding domain name but is not using it; and (d) company X reviewing company Y’s patent comes across old document suggesting an invalidating public display by Y – did it happen?  These are not uncommon problems, but they require discreet information gathering.  You need an IP PI.   

Digging up dirt on patents, trademarks and copyrights requires creativity, persistence, and intellect.  All the regular investigation practices (and skullduggery) come into play; but add complex technical subject matter, cagey marketing personnel and shady importers.  Who better to speak with on the subject than Ken Taylor, CEO of Marksmen, a leading worldwide IP investigative firm (www.marksmen.com).  Taylor, a former private investigator (and English major) leads us on a quick blast on the why’s and how’s of IP investigations, best investigative practices, and ethical problems (to avoid). 

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It’s interesting how different countries define legal acts in different ways.  Or maybe it’s just annoying.  For example, how does it serve justice, common sense or clarity in the law to have a particular human act be a felony in one state, a misdemeanor in another, and totally legal in a third (think of the evolving law on medical uses of hemp).  That could be explained by varying acceptance of social conduct between population groups.  But what about more esoteric topics such as the definition of “contract?”  After a few hundred years of jurisprudence, we may have finally gotten to a point where the basic elements of contract formation do not vary wildly between US states.  But step outside the US or put goods into international commerce and now your US-executed contract may not be valid under the CISG (UN Convention on Contracts for the International Sale of Goods).  Better race to the courthouse.

Thankfully, mercifully, decades of effort by international study groups, negotiators, ambassadors and legislatures have resolved all international variances in intellectual property law.  Yes, in the early years of the 21^st century, we can look with pride across a global expanse of harmonious and uniform application of patent, trademark and copyright laws. 

And if you’re not laughing out loud, you should be.  Why, take patent law.  We can’t even get international accord on the definition of a patentable invention.  For example, a good incorporating new technology sold once publicly in the US without the benefit of a pending patent application works a worldwide forfeiture of patent rights (for the vast majority of countries requiring absolute novelty).  Maybe there’s a valid policy in pushing inventors to seek protection before commercialization.   But go deeper on what an invention is. 

To be patentable, an invention must be novel and non-obvious.  Or, on the latter point, in different parlance, show an “inventive step.”  On the issue of obviousness in the US, there are widely varying opinions on how different an invention must be from prior art to be a patentable invention (all employing multi-factor tests).  KSR hardly settled the matter.  More inventions are being attacked in the US on obviousness grounds than ever, suggesting greater uncertainty for all concerned.

So in an effort to get some distance from the maelstrom at home, we spoke with Neil Ireland, a patent attorney at the Phillips Ormonde & Fitzpatrick firm in Melbourne, Australia (www.pof.com.au).  Maybe it’s having summer in December that keeps the Australians a little more flexible.  But as Neil shares, their High Court is going in the opposite direction of the US Supreme Court and making it easier to show “inventive step” (non-obviousness).  The High Court, in a widely discussed case, recently reaffirmed that an “inventive step” can be shown with a mere “scintilla” of invention.  See Lockwood Security Products Pty Ltd. v. Doric Products Pty Ltd. (High Court 2007), opinion at http://www.austlii.edu.au/au/cases/cth/high_ct/2007/21.html.  Before you rush to file patent lawsuits in Australia, there is no presumption of patent validity.  Once a patent goes into the Australian federal courts, it’s de novo review.  So your patent will get a hard look no matter what.  Listen carefully as Neil tells all.  Then, we’ll be back shortly with the rest of the answer on international IP harmonization….

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