Now Universities are Patent Trolls

[colinian]

I was at my desk eating my lunch today and trolling the web when I saw an item posted on Language Log about common phrases like "student life" being trademarked for any use related to education — by universities. I thought it was worth posting here because these universities are aggressively going after anyone using their trademarked phrases. That includes us as writers, the sites where we post our stories, if we're lucky enough to get the stories printed the publishers could be sued, etc.

Here are some amusingly used in the closing paragraph of the item:

It is depressing to see universities acting like the trademark analog of patent trolls. Let's all use as many of the above phrases as we can, to reduce to absurdity their claims that they are trademarks. C'mon, be the difference! With only first year experience, we can do this, one course at a time. We're conquering trademark hoarding; working toward a world without patent trolls. With imagination beyond measure, maybe we can cure violence and students with diabetes too. You never know. Tomorrow starts here.

Colin

[Graeme]

I remember the court case on Windows vs Lindows. The court in question (from memory) told Microsoft that by using a common word as their product name, they had significant restrictions on their trademark.

Most of those phrases shouldn't stand up in a court of law as defendable trademarks. The one I couldn't believe was 'students with diabetes'. How the #%$@ did that get trademarked?!? The others are barely plausible, but even so I think a court would throw out a lot of them as being in common use before the trademark was applied for (eg. Fast-track MBA, first-year experience, and student life)

[colinian]

There's been a column in the Contra Costa Times I remember reading since I was in elementary school and the title is "Student Life" and I think if anyone could have trademarked that it would have been Bay Area News Group (BANG) which owns the Times and a bunch of other papers in the Bay Area that run their own versions of the column.

Colin

[The Pecman]

I was at my desk eating my lunch today and trolling the web when I saw an item posted on Language Log about common phrases like "student life" being patented for any use related to education — by universities.

Note that a phrase cannot be patented... a phrase can be Trademarked or used as a Service Mark, but only an invention can be patented (like a new motor or a new light bulb).

The court can always throw them out when there's evidence of prior use. It's very hard to come up with a unique word or phrase that hasn't slipped into public use in the last 50-60 years.

[Chris James]

_{You mean like Pecman....that's a unique trademark...where did they put the stamp?}

[Cole Parker]

People here are right, you can only protect things that are unique. And common phrases, phrases that are in the vernacular, don't count as unique. I can't imagine any court allowing something that has been in the vernacular for as long as 'student life' has to be called unique and privatized. That phrase was around when I went to college, which was back when the waters that Noah saved all lifeforms on the planet from were still receding.

C

[The Pecman]

The classic example is Time Magazine. You can't trademark the word "time," and you can't trademark "magazine," but you can sure believe "Time Magazine" is a registered trademark. Compound words are generally easy to trademark when they're invented, and especially when they're misspelled. I once made the mistake of using the word "Xerox" as a generic in a published article, and believe me, we got a nasty letter from the Xerox Corporation within 2 days admonishing me to instead use the phrase "Xerox Copy" and never "Xerox" by itself. Words like Aspirin and Thermos have slipped into the public domain all because corporations didn't police how they were being used.

There are also copyrights, which are different from trademarks and patents. It's all very complicated. And even when you own a unique word, you generally can only own it as it pertains to a particular business. For example, I could create a game called "The Word Game," but not "The Microsoft Word Game." The problem is with words that could pertain to different businesses... like movies, TV shows, comic books, toys, computer software, and so on.

I don't think the University can hold on to these words. The moment a judge sees that they existed for many years prior to the University securing a trademark, he can invalidate them fairly quickly. I'd also alert the law department of the school to maybe have a word with whoever is doing these trademarks and tell them to get a life. Worry about educating students, and stop trying to make money with bullshit.

[colinian]

Note that a phrase cannot be patented... a phrase can be Trademarked or used as a Service Mark, but only an invention can be patented (like a new motor or a new light bulb).

The court can always throw them out when there's evidence of prior use. It's very hard to come up with a unique word or phrase that hasn't slipped into public use in the last 50-60 years.

You're right, my typo. I shouldn't try to troll the forum when I'm eating one of Ike's Place sandwiches.If you're ever in the Bay Area^TM [grin] it's worth going out of your way to one of their shops. They are the most awesome anywhere. Anyway, to get back to the topic: yes, it should have read "trademarked" and I've edited my original post.

Thanks!

What irritates me is that some idiots in the United States Patent and Trademark Office actually granted the universities trademarks for these vernacular phrases!

Colin

[The Pecman]

What is interesting is that the U.S. Trademark office does also control patents and copyrights, and when you hire a trademark attorney, they usually know patents and copyrights as well. So it all does overlap.

My partner and I owned a trademark for a magazine back in the 1980s, and we were initially overjoyed when we discovered a Japanese company infringed on the trademark on a fax machine. I actually wore our magazine's T-short to their booth at an electronics show, which took them aback. Since we had been doing the magazine for 3 or 4 years, they acknowledged that we pretty much had them dead to rights, but when we tried to settle with them later they proved evasive. We were hoping for a quick $50,000 buyout or something, but they basically dodged us for a couple of years and then just killed the product.

Now, if only I had trademarked the word "iPhone" back in, say, 1990...

[Merkin]

It is a very confusing subject but some basic know-how should be part of any writer's reference file. Here's a useful link clarifying essential differences among Copyrights, Trade Marks, and Patents: http://www.lawmart.com/forms/difference.htm

[colinian]

Copyrights and Trademarks have scope. For example, a story can be copyrighted, but the title of the story cannot be copyrighted. The scope of the copyright is the story itself, not the title or the color of the cover or the way it's packaged. The same is true of a song, or a film, or a work of art. Items which cannot be copyrighted include titles, names, common facts, and ideas.

The scope for trademarks is much more complex. I can have a trademark for the name of a line of jeans, which has to be displayed on a label attached to the clothing to identify the trademark. But someone else can use that name for another unrelated purpose, the name of a carbonated beverage for example could also be used as the name of an automobile model. Getting a trademark for Flame jeans doesn't prevent the Ford Motor Company from coming out with a Ford Flame model. For a trademark name to apply for all uses means that the trademark has to be shown as unique and ubiquitous, and that any other use of the name would be considered an infringement. The ability to obtain a ubiquitous trademark is very complex, and has other issues including geographic scope. An excellent source for trademark information is at www.inta.org/TrademarkBasics/Pages/TMBasics.aspx.

Colin

[The Pecman]

Copyrights and Trademarks have scope. For example, a story can be copyrighted, but the title of the story cannot be copyrighted. The scope of the copyright is the story itself, not the title or the color of the cover or the way it's packaged. The same is true of a song, or a film, or a work of art. Items which cannot be copyrighted include titles, names, common facts, and ideas.

You'd be surprised. For example, about 8 months ago, Warner Bros. tried very hard to stop Weinstein Films from releasing the movie The Butler because Warner Bros. had a trademark on a 1916 silent film with the same title:

http://www.hollywoodreporter.com/thr-esq/butler-battle-escalates-weinstein-hints-579841

So a lot depends on how much money you want to spend and how powerful your lawyers are. In Weinstein's case, they solved the problem by officially titling the movie Lee Daniels' The Butler, which the MPAA agreed was enough to draw a distinction. And yet the truth is that there are many, many movies with identical titles made in different years. Most of the time, the companies just let it go. God help you if you were to release another movie titled (say) Frozen. Disney also hates it when people take public domain characters like Snow White or Pinocchio and make new animated films out of them... because they don't technically own those words.

I've been peripherally involved in copyright lawsuits before, including having to testify three times in the famous Sony vs. Universal Studios Betamax case, so I've had to sit down and read U.S. Title 17 to get a sense of what copyright law is all about. I can say it's a very, very complicated area, and a lot of it (and also patent and trademark law) boils down to case law, meaning it's however the judge interprets the law. If you get an asshole judge, chances are the verdict may not be predictable.

I'm apoplectic about the imitation iPhones on the market, and how difficult it's been for Apple to win all the lawsuits against the companies who make them. It's interesting how many companies sneered at Apple in June of 2007 when the first iPhone was released, which had some fairly significant features like the gesture UI, the virtual unlock switch, and a lot of other really, really innovative ideas. Now, we take all this stuff for granted, and everybody has very similar smartphones now. I'm glad that Apple has at least one most of the cases against Samsung in America, but it's bewildering to notice how different patent law is in different countries.

[colinian]

Many of the features of the iPhone pre-existed the original iPhone and despite prior invention were patented by Apple. The judges Pecman talks about are alive and well and they have interpreted Apple's patents as valid. Industrial devices used screens with icons that when touched would cause programmatic functions to be executed. Gestures existed on models of the Xerox D-Machine as well as features like the mouse, a windowed user interface, multiple programs running simultaneously, and more. Xerox failed to patent these inventions; the corporate headquarters didn't understand what they had at PARC, the Xerox Palo Alto Research Center. However, not having patented inventions still precludes someone else from later patenting the same invention. Apple sued Microsoft and Hewlett Packard for infringement of their patents on a windowed user interface. They lost (everything except two icon design concepts that HP "copied"). Prior invention is part of Samsung's argument in the Apple vs Samsung patent infringement case.

Colin

[Paul]

You'd be surprised. For example, about 8 months ago, Warner Bros. tried very hard to stop Weinstein Films from releasing the movie The Butler because Warner Bros. had a trademark on a 1916 silent film with the same title...

That actually wasn't a trademark issue; Warner's claim was filed with the Title Registration Bureau of the MPAA (Motion Picture Association of America). It's a voluntary trade organization, though as signatories, both Warner and Weinstein are bound by its rules and the decisions of its arbitrator. In the end, Weinstein agreed to change the official title of their film to "Lee Daniels' The Butler."

http://www.indiewire.com/article/mpaa-overturns-its-original-ruling-on-the-butler-title-harvey-weinstein-responds

[The Pecman]

Gestures existed on models of the Xerox D-Machine as well as features like the mouse, a windowed user interface, multiple programs running simultaneously, and more. Xerox failed to patent these inventions; the corporate headquarters didn't understand what they had at PARC, the Xerox Palo Alto Research Center.

The difference there is that Apple paid PARC for the right to visit their center and use the inventions in consumer products. This is detailed in Walter Isaacson's best-selling biography on Steve Jobs. And most of the inventions, including the mouse and the GUI, had already been started on as R&D at Apple:

http://latimesblogs.latimes.com/technology/2011/10/steve-jobs-xerox-parc.html

http://appleinsider.com/articles/13/08/10/xerox-parc-the-apple-inc-macintosh-innovator-duplicator-litigator

That actually wasn't a trademark issue; Warner's claim was filed with the Title Registration Bureau of the MPAA (Motion Picture Association of America). It's a voluntary trade organization, though as signatories, both Warner and Weinstein are bound by its rules and the decisions of its arbitrator.

That's true, but I think you can look upon a registered movie title as a de facto Trademark. There are also movie & TV show titles that have been trademarked after the fact; famous, Star Trek's first 40 episodes slipped into the public domain because of a paperwork screw-up, but because the music was still copyrighted and the title of the show was a trademark, they were able to prevent other companies from releasing the shows on home video.

[colinian]

My granddad worked for Xerox. The payment Apple made to Xerox was minimal, primarily because the accountants and lawyers in Connecticut who ran the company took Apple's offer. Xerox decided there was little value to what Apple wanted and they thought they were the ones coming out ahead. Basically Apple didn't buy the patents, they bought the right to use the inventions that Xerox had developed and not be sued later. Later Microsoft entered into a patent exchange agreement with Xerox, which is one of the reasons that Apple's attempt to stop Microsoft from selling the Windows operating system was unsuccessful.

Colin

[The Pecman]

My granddad worked for Xerox. The payment Apple made to Xerox was minimal, primarily because the accountants and lawyers in Connecticut who ran the company took Apple's offer.

Apple paid a lot more than Microsoft paid... which was nothing. Who do you think was the bigger thief here?

Note that Apple produced documents that verified that Bill Gates had said (as far back as 1983), "I want the Mac user interface on top of DOS." But the only reason Apple didn't win that case was because the judge basically said, "well, Apple, Microsoft, and Xerox all borrowed from prior work." I think they got a shitty judge -- which is an enormous problem in patent law, particularly as the creativity becomes more and more technical.

Xerox still sued Apple later, but Apple settled. I think Xerox's excuse was, "well, sure... you said you were going to use this for consumer products, but you didn't tell us that professionals might buy your computers!" It was a lame argument.

Have you read the Jobs book? It's more interesting than you might think, and -- as I've told many of my anti-Apple friends -- it has more horrible, negative stories about Steve Jobs than any book ever printed. And I'm convinced they're all true.

I always did like one thing about Steve Jobs, which is his observation that the single biggest flaw with Windows is "Bill Gates has no taste." And despite the fact that I run Windows several times a week, the flaws with various flavors of Windows remind me that it's the minutiae that define artistry and whether something is well-done or crappy. I tolerate Windows, but no way does it provide the same user experience as the Mac.

BTW, I don't think either Microsoft or Apple are patent trolls, and I think both have been treated badly by many foreign companies. Samsung is very high on that list. I've walked through Samsung's headquarters in the "Samsung Town" part of Seoul, and those are weird-ass people. Trust me on this.

[Cole Parker]

... it's the minutiae that define artistry and whether something is well-done or crappy.

I think you just defined why some stories and some writers are better than others.

C

[The Pecman]

Very true.

I just got off the phone with a former IT colleague of mine, and he reminded me:

Apple has 15,500 patents...

Microsoft has about 10,000 patents.

But... Google owns over 30,000 patents, mainly because they bought Motorola's cellphone division.

Food for thought.