Legal eagles on staff with Red Hat are a busy group these days. The Linux distribution leader just announced that it has settled two of three patent lawsuits that had been hanging over its head for two years.

“We’re putting the patent issue to rest with the settlement of patent litigation involving Firestar Software, and DataTern that provide broad protections, not only for Red Hat customers, but for the larger open source community,” Red Hat spokesperson Kerrin Catallozzi wrote in an e-mail to InternetNews.com . . . .

According to a Red Hat FAQ on the settlement, JBoss Hibernate users will now receive a perpetual royalty-free, irrevocable worldwide license to use the disputed patent.

Nothing in this Court’s approach to patent exhaustion supports LGE’s argument that method claims, as a category, are never exhaustible. A patented method may not be sold in the same way as an article or device, but methods nonetheless may be “embodied” in a product, the sale of which exhausts patent rights. The Court has repeatedly found method patents exhausted by the sale of an item embodying the method . . . . These cases rest on solid footing. Eliminating exhaustion for method patents would seriously undermine the exhaustion doctrine, since patentees seeking to avoid exhaustion could simply draft their claims to describe a method rather than an apparatus. On LGE’s theory here, for example, although Intel is authorized to sell a completed computer system that practices the LGE Patents, downstream purchasers could be liable for patent infringement, which would violate the longstanding principle that, when a patented item is “once lawfully made and sold, there is no restriction on [its] use to be implied for the [patentee’s] benefit.”

From Quanta v. LG syllabus (b), decided June 9, 2008 (citations omitted).

Anyway, Google recently announced they will be employing software tools originally intended to filter out copyrighted material to track down missing and exploited children used in the pornography industry. It is tragic that the world situation necessitates such uses of the tools but heart warming that Google is putting their technical genius to work on the problem in partnership with the National Center for Missing and Exploited Children (NCMEC). As a father, I offer Shumeet Baluja hearty kudos for his efforts!

Shumeet writes:

One of our core strengths here at Google is our ability to manage and organize immense amounts of information — whether it’s text, image, audio, or video — and make it more useful and accessible for users. As a member of Google’s research group, I realized that NCMEC had an immediate need for some of our research-stage technology. They needed help organizing and making sense of the enormous number of images and videos sent to them every week through their CyberTipline and from law enforcement officers nationwide.

So we went into overdrive. I recruited some fellow engineers to help me build tools that NCMEC might find useful. Throughout 2007, using our 20% time, we created innovative software tools to help NCMEC track down child predators through video and image search. With these tools, analysts will be able to more quickly and easily search NCMEC’s large information systems to sort and identify files that contain images of child pornography. In addition, a new video tool we built streamlines analysts’ review of video snippets.

The Washington Post/Reuters has this:

Google Inc (GOOG.O) is enlisting the same image-recognition technology the company uses to trace copyright violations on its YouTube video site to fight online child pornography…

The project is applying so-called video fingerprinting technology, which Google has been urging media copyright holders to adopt as a means for policing widespread piracy…

Google engineers have worked for more than a year with federal agencies and NCMEC’s analysts in its Child Victim Identification Program to create software to automate the review of some 13 million pornographic images and videos that analysts at the center previously had to review manually.

According to the website, this database is an effort to exploit the infinite potential of stem cell therapeutics.  “Unfortunately, due to the nature of current day science, overspecialization has occurred, forming walls between disciplines and thus impeding progress. The internet, by allowing global, free access to information, is the perfect tool for overcoming intellectual and geographical differences so as to facilitate international synergism through free exchange of ideas. This website is dedicated to the complete dissemination of intellectual accomplishment in the area of stem cells.”

Sign up for their weekly newsletter to receive information on newly issued patents, new products, and state-of-the-industry reports.

I am completely in favor of anything that provides greater access to new ideas, even if it relates to commercialization, but I’m curious what the patent-holders think.  The selected patents are analyzed and summarized and users are able to make comments.  In response to a patent covering a “Method for expansion of epithelial cells,” one commentor said: “this is a great service.  I like the info on the claims that you are adding, as well as the added context with other patents that it relates to.”

Adding info on claims?  Sounds like dangerous territory.  The synergistic effect of this project could be ruined if innovations (i.e., patented subject matter) are not properly characterized.  Which makes me wonder who is authoring these summaries and what role, if any, the patentee has.  It’s not really clear from the website, so I sent them an email.  I’ll keep you posted …

From Patently-O: “The pending Patent Reform Act includes language that would provide substantive rulemaking authority to the PTO. That provision would directly overrule yesterday’s decision.”

From IPBiz: “The current version of S 1145 does not contain language granting the USPTO rulemaking authority for continuation and other rules, but the text of the House-passed HR 1908 does … the likelihood of having substantive rulemaking authority in any compromise is NOT high.”

Section 14 of H.R. 1908 amends 35 U.S.C. § 2(c) by adding that § 2(b) powers “include specifying circumstances under which an application for patent may claim the benefit under sections 120, 121 and 365(c) of the filing date of a prior filed application for patent.” 

The bill then notes that the above amendment clarifies the scope of power granted to the PTO as in effect since enactment of Public Law 106-113.

In other words, the bill, on its face, is not expanding the PTO’s rulemaking authority, substantive or otherwise.  The PTO currently has procedural power and, thus, any “circumstances” involving continuations must still govern the conduct of proceedings in the office.  The standard should not change.

For those opposed to the 2+1 rule because they believe it is “substantive,” it is important to stress the clarification function of the bill’s language and to not interpret it as granting substantive rulemaking authority (unless it’s just to oppose the bill as disguising substantive power as procedural authority).  Yes, the PTO can specify circumstances under which an applicant can claim the benefit of a prior application.  It can require a specific reference to the earlier application within a certain time period; it can require a fee; it can provide procedures for accepting unintentionally delayed amendments, etc.  But, to clarify, these circumstances can’t directly implement substantive changes.

Faulkner sells textbooks and CDs used to submit assignments and quizzes.  These materials are required for the courses in which they are available.  Class Notes hires students to take notes during lectures and then sells those notes for profit.

According to various news reports (I don’t have access to the complaint yet), Faulkner alleges that class notes violates copyright laws by publishing and selling lecture notes and reprinting test questions from a Faulkner Press textbook.  Note: it’s not clear to me whether these questions were discussed in class, transcribed, and then published or if they were copied directly from the textbook.

UF sued A-Plus Notes in a similar suit in 1996, but the Court of Appeals held that students’ notes are not the intellectual property of the professor.  For some reason, Faulkner believes this case is different.

The great thing about this case is that it has inspired Wikinomics-like reactions from the students: there is now a Facebook page dedicated to the suit called “Boycott Faulkner Press (Save Einstein’s Notes).”

More from the Independent Florida Alligator.

And here’s an editorial cartoon that sums up the suit quite perfectly:

Update: Faulkner Press has a website dedicated to this lawsuit on which you can find the 63-page, 38-count federal civil complaint.

[Background: The touchstone of § 230(c) of the Communications Decency Act (CDA) is that providers of internet computer services are immune from liability for content created by third parties. The immunity applies to a defendant who is the “provider… of an internet computer service” and is being sued “as the publisher or speaker of any information provided by” someone else. 47 U.S.C. § 430(c). The Ninth Circuit has held that a provider of an internet computer service is immune so long as it merely publishes information by its members. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).  If, on the other hand, the “provider” is responsible, in whole or in part, for creating or developing the information, it becomes a content provider and is not entitled to CDA immunity.]

Roommates.com asks users about their gender, marital status and sexual orientation, and allows them to filter results of potential roommates based on these answers.  According to the court, Roommates.com is therefore actively soliciting discriminatory content, making it more than a passive transmitter of information, and ineligible from the CDA safe harbor.

But wait, doesn’t Craigslist do the same thing?  Craigslist also permits users to advertise and select roommates based on race and sexual orientation, so why did a court find them immune from liability last month?  The difference is simple (trivial, perhaps): Craigslist’s does not have pre-populated dropdown boxes, only text boxes allowing users to write whatever they want.

Chief Judge Alex Kozinski wrote: “Unlawful questions solicit … unlawful answers.”  “The message to website operators is clear: If you don’t encourage illegal content, or design your website to require users to input illegal content, you will be immune.”  But is it the content that is illegal or the way in which the content is used?  And who is directing the content to be used in that way?

I fear that decisions like this will lead to an internet that looks like a chalkboard, allowing users to write whatever they want, without any guidance, instruction, or opportunity to refine/limit/perfect their content.

Next, a lower court will determine if Roommates.com actually violated the Fair Housing Act.  For this website, all internet forums, and Web 2.0 generally, keep your fingers crossed.

Here’s the report from Wired.

A spokeswoman for Senator Harry Reid (D-Nev.) said the majority leader is committed to bring the Patent Reform Act (S-1145) to the Senate floor in the current working session which ends in late May. “It could come up as early as next week,” she said.

The Senate bill echoes many of the provisions of a bill that passed the House of Representatives (H.R. 1908) last fall…

Individual inventors and pharmaceutical companies have rallied against the measure, claiming it would weaken the patent system that protects their innovations.

The IEEE-USA came out strongly opposed to the bill, saying it would weaken the patent system and thereby harm an already bad job market for US engineers. The group also compiled a list of about 200 generally medium-sized companies and universities who opposed the bill. The list included some large concerns such as the AFL-CIO, the American Intellectual Property Lawyers Association, General Electric, Medtronic and Texas Instruments…

A spokeswoman for Senator Patrick Leahy (D-Vt.) who co-sponsors the bill said a group of fairly minor amendments to the legislation were released recently. However, they did not address the most controversial provisions of the bill including efforts to limit damages, use of certain court venues and a post-grant review process.

The last thing the patent system needs is a political band-aid meant to appease certain lobbies. Carefully thought out legislation that addresses root problems, in light of the effects of recent Supreme Court cases, is the only thing that will ultimately improve the system.

Recently shares of Acacia, a $191 million company based in Newport Beach, have risen as the company and its wholly owned subsidiary, InternetAd Systems, inked licensing deals and won in court. Licensing settlements and deals include agreements with Time Warner (and affiliate Turner Broadcasting System), Epson, Teletrac, Ryder Truck Rental, AOL, Condé Nast, McClatchy and DoubleClick.

Licensed technologies include backgrounds of instant messages, online ads appearing between web pages, and remote control and monitoring of networked imaging devices.

Desmond reports that Acacia CEO Paul Ryan says Acacia has no real competitors. With healthy profits and an apparently viable business model others are certain to follow Acacia’s lead.