MICROSOFT GUILTY OF PATENT INFRINGEMENT IN SECOND TRIAL IN 2 MONTHS:$600 Million in Judgments

A federal jury in Texas found that Microsoft willfully infinged the patents of Canada-based software company i4i, based on template applications of Microsoft Word released in 2003 and 2007. The court ordered Microsoft to pay $200 million to i4i in damages. Microsoft plans to appeal. This is the second multi-million dollar patent infringement verdict assessed against Microsoft in as many months.

In April, Microsoft lost a patent infringement verdict of nearly $400 million to Uniloc, a California based company with patented anti-piracy technology. The Uniloc software crawls through a PC registered to run proprietary software, creating a "fingerprint" of the authorized computer. The device recognition software prevents licensed software from being run on unauthorized devices. Microsoft had unsuccessfully approached Uniloc in the 1990s about purchasing the company, or obtaining an exclusive license for the antipiracy software. Unilic sued when it learned Microsoft was running a similar device recognition program.

THE BREAST CANCER GENE PATENT:
ACLU organizes cancer patients to sue.

In a federal lawsuit filed yesterday in New York, a group of plaintiffs, including cancer patients, and pathologists, have sued the U.S. Patent and Trademark Office over patents granted relating to the Breast Cancer Genes, known as BRCA1 and BRCA2. Although patents are not typically granted for naturally existing things, the patentee lab, Myriad Genetics, was successful in obtaining patent protection 10 years ago by arguing that in isolating and purifying the DNA, it had a hand in "creating" the genes.

Seeking to invalidate the patent, the lawsuit charges that the genes are a product of nature and should not be patentable. The plaintiffs charge that the the legal monopoly granted by the patents is preventing robust research into these patented genes, preventing qualified labs from providing independent second opinions on the patentee labs' results, and keeping medical testing costs high for patients wishing to test for the gene.

Nadya Suleman, the infamous "octomom" on welfare, has spent about $1,000 to file 2 new trademark applications to register OCTOMOM as a trademark for various goods and services. These fees are the government filing fees only, and do not include fees paid to the attorney who represents her in this matter. Now we know why she's hustling to land a reality TV show-- she's got to make some money to protect her intellectual property.

If she is granted the registrations, though, she will have to contend with an earlier-filed trademark application by a third party to register OCTOMOM for iPhone downloads. Apple's description of the game reads "Press down on Octomom's swollen belly and another adorable bundle of joy will be brought into the world."

Nadya's own trademark application identifies her as Nadya Suleman, AKA Octomom, and indicates that the mark identifies her. I guess I was wrong when I thought the nickname was snide. She has apparently embraced it.

Rick Wagoner: Triple Bonus Double Standard

The country has rarely exhibited outrage on this scale. Unprecedented protests erupted when AIG execs, the very same top dogs who made millions from the company's shell game "profits," the same brainiacs who ushered a thriving company into financial ruin, were handed million dollar bonuses out of taxpayer bailout cash. The government shrugged with disapproval, but no one lost their job or was forced to give the bonus money back (although many were shamed into it).

Then, two days ago, the administration turned its sights on the gasping-for-its-last-breath auto industry, and put in play the first double standard: No more government money unless a head gets chopped off. WHACK! Off with GM's Head! Now poor Rick Wagoner is a "sacrificial lamb" -- a victim of the double standard, where Wall Street gets a "tsk tsk" and Detroit gets government instituted reorganization. Over the past two days, hundreds of publications, bloggers, and talking heads have called the administration to task for the unlevel playing field Detroit is forced to play on. Michigan Governor Jennifer Granholm was all over the perceived unfairness: "There's one standard for Wall Street and one standard for the average Joe and that's not fair," Granholm said on CNN's "State of the Union" TV show. .

What is the real double standard? Rick Wagoner, poor thing, is slated to receive over $23 million in bonuses from GM. That's millions of dollars more than most AIG execs got. And coming from GM, a company using government bailout cash to pay its bills, the entire bonus is a distribution of hard-earned taxpayer bailout cash. Where is the outrage demanding that Wagoner refuse this excessive compensation for his utter failure of leadership at the helm of GM?

After all, Wagoner, like the AIG execs, was at the helm, responsible for the worst-ever performance of the company. Under his stewardship, the company reported losses of $82 billion, having not logged a profit since 2004. Emergency government bailout money kept it from running out of money at the end of 2008, money which is largely gone now, three months later. When Wagoner took over as CEO in June 2000, GM's stock was trading above $70. This past week, trading closed at $3.62.

Wagoner's refusal to acknowledge what the world knew before him-- too many brands; too much emphasis on selling gas guzzlers; too little concern for the environment-- underscores ineptness and arrogance, qualities that sound pretty similar to the attributes of AIG's best and brightest. Shouldn't the public be demanding he refuse this undeserved benefit, comprised entirely of our hard earned money? If GM had been allowed to go into bankruptcy, which would have been the natural outcome without our bailout money, poor Rick Wagoner would have no bonus. He deserves exactly what the AIG execs deserved --nothing. And the public should be exercising its voice of outrage, not perpetuating the double standard by defending his "sacrificial" role.

The Ann Arbor News will cease to exist in July. I don't live in Ann Arbor, and I haven't regularly read the Ann Arbor News since I did live there, years and years ago. But there's something about knowing it's there, just like knowing Ann Arbor is there, if I want to go visit, that gives me a little feeling of comfort. Ann Arbor was where I did a lot of my growing up, went to college, went to law school, had my first baby. During all of those formative years, the Ann Arbor News was my main paper, complemented by The Michigan Daily.

These days I visit my kids who go to school there, and I only look to the Ann Arbor News to fill in facts when there's something of local importance. It's a pretty attenuated connection. But still, the news of its closing signifies the end of an era, and a sign that Ann Arbor, like the rest of Michigan, and like newspapers around the country, are in hard times.

It's the same twinge I feel when a favorite TV show ends. Not watching Thirty Something because I was too busy felt very different from not watching it because it was over. (It's true, I actually remember feeling genuinely sad when Thirty Something ended.) I miss President Bartlett's presence in my life during The West Wing days, and I miss the whole Sopranos gang.

I haven't felt bad knowing the Detroit Free Press is re-emphasizing to on-line newspapers, maybe because I am a predominantly on-line Free Press reader.

But when July comes, and it's official -- no Ann Arbor News, life will feel just a little different, one more color from the palette of my past rubbed out.

FACEBOOK'S IP GRAB

I'm just learning about Facebook, Twitter, and Social Networking sites in general. To be perfectly honest, I've been doing it in a rather clandestine fashion, given that my teenage/young adult kids have issued a fatwah on me that takes effect if they ever find out that I have created a Facebook identity. They've gone one step further and promised to kill me with their own hands if I ever even think of "friending" any of them. I know I'm pretty safe admitting here, in the privacy of my blog (which they would never be caught dead reading), that I've been doing some dabbling on Facebook and Twitter.

Forgive, for a moment, if you're an old hand at these sites. For the unenlightened, Facebook is free and open to anyone who signs up for an account. The content posted on one's site, as far as I can tell, tends to be limited to photos (of yourself, your family, your friends), and some short social commentaries in the form of personal updates and quips posted to one another's site (the posting area is called a 'Wall"). Although I haven't seen any Pulitzer-grade essays on any site yet, I do see links to websites, which undoubtedly contain copyrighted content. I know my own does. It goes without saying that all of the Facebook Pages, even those with photos only, have some intellectual property ("IP") to protect -- even if it is one's own right to privacy or publicity --the exclusive right to the commercial exploitation of your likeness or image.

Most content on your own site cannot be viewed by anyone unless they have been granted "Friend" status by you -- which requires a direct "Friend Request" --and which must be confirmed by you personally before the person can be your "Friend." Some people have thousands of "friends." Many, like my kids, have many hundreds of "Friends." Others, like people of my generation who are sort of embarrassed to be doing this anyway (and fear for their lives as parents) have more along the lines of 15 "Friends."

Individuals share links and content with one another, granting differing degrees of viewability to people based on preset Privacy Settings. At your discretion, some things can only be viewed by "Friends;" other things can reach a wider audience -- "Friends of Friends."

So what happened a few days ago to stir up such an uproar in the Facebook world?

Facebook amended its Terms of Service to give itself unbridled, uncompensated, never-ending license rights to all shared content posted on your Facebook Page -- even after the content has been deleted, or you close your account. Read the actual new language, affectionately referred to by consumer advocacy groups as "We Can Do Anything We Want With Your Content. Forever":


You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof. You represent and warrant that you have all rights and permissions to grant the foregoing licenses.

That's a staggeringly far-reaching license, and unprecedented in comparable sites such as Myspace, Youtube, Yahoo, and Google. It means that Facebook can use your photos, your face, your poems, whatever, in their ads, in derivative works (a Facebook Movie?) or for any other purpose. The only apparent self limitation is their agreement not to violate your privacy settings -- meaning things you've designated as limited to "Friends" only cannot be widely exploited by Facebook.

It remains to be seen if user uproar will force Facebook to revert to its more reasonable Terms of Service. Let's hope so.

Update Feb. 18, 2009: Facebook caved and has (for now) given up its attempt to coopt all of its users' proprietary content. Keep the pressure on them. See the Terms of Use Update at the top of every home page:

Terms of Use Update
Over the past few days, we have received a lot of feedback about the new terms we posted two weeks ago. Because of this response, we have decided to return to our previous Terms of Use while we resolve the issues that people have raised. For more information, visit the Facebook Blog.

If you want to share your thoughts on what should be in the new terms, check out our group Facebook Bill of Rights and Responsibilities.

THIS IS A GRACIOUS EXIT?

During Bush's last days, there has been no shortage of compliments on how graciously he handled the transition. To be sure, he was polite, cordial, and maintained the expected decorum. Norman Ornstein of the American Enterprise Institute said in the New York Times that Bush's "Gentlemanly Goodbye" earns him "a big gold star for the way he is leaving his office."

The Bushes offered up a formal White House tour for the Obamas that even featured an opportunity for Malia and Sasha to jump on the White House beds. Too bad, though, that the Bush graciousness didn't extend to accommodating the Obama family's request to move into Blair House, the official guest residence, in time for the girls' first day of school. It was apparently more important that John Howard, former Prime Minister of Australia, have the full run of the 14 guest bedrooms, eight staff bedrooms, 35 bathrooms, four dining rooms, kitchen facilities, laundry and dry cleaning facilities, exercise room, flower shop, and fully equipped hair salon for his single night stay.

High fives though for the Bush people's efforts to set up a formal transition council, and for helping to expedite security checks for the Obama nominees. Make a few formal gestures, and everyone glazes over with warmth at the graciousness of the departure.

But in giving Bush his transition score card, how can we focus on the menial cordialities, while completely ignoring his utter abandonment of his duties to the country during the gravest economic disaster in all of our lifetimes? Instead of making even the most rudimentary attempts to lead our country, to calm the market jitters, or to convene insightful economic advisers, Bush was either sitting with friendly interviewers making his public relations case to outline his successes to the cameras, or traveling abroad (and dodging flying shoes) in an attempt to wallpaper over the deep fault lines in our foreign relations.

But Bush can't be accused of failing to govern these last few months -- to the contrary, Bush has been extremely busy laying hundreds of regulatory land mines in the form of last minute regulations to booby trap the incoming administration, and create far reaching damage long after Bush is history.

It will take months to uncover the extent of the fallout from Bush's de facto laws resulting from these rule changes. The outgoing administration ramped up their efforts beginning last May to pull together this package of executive branch legislation in order to have it in place by November 1, 2008 - the last date to ensure they cannot be easily reversed by the incoming administration. Obama has devoted a number of full time staff who have worked for months culling through the mess. Here's a sampling of Bush's bighearted exit activities, otherwise known as "midnight regulations":

• health care providers may deny treatment, including contraception, to anyone for moral or religious reasons;



• the Endangered Species Act will no longer require scientists to assess impact on species before permitting logging, mining, drilling, or building roads;



• limitations on truckers' driving hours will be lifted to permit up to 11 hours of driving per day;



• loaded firearms will be allowed in National Parks;



• changes in Family & Medical Leave Act will make taking leave more difficult;



• millions of acres of wild lands will be opened up to mining activities and miners' royalty obligations slashed;



• coal miners may dump waste from mountaintops into neighboring streams and valleys;



• air pollution standards near National Parks will be relaxed (despite dissent from 9 of 10 EPA regional administrators);



• uranium mining will be permitted near the Grand Canyon;



• restrictions will be lifted allowing factory farms to permit animal waste seepage into water;



• 100 major polluters exempted from monitoring lead emissions;

There are many dozens more.

Bush has been extremely industrious these last few months. In our direct line of vision, but completely outside of our reach, democracy has been sidelined while the Bush Administration has been enacting hundreds of politically controversial last minute regulations -- the kind that will have the new administration devoting hundreds of hours attempting to defuse, reverse or neutralize. Notwithstanding our remonstrations, and despite the profound impact sure to be created by many of these controversial regulations, we will be sentenced to accept the long term fallout from Bush's gracious goodbye.

cartoon printed with permission Stephff