Lights! Camera!...Wait! Is There a Patent for That?

October 6, 2021 Lori-Ann Craig

October 6 was a momentous day in the history of the motion picture. In 1889, Thomas Edison, perhaps America’s greatest inventor, displayed the first motion picture, Monkeyshines, a film produced using the kinetog raph, a motion picture camera created by Edison’s assistant, William Kennedy Laurie Dickson.

In the Interest of the Public Good

July 7, 2020 Heather Holmes

Image by https://pixabay.com/users/Alexandra_Koch-621802

Today’s blog post began as a discussion about the debate surrounding intellectual property protections for the development of a COVID-19 vaccine, but, in the course of reading about the conflict between pro-patent pharmaceutical companies and those who promote public access to the vaccine, the discussion evolved into a reflection on the development of the Internet. We are providing links to some good resources about the controversy around vaccine patent protections at the conclusion of this piece, but the focus of this blog post is actually the development of the world’s greatest vehicle for communication without which modern life is unimaginable – the World Wide Web.

In answering the question, “Who owns the patent to the polio vaccine?,” Jonas Salk famously said that it belongs to the people. “Could you patent the sun?,” he replied. Tim Berners Lee, the pioneering computer scientist who developed the World Wide Web, might have said the same. His vision was clear – access to the Internet via the World Wide Web should be open and transparent. Creating an egalitarian space free from the influence of private interests was central to his design. Today, this vision is being challenged by private companies who prioritize profit over the public good. Advocates for network neutrality are pushing back. Regulating telecommunications companies and their control of online data streams is necessary, they argue, to ensure equal access to websites, applications, and online content. Similar arguments are being made with respect to the development of a COVID-19 vaccine.

Some say that, in the interest of global public health, the vaccine should belong to the people and made widely available to all who want it. Millions of public dollars are being spent to fund research for a vaccine, so, as the argument goes, any medical discovery made in the pursuit of a vaccine should be shared. Pharmaceutical companies argue otherwise. They stand to profit greatly from the sale of a vaccine for which there will be an overwhelming global demand. Clearly, the interests of the public and those of pharmaceutical companies are greatly at odds…or are they?

Apart from concerns about who should have access to either vaccines or the World Wide Web, there is a debate about what is created and what is discovered. The World Wide Web is clearly a creation, invented by a brilliant mind who shared it with the entire globe. The genesis of vaccines, however, is not as clear. Is a vaccine created or discovered? Teasing out the answer to this question is central to the discussion around patenting a vaccine or giving it away for the benefit of all.

To explore the vaccine dispute further, see links below.

The History of Vaccines: A Timeline — The College of Physicians of Philadelphia
Whoever Invents a Coronavirus Vaccine will Control the Patent – and, Importantly, Who Gets to Use It — The Conversation
A Covid-19 Vaccine Will Need Equitable, Global Distribution — Harvard Business Review
Coronavirus: Everyone Wins When Patents are Pooled — Nature
The Covid-19 Vaccine Should Belong to the People — The Nation
The Way We Produce and Patent Drugs Will Kill COVID-19 Patients — Jacobin

Please Hold: The Origins of a Hated but Entirely Necessary Invention

September 10, 2019 Heather Holmes

“Telephone hold program system” | US. Patent No. US3246082A | Alfred Levy (Granted 1966)

Last Thursday, NPR published a story about a deceptively dull topic — hold music. The history of this much maligned loop of sound that’s designed to pacify impatient callers is more compelling than one might expect. Along with an interesting origin story about the history of hold music, the NPR essay explored the psychology of selecting the most appropriate music for a particular purpose. A funeral home or debt collector will play music that soothes, while a car dealership may offer something more upbeat, overlaid with branded messages or “sincere thanks” for your patience. No matter the secondary purpose of the selected songs, most everyone agrees that hold music should be innocuous and inoffensive, and it should communicate one essential thing — Don’t hang up! Someone will be with you soon.

What does any of this have to do with the law, you ask? Well, your question is important to us. For starters, there’s the invention of hold music itself, and while its origin is less momentous than the discovery of penicillin, this "music" came about in a similarly accidental way. Legend has it that a factory worker named Alfred Levy was inspired to file a patent application in 1962 for the “Telephone hold program system” when a wire came into contact with a steel girder at the factory where he worked, turning the factory into a giant radio. Music, transmitted through the wire to the steel beam, could be heard through the phone lines that, until then, had been silent. Some years later, Levy filed a second patent application for a “Remotely controlled telephone hold program system" that gave callers the freedom to decide which music they wished to hear, lest the same song on continuous repeat should grow tiresome. Clearly, Levy was an innovative sort who was also concerned with courteous telephone practice.

Levy's invention is now so commonplace that the absence of any sound on the end of the line is disconcerting. According to the NPR story, even on non-hold calls, companies transmit a “comfort tone” over phone lines, a “barely audible synthetic noise that signals a connection is still there.” No one likes to feel forgotten or lost in a void of silence (except perhaps one man who “loves being in that uncertain and boring middle most of us dread — on hold, listening to hold music”), so providing reassurance that someone is listening (or at least present) on the end of a phone line has become a routine practice.

Alfred Levy understood that the goal of any effective hold music is to distract, to draw attention away from the tedium and duration of holding the line. While it may accomplish little to simply acknowledge an on-hold caller’s frustration, actually calling attention to the purpose of hold music is, as it turns out, a secret of success for at least for one company.

UberConference, a web conferencing service from Dialpad Communications, has garnered a lot of attention for its creative use of hold music to entertain its customers. Instead of hearing the usual Muzak-style arrangements or tinny corporate selections that we all know so well, UberConference users are treated to a song called, “I’m On Hold” by UberConference co-founder and amateur singer-songwriter Alex Cornell. The song, a pleasant, county/folk melody designed specifically for the phone, is simple and catchy with a single guitar and vocals. It's the perfect recipe for a song that’s played over an analog phone line where music is necessarily compressed, and sound quality suffers. Since 2013 when the song debuted, it has generated serious social media buzz. Callers appreciate the song’s references to being on hold, waiting for other callers to join the conference, and the uncertainty of knowing if the call will ever begin. As writer and performer of this clever tune, Cornell holds copyright. Others may wish to use the song as their hold music, but allocating that right is Cornell’s alone. In the 1980s when companies simply pumped in music from the radio, copyright was not considered (or it was knowingly violated) even though, according to an article on Tedium.com, ASCAP designates hold music as a “public performance” that requires proper copyright clearance. Now, while hold music has its moment in the sun, conference callers everywhere can enjoy a little departure from the everyday Clare de Lune or the fleetingly popular Cisco hold music. Conference callers, including lawyers and librarians, can be entertained and amused while enjoying a properly cleared, copyrighted, piece of music designed for just the occasion.

Latest & Greatest – Patent It Yourself: Your Step-by-Step Guide to Filing at the U.S. Patent Office

October 11, 2018 Lori-Ann Craig

By David Pressman and David E. Blau
Published by Nolo Press
KF 3144.6 .P74 2018

Do you think that you’ve created the world’s greatest invention, the thing that will be talked about for ages to come? Or perhaps, it’s not something so grandiose, but nevertheless useful. At any rate, no matter the invention, you want to protect it or commercially market it. So, what can you do? A good place to start is Patent It Yourself: Your Step-by-Step Guide to Filing at the U.S. Patent Office. Now in its 19th edition, Patent It Yourself guides its readers through the patent process: from the patentability search through the preparation of the patent application to the filing of the necessary paperwork.

The book begins with an introduction to patents and the other types of intellectual property, such as trademarks, copyright, and trade secrets before moving onto the nuts and bolts of submitting an application for a patent. The authors, two patent attorneys, also present some questions to consider when filing for a patent or when thinking about filing for one: will the invention sell? Is it patentable? Is a patentability search necessary, and if so, how is it done? The authors also address issues that may arise after a patent is issued, such as supplemental applications; use, maintenance, and infringement; and ownership, assignment, and licensing of the invention.

Aside from the information contained in the text, there is a lot of useful information in the appendices:

a list of government publications and patent websites;
glossary of technical terms;
glossary of legal terms,
a quick-reference timing chart, and
forms.

There is also a Quick-Start Guide at the front that points readers to specific chapters depending on the task at hand. Before you send that application off to the Patent Office, be sure to have a look at Patent It Yourself: Your Step-by-Step Guide to Filing at the U.S. Patent Office. It can make the process much easier to navigate.

Not Your Granddaddy's IP

January 24, 2018 Guest User

Read a good book lately? If you flipped a few pages in, you probably saw a small copyright notice. Watched an episode of Shark Tank? You may have heard an inventor excitedly describe their patents, trying to start a bidding war. Planning to tune into the Super Bowl? The sheer volume of registered trademark symbols on the logos might make you light-headed before halftime.

As content consumers, we are generally familiar with the intellectual property protections available to writers, musicians, product developers, and sports leagues. But what about less mainstream creators? While some find remedy in the law, others must carve out protections elsewhere.

Consider hair. Styling is an art, and hairdos all across the country are crafted by experienced, licensed practitioners who apprenticed and studied their way behind the chair. Occasionally, a stylist will be lucky enough to create an iconic look such as the beehive, the fade, the moptop, the undercut, or the Rachel. These artists may not always be able to protect their intellectual property in the actual haircut, but they can certainly patent any technology they have invented to help you achieve that perfect look. For example the Bumpit, as seen on TV, patented since 2009.

Anyone can make a cheese cracker, but woe unto he who incurs the wrath of Pepperidge Farms by shaping that cheese cracker like a fish.

Meanwhile, in restaurants, chefs are having a moment as the internet and basic cable spread foodie particularity to every hamlet with a Main Street. Many people are surprised to discover these innovators possess few legal rights to their creations, as recipes are considered such a basic aspect of culture that they are not subject to copyright or patent. No wonder many chefs are increasingly protective of their food presentation, one creative aspect they argue they can protect, as dining rooms increasingly move to ban food photography in an attempt to safeguard their designer plating. Lawsuits regarding plating are increasingly common in America and around the world, as a chef’s unique vision can be spread from one continent to another before you can say “Instagram.”

Famous clown Emmett Kelly has been depicted on an egg, despite having been an American.

In the United Kingdom, clowns have long banded together as a community to avoid redundancy in their individual face makeup design, by maintaining a privately held registry… of painted eggs. These eggs, each expertly illustrated by hand in the unique style of Britain’s most accomplished clowns, are kept on public display in an East End museum, housed inside a church. The collection is known to merrymakers worldwide simply as “The Clown’s Gallery.” An egg registry now also exists in the United States, where intellectual property rights in clown makeup are similarly unestablished. The world of clowning is relatively small, so this type of cooperative norms enforcement works more effectively than contentious, and potentially unaffordable, litigation.

Clubs such as LA's iconic The Comedy Store are sometimes said to display a special light to comics on stage when a known joke thief enters the building.

The laughs are just as hearty, but the stakes much steeper, in the high dollar world of stand-up comedy. The guy chasing yuks at your local pub may rake in $50 on a good night, but at the top of the heap comedy generates millions every year for television executives, late night hosts, and elite comics. A top, household name professional comic might produce 20 minutes of solid material in a year. Therefore, the theft of even a single joke can represent a substantial portion of a comic’s annual output. (That George Carlin was able to churn out hour long specials year after year is part of why he will always be considered a comedy god.) A mere ten years ago, disputes over joke theft were likely to be handled almost entirely through community enforced methods such as banishment from clubs, or even getting roughed up in the parking lot. But as the monetary value of jokes continues to increase, lawsuits over joke theft are beginning to dot the landscape, and judges are holed up in their chambers contemplating the relative originality of competing Caitlyn Jenner jokes.

Mike Tyson's famous tattoo that started it all.

Finally, tattoos used to be an ultimate mark of life on the cultural fringe (one of P.T. Barnum’s “freaks” literally just had a bunch of tattoos), but these days about 1/3 of American adults sport some ink. While tattoo artists expect their work to wander the world in full public view, they are reticent to allow others to profit off their designs. In one suit that settled, the creator of Mike Tyson’s iconic tribal face tattoo sued the producers of the hit film “The Hangover 2” for precisely replicating his work, as a key plot point, without permission. As a result of this and similar actions, many celebrities who hope their distinctive ink will become part of their personal brand now seek copyright waivers from their tattoo artists as a standard part of the transaction.

Learn more about the weird world of intellectual property on the margins through these links:

Ex Libris Juris - HCLL Blog