"Copy Protection" - Interview with Beth Simone Noveck and Martin Schwimmer
Thursday, November 22, 2007SUSIE GHARIB, NIGHTLY BUSINESS REPORT ANCHOR: For more analysis on patent and trademark protection, I spoke with two experts -- Beth Simone Noveck, director of the institute for information law and policy at New York Law School, and Martin Schwimmer, an attorney at Moses and Singer, and he also publishes the "Trademark Blog." I began by asking Noveck if the current patent system actually discourages innovation.
NOVECK: There are those who would argue that in fast moving industries like the high-tech industry, a 20 year grant of monopoly rights is frankly too long and depresses innovation in the high-tech industry. Whereas it may be more appropriate for another industry. But, I think, frankly, the issue is having the highest quality patents. The danger is low quality patents are those that depress innovation because they simply promote litigation.
GHARIB: Marty, your practice deals mostly with trademarks and domain names on the Internet. To what extent has the use of trademarks in Internet searches raised some new legal issues?
SCHWIMMER: Well, we are living in the age of search where people use trademarks to find what they are looking for, so competitors fight over that traffic. We had that in the real world, where you wanted to put your ad next to a competitor in the Yellow Pages or you wanted to put your store next to a competitor's in a shopping mall. And, to a great extent, that's what they are doing here. Only, it becomes a trademark conflict.
GHARIB: So, what is the real legal issue?
SCHWIMMER: Well, the legal issue is just confusion, whether someone searches for iPod on Google and whether the ad next to it has to do with iPod or with a competitor to iPod. Is that confusion or is that just good, healthy competition?
GHARIB: Beth, I want to get back to what you were saying about patents. You've come up with a program that could resolve all of these issues of big backlogs and delays in the Washington patent office. Tell us a little about it and how it works.
NOVECK: Well, I don't know if we've fixed all the problems with what we are doing. But, we are collaborating with the U.S. Patent Office in Washington to offer a program called "Peer to Patent." And, what we are doing is giving the public the opportunity in a pilot program to contribute information to the patent office in order to help the examiner make the determination about whether in fact an application or the invention deserves this enormous grant of 20 years of monopoly rights. Basically, it's very hard for the patent office with a million applications -- soon to be a million applications on backlog -- and only about 18 to 20 hours to examine each application, an application that may turn into the next Blackberry or the next iPod, to get all the information that it needs to make that important decision. We want to get them the best information possible in order to ensure that the applications turn into good patents and those in turn promote innovation.
GHARIB: Well, you were talking about Google a moment ago. And, the name Google has become synonymous with doing an Internet search. And "to Google" has even become a commonly used verb. Could that put the Google trademark into jeopardy.
SCHWIMMER: The legal principle you are talking about is genericide. And that is where a trademark becomes a generic term for something. The most famous examples of that would be aspirin and an escalator. On the whole, Google is very, very happy that we use Google as a verb. It is only when a competitor were to describe their own product in such a way that Google is really going to take action.
GHARIB: So, is there something that a company can do so that its trademark does not become a generic term?
SCHWIMMER: Absolutely. Google is going to send out letters to competitors who misuse Google as a trademark. But, I don't think...I think we are safe for now using it as a verb ourselves.
GHARIB: Beth, in our reporting on copyright issues, we've talked a lot about fair use. Do you think that there's a need to expand fair use rights to patents and trademarks?
NOVECK: The notion of giving people a defense against an allegation of intellectual property infringement has been well enshrined in copyright law and in trademark law. In patents, we used to have such an exceptional defense that would allow people to do pure research, but the commercialization of research, of course, that defense has shrunk almost to zero. I think though, first and foremost, in patents is ensuring again that we don't have patents out there that are not deserving of the patent and are then being inserted in litigation against people -- scientists, business people -- unfairly and unreasonably and at great cost to the economy.
GHARIB: Marty, do you agree with what Beth is saying?
SCHWIMMER: Absolutely. I think the law as articulated and as decided is good. The problem is when the overzealous lawyers, overstating their claim, and consumers who are basically abusing the privilege of fair use.
GHARIB: Just to wrap it up...Beth you have written that unlike real property or land, which are limited resources, intellectual property cannot be exhausted. So, in view of that, do you think it is time to rewrite the laws on intellectual property protection?
NOVECK: Well, right now, Congress is considering doing just that with regard to patents. There is a concern about the kind of overzealous litigation that's taking place that Marty refers to in the patent domain. And, so Congress right now is looking at it. It's passed the House and it's pending before the Senate, this patent reform legislation that would in fact make it easier for example, as we discussed before, for the public to contribute more information to create a more open process, that ensures the quality of the patents we issue are better, and that hopefully in turn would decrease the level of litigation.
GHARIB: Fascinating discussion. Thank you both very much. Beth and Marty, we really appreciate your time.
NOVECK: Thank you.
