Showing posts with label ipr. Show all posts
Showing posts with label ipr. Show all posts
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Sony -- don't take away my friend's name

Monday, March 15, 2010

Detik reported that Sony corp sent a sommation* letter to a blogger named Sony, for using for his domain name. Now the blogosphere strikes back at Sony and organize a facebook group called 'Sony -- don't take away my friend's name'.

Will the wisdom of the crowd(ed) facebook beat Sony corp and its lawyers? We shall see.

Shall we name our cats Google and assign a domain name for it?

* I am not sure how to translate the term. There is 'Abmahnung' in German and 'Sommation' in French. Is Cease and Desist the equivalent common law concept?

Indonesia gearing up towards Creative Commons

Sunday, October 25, 2009

One of my colleague leads a Creative Commons Project in Indonesia. Tempo reported that the activists are campaigning the license to law enforcement institutions, before submitting them later to the central government. 

I really hope that their efforts will materialize. I have noted in my last posts that some trivialities under our copyright law might hinder the application of CC in Indonesia.

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Transparency in water utilities

Monday, March 23, 2009

I argued in my newspaper op-ed that the natural monopoly character of water services justifies its transparency. The purpose of water services regulation is to reduce natural monopoly and decreases information asymmetry. Transparency mechanisms work in that direction by allowing information to be interpreted by competing interest groups, thereby enhancing the regulator's capacity in deciphering information and producing more qualified decisions. Read more.

Economists have agreed that in every regulatory case, governments can never attain the same level of information as the company. Companies always know more about their own situation compared with the governments that regulates them.

The danger with this information asymmetry is that companies may inflate their actual costs and pass it on to consumers to pay. They may choose to deal with particular suppliers related to them (possibly a subsidiary of their parent company) rather than other suppliers offering lower prices.They may refuse to expand their network to slums or scarcely populated areas citing the reason of lack of capacity, although they actually can. Or, companies may conflate the number of leakages to add to the cost component.

As a result, governments must then be very well-equipped to be able to regulate water companies effectively; they must have all the technical, financial and legal auditing capability to discern and decipher information about water utility. The problem in most developing countries is that governments lack these regulatory capacities both in terms of human resources, technology and budget.

One way to mitigate this problem is by introducing transparency to the sector. Stakeholders can complain if they know that the company prefers to strike a water supply deal with real estate developers rather than invest in poor areas.

Potential suppliers can complain that they have been discriminated against, despite their ability to supply with cheaper costs. With transparency, governments can have help in interpreting information from other water companies, creditors, suppliers, consumers, NGOs, academia, the press or other interested parties.

However, it is difficult to make water utility companies agree to transparency. This response is natural as it is always better for them to conceal information than to be transparent.
Companies protect their information through confidentiality clauses in contracts and through trade secret laws. Freedom of Information laws typically do not work as they provide a blanket exception to disclosure when it comes to commercial confidentiality.


Is there a right to click?

Saturday, July 7, 2007

There is a right to development, to food, to adequate housing and living standard and to water. But, is there a right to broadband? The right to information? The right to click? Stephen's web put it nicely:
Other museums ban photography (like the museum in Taiwan, that wouldn't allow me to photograph 6,000 year old artifacts - I really really think the expiry date has passed, and I doubt that the creators will be motivated into creating any new 6,000 year old artifacts). Come on now - curators of the world, give us our heritage back.
I have discussed this problem in my previous post:
What about information?

Information is originally a non-excludable Good. If I write a song, I cannot prevent you from singing it or changing my melody. Information is also a non-rival good. I can sing as much as I want, but it doesn't consume it. Einstein had 'consumed' Newton's theory, but he does not dminish it instead but develop something else from it. So ideally, information is a public good.

But, since generating information takes cost, the Law changes the attributes of information into "non-rivalrous but excludable". So, it is the excludability that the Law changes. How? By installing the intellectual property regime. If I write a song, that song is mine, "excludable" from others. If you take my notations and sell it to a music recorder, I can sue you because it is my right (and will still be my right until 50 years of my death according to the Berne Convention and even 70 years according to EU Directive).

Since IP protection of the goods in museum had elapsed, I think as a rule, there shouldn't be any reason to prevent people from photographing it.


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Essential facilities doctrine and molecular manufacturing

Friday, March 2, 2007

This is just a quick, general and preliminary comment on the development of the doctrine of essential facilities. After reading some papers (some of them also available in the ssrn here), I have a feeling that both IP and Competition Lawyers are in favour of a more restrictive application of the "essential facilities" doctrine to intellectual property.

Essential facilities has been heaviliy criticized. Some lawyers considered that when there is a competition case involving IP, a new approach must be created as essential facilities deal primarily with tangible property.

My impression is, however, that these "new approaches" attempts to put a more strict treshold when competition law inetervenes intellectual property. I wonder if in the future, when molecular manufacturing is available -- a stricter approach would still be relevant. In my opinion, when more and more tangible goods are transformable into information, there will be more demand towards lowering the standards of IP protection.

It would be interesting to see how competition law doctrines operates in the age of molecular manufacturing. The tendency towards differentiating between competition law test applicable to tangible property and competition law test applicable to intangible property is something positive. However, the trends that everything is transformable into information these days must also be put into consideration. Raising the threshold of IP protection in a world where tangible goods are nothing but information may seriously jeoperdize the future economy.

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Bird flu strain: ownership or just profit?

Saturday, February 24, 2007

A colleague of mine wrote (in Bahasa) a nice piece in his blog, suggesting that the Indonesian government should create a material transfer agreement ("MTA") when handling the bird flu strain. To get an idea what a standard MTA looklike, you can click this link.

News however tend to suggest that Indonesia is claiming ownerhsip over the strain. But I agree with my colleague, it doesn't seemed like Indonesia is claiming ownership. It only wants a fair treatment. Health Minister said in an interview:
“WHO should have had walls to protect us as victims. It turned out to be that’s not the case and this is how it is in the world. Developing countries are always on the losing side like what happened to the AIDS and heart disease drugs,” she said.

Thus, there is indeed a case of securing it through the MTA. The non exclusive nature of the MoU is a good thing, as Indonesia still can make cooperation with other pharmaceutical companies.

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Bird flu strain MoU signed

Thursday, February 8, 2007

Not bad, although only an MoU it could be a good start:
Baxter International Inc. on Wednesday said it signed an agreement that could lead to a collaboration with Indonesia on the development of a bird flu vaccine, stirring controversy over the country's recent decision to stop sharing virus samples with the WorldHealthOrganization. It is the first such agreement Indonesia, the country with the most human fatalities from the H5N1 strain of avianinfluenza, has made with a foreign maker of vaccine. The "memorandum of understanding" with the Indonesian government provides "a framework for future discussions" that could lead to a formal supply agreement for pandemic vaccine. Baxter is already landing contracts to help countries, including the United States, stockpile dosages in the event of a pandemic.

An MoU is not yet binding. I wonder what the actual agreement will like. It may be difficult to attach derivative rights to the bird flu strains for financial compensation to Indonesia. If the agreement is like a supply agreement "here, you can have this strain but give us some money" then Indonesia will have no royalty share for each vaccines they create.
Got any other opinion?

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Can bird flu strains be "owned"?

Wednesday, February 7, 2007

Indonesia delayed the transfer of bird flu strains to WHO after an aussie company developed a vaccine out of it:
The Indonesian Government says Australian company CSL should have sought its permission to develop a bird flu vaccine using the Indonesian strain of the H5N1 virus. But news this week that the Australian pharmaceuticals company CSL had developed a vaccine against the H5N1 bird flu virus was met with alarm by Indonesian Health Minister Siti Fadillah Supari. She says Indonesia is seeking intellectual property rights over the Indonesian strain of the virus on which the vaccine is based.

If the case is about some Indonesian plants or animals, I am certain that there could be some protection granted by one of intellectual property treaties currently in force -- if Indonesia is a party to the treaty. However, I don't think it is the case when virus is involved. I don't think bird flu strains per se can be subjected to IPR protection. If, on the other hand, someone decode the strains, they might be able to obtain IPR protection. The code could be protected but the sample cannot!

NY Times said:
A spokeswoman for Indonesia’s Health Ministry told Reuters yesterday that the country “cannot share samples for free.” “There should be rules of the game for it,” said the spokeswoman, Lily Sulistyowati. “Just imagine, they could research, use and patent the Indonesia strain.” The Financial Times reported the move by Indonesia yesterday; the country has not released a flu sample since late last year.

True, they can obtain IPR protection from it. But the strain itself is noneother but a raw information. What the law gives is the protection after the information is processed.

While there may not be any case for IPR protection toward bird flu strain, holding the sample from being released is a legal thing. But, what would be the benefit for Indonesia?

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Nanotech the IP issues

Monday, November 20, 2006

I just realized that wikipedia just renewed its entry on nanotech, especially in its Intellectual Property part:
On the structural level, critics of nanotechnology point to a new world of ownership and corporate control opened up by nanotechnology. The claim is that, just as biotechnology's ability to manipulate genes went hand in hand with the patenting of life, so too nanotechnology's ability to manipulate molecules has led to the patenting of matter. The last few years has seen a gold rush to claim patents at the nanoscale. Over 800 nano-related patents were granted in 2003, and the numbers are increasing year to year. Corporations are already taking out broad-ranging patents on nanoscale discoveries and inventions. For example, two corporations, NEC and IBM, hold the basic patents on carbon nanotubes, one of the current cornerstones of nanotechnology. Carbon nanotubes have a wide range of uses, and look set to become crucial to several industries from electronics and computers, to strengthened materials to drug delivery and diagnostics. Carbon nanotubes are poised to become a major traded commodity with the potential to replace major conventional raw materials.
We have had discussions on these matters on the past (which you can view by clicking the labels below). There are also some explanations on these matters on the net. For example, a paper from Lawrence Letham which highlights general legal issues relating to nanotech, a general IP trend on nanotech from Chemical and Engineering magazine, Nanotech patent application in Japan from D. Kanama, Nanotech patent trends by Kallinger, Patent Trend survey from Foley Lardner and US Patent Reform for Nanotech from WLF.


All about Nano Patenting

Monday, May 8, 2006

There is a very useful blog created a former US Patent examiner Blaise Mouttet in

The Blog discusses in detail, the IP legal aspects of nanotechnology.

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Barriers to "Star Trek" economy

Monday, March 27, 2006

An interesting post from the Adam Smith Blog:
In an article in the current Business newspaper I examine how people increasingly expect goods to be free. From matches given away in restaurants and bars, we have been through free downloads and even free DVD movies given away with daily and Sunday newspapers. Skype has given us free telephone calls around the world. Many people, especially young people, prefer to read newspapers and magazines free over the internet. It leads to a new type of economy. It does lead to a rethink. If people are receiving the goods free, the price element of competition diminishes, and those of quality and convenience probably increase. It isn't quite a Star Trek economy where food and appliances come free from the replicator, but it's on the way to somewhere we haven't been.
Over at wise-nano, you will find an essay written by Giulio Prisco, titled “Globalization and Open Source Nano Economy”, in which he argued:
"Basic goods should be free, or priced within the means of everyone. In other words, Coca Cola can be expensive, but water must be free. Armani suits can be expensive, but basic clothing must be free. Who will develop royalty-free MDL descriptions of basic goods that everyone on the planet can use? The answer, I think (or at least I hope), is that they will be developed with an Open Source development model by armies of MDL programmers."
Hear hear! And Nanotech can make that happen. But for the near-term, we must get rid of bad laws that prevent open-source. In India, copyright relinquishment must undergo tight process like giving written notice to copyright registraar. In many other states, you cannot just append "Attribution, Non Commercial, Share alike"* to your writing as an indication of license as in their laws, "copyright license" must be written and signed by both parties.
These laws won't work after MNT is discovered. Even today, ther already become serious impediment to the economy. They will have to be rewritten. Immidiately.
Mohamad Mova Al 'Afghani
* In Creative Commons, that means a work can be copied freely given that the copier sufficiently attribute the work to original author, in a manner prescribed by him. Noncommercial means that people may not use the work for commercial purposes. Share Alike means any alteration of the work can be distributed under an identical license.


Limiting Patent using TRIZ method, is it possible?

Sunday, March 12, 2006

I have discussed a little in my previous post, my worries that nano-divide will occur if nanotech design technologies are patented. Now I am trying to explain the categorization of "degree" of invention in order to value its importance. Presumably, if a degree of an invention can be identified, we will be able to set limitation of IPR protection toward the invention (I hope I am making myself clear with this, its rather difficult for me to say this in words, but the pictures are in my mind).
There is this theory called TRIZ, a Russian acronym for "Teoriya Resheniya Izobretatelskikh Zadatch" or “Theory of Inventive Problem Solving (TIPS.)” in English. The concept was developed by a Soviet patent specialist, Genrich Altshuller, while working with the erstwhile Soviet navy in the 1970s and 1980s.
As discussed in Rob Millard's blog, according to Altshuller, there are 5 characteristics of findings:

Level 1: Apparent Solution, is a routine problem solved by methods well understood in the field, and probably within the personal knowledge base of the innovator. Probability = 1:10 with 32% of patents fell into this category.

Level 2 : Minor Improvement, renders minor improvement to an existing system, by methods well understood within the field, usually with some compromise and typically utilizing knowledge that would have been available in the innovator’s organization. Probability= 1:100 with about 45% of patents fell into this category.

Level 3 : Major Improvement, constitute fundamental improvements to an existing system by methods from outside the field (i.e. not known within the field) with level 2 compromises and contradictions resolved, typically using knowledge from outside the organization but from elsewhere in the same field (or profession.) A “hit rate” of 1 winner per 1000 ideas is typical with about 18% of patents fell into this category.

Level 4 : New Concept, is a new generation solution using an entirely different and new principle to drive or perform the primary functions of the system. The solution is derived more from pure science or original knowledge than from technology or extrapolation of other applied knowledge. A “hit rate” of 1 winner per 100 000 ideas is typical. About 4% of patents fell into this category.

Level 5 : Pioneering Discovery, is a rare scientific discovery or a pioneering invention involving what is essentially and entirely new system. A “hit rate” of 1 winner per 1 million ideas is typical. About 1% of patents fell into this category.

Imagine what will happen if "Level 5" Nanotechnology designs are patented. Wouldn't that prevent the tech's own proliferation and development? My idea is, what if we just liberate any Nanotech design capability that can be categorized to Level 5?

What's interesting with Altshuller's categorization is that it attempts to explain degrees of innovation. I believe that there are other ways to explain an innovation's degree, not just through one dimenson such as Altshuller's but also through three or five dimensions. We can add "impacts" as the second dimension in addition to degree.

The current patenting standards and examinations are too rigid so I dont think that it can be used in the post MNT societies. I would strongly suggest that lawyers, inventors and psychologist work together to find new ways in examining patents in order to reform the current patent mechanisms.

Email me ( or leave a comment here if you are interested in exploring further. I like psychology a lot, although I am a lawyer ;)

Mohamad Mova Al 'Afghani

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Patent classification for Nanotechnology

Nanotech patent has been discussed in many web so there's probably nothing new, but, I'd like to draw your attention on which part of the regulatory system needs amendment.
Currently, Nanotech products might be patented under USPTO Class 977/Dig1, which, provides disclosure for (i) Nanostructure and chemical compositions of nanostructure; (ii) Device that include at least one nanostructure; (iii) Mathematical algorithms, e.g., computer software, etc., specifically adapted for modeling configurations or properties of nanostructure; (iv) Methods or apparatus for making, detecting, analyzing, or treating nanostructure; and (v) Specified particular uses of nanostructure. The Class define "nanostructure" as an atomic, molecular, or macromolecular structure that (a) Has at least one physical dimension of approximately 1-100 nanometers; and (b) Possesses a special property, provides a special function, or produces a special effect that is uniquely attributable to the structure's nanoscale physical size.
In its note, Class 977 stated at Note 5 that Apparatus for manufacturing nanostructures, nanomaterials and nanodevices under the scope of Class 977 is generally limited to apparatus specifically adapted for creating ordered structures on a nanometer scale, i.e. apparatus for "bottom up" manufacturing to create larger structures from atomic and molecular constituents. Apparatus for "top down" bulk manufacturing of nanostructures, nanomaterials and nanodevices are generally excluded from this Class.
This indicates that this specific class might be applied to Molecular Nanotechnology (MNT). The difficulties with this classification will arises as this class also patented Nanotechnology Design Software (See Point iii: Mathematical algorithms, e.g., computer software, etc., specifically adapted for modeling configurations or properties of nanostructure.
Software patenting has created many problems as it (i) prevent creativity/modifications (ii) halt the economy/free movement of ideas and (iii) may create nano-divide. I call upon nanotechnologists and lawyers to quickly formulate a win-win solution for nanotech intellectual property protection as an alternative of software patent.
Mohamad Mova Al 'Afghani