05 August 2009

Grinding Away

Before jumping into the sausage grinder, a little historical note:

Remember the so-called plot patent (what the applicant called a "storyline patent")? The examiner rejected the application1 on August 28, 2008 because it did not consist of patentable subject matter — one of the two objections I noted. The applicant has appealed, of course, and that appeal is in process. If the appeal is granted, though, we'll be back to the question of prior art... and there, I think, the applicant has little chance, given that the examiner has yet to consider prior art, and my little note above (which the applicant refused to cite to the PTO) cites prior art against the proposal. Remember, patents have to be new ("novel") discoveries or processes... and the existence of the awful Total Recall demonstrates that the particular process embodied in the '844 application is not new (as patent law understands that term). There is a huge difference between process and product in patent law. More when this becomes even more final yet... in about six more months, give or take.

  • One good argument for healthcare reform: BigPharma pays ghostwriters to create "scientific literature" supporting its products. OK, that doesn't sound so bad by itself, does it? Really: Leaving aside their handwriting, most physicians are crappy writers. It makes some sense to have "good writers" turn the research into decent — or at least readable — prose, doesn't it? Well... not exactly.

    The ghostwritten papers were typically review articles, in which an author weighs a large body of medical research and offers a bottom-line judgment about how to treat a particular ailment. The articles appeared in 18 medical journals, including The American Journal of Obstetrics and Gynecology and The International Journal of Cardiology. The articles did not disclose Wyeth’s role in initiating and paying for the work. Elsevier, the publisher of some of the journals, said it was disturbed by the allegations of ghostwriting and would investigate.... A spokesman for Wyeth said that the articles were scientifically accurate and that pharmaceutical companies routinely hired medical writing companies to assist authors in drafting manuscripts. The court documents provide a detailed paper trail showing how Wyeth contracted with a medical communications company to outline articles, draft them and then solicit top physicians to sign their names, even though many of the doctors contributed little or no writing. The documents suggest the practice went well beyond the case of Wyeth and hormone therapy, involving numerous drugs from other pharmaceutical companies.

    (typography corrected; hyperlinks removed; fake paragraphing removed for clarity)

    This is also at least somewhat relevant — if, admittedly, much less important — to a common publishing-industry practice: The undisclosed ghostwriter for a celebrity memoir. At least in those instances, though, the publicly stated author (the celebrity) knows what's going on, usually from the start, and has more involvement than putting his/her name on the final manuscript... and, frankly, the subject matter doesn't concern medical treatment. In an abstract sense, it echoes "false statement of origin" in trademark law — a theory seldom, if ever, applied anywhere in the entertainment industry (except, perhaps, to Milli Vanilli).

  • Then there's the whole "artists as brands" issue, which is getting an interesting treatment via the valuable IP Finance blawg. That might, however, lead to the Leatherface-brand chainsaw... and that's just a bit too far.
  • News that the EU is trying to force the US to adopt EU quasicopyright law by threatening to sue over performance rights isn't exactly news — this has been coming for a long time. The real problem is that later payment for "performance" of a copyrighted work is not actually copyright, nor is it required by the Berne Convention. It is a coordinate right, true enough. (And, of course, a "victory" will not actually put one damned dollar/Euro in the pockets of the actual artists... excepting a few Uncle Tom-ish collaborators with the industry structures.)
  • Here's a list of the (supposed) ten most-awful library books evah. Come on, we can all do better than that!
  • As further proof that bankruptcy attorney's don't know squat about intellectual property, a number of them are claiming that photographer Annie Liebovitz may have better luck in bankruptcy than in fighting a lawsuit regarding late mortgage payments. Those schmucks have obviously never tried to determine proper ownership of the rights to a work that may (or may not) have been through a bankruptcy proceeding...
  • The Observer — looking for something to overhype on a slow news day in the publishing industry — is claiming that publishers intend to enforce deadlines. Yeah, right. Here's a tiny little hint for you: The contract language in the typical publishing contract doesn't support it; neither, for that matter, does the commercial custom of the relevant industry (which is, as a matter of New York law, part of the contract); and, most importantly, the publishers' own inadherence to deadlines and other time requirements equitably estops them from claiming that the deadline really matters. I'd love to litigate the right case... especially in the instance of true force majeure.
  • More on the "Hugo shortlist controversy" at SFSignal, where several "panelists" get interviewed. What I find interesting is that each one questions whether the Hugos are supposed to be choosing "the best", since they're popular vote awards — which is precisely the objection Mr Roberts raised (however inelegantly) and that I've been bitching about for several decades.

    Over the years, I've noticed that the field of literature has a great deal of difficulty distinguishing "process" from "product"... and this is just another example. The obvious rejoinder is that this isn't about literature, but about fan awards; that rejoinder, however, just makes my point for me, and circles back around to comments on the "plot patent" at the top of this post.

  1. Unfortunately, the PTO system includes a Captcha botscreen, so I can't give a link — only instructions. The relevant documents can be reached by going first to the Patent Application Information Retrieval search page (via the Captcha), then selecting "publication number" and entering "20050244804" (without the quotation marks) in the box. Once you're at the screen, select the "image file wrapper" tab, and it will list documents available for download as PDF files — but not direct viewing on screen — in most-recent date order.