International Patent Frenzy

International Patent Frenzy

As everyday Americans focus on increasingly unfair trade practices with China, marvel at their Thai made hard drives, their Taiwanese semiconductors, their South American coffee, wondering how all these things made it into their living room, enterprising Americans looking with a "right back at ya" attitude are looking at the World Intellectual Property Organization's (WIPO) [http://www.wipo.int] International Patent. Recently much attention has focused on the increasing emphasis on international trademarks such as the Madrid Protocol and the EU mark. Both registrations significantly extend the power of a US trademark internationally. Similar to that comcept is the WIPO international patent registration. In fact, applications have spiked tremendously with a nine percent jump in applications overall from 2004. And China was number 10 on the list of total applications filed.

WIPO offers American patent holders the opportunity to avail themselves of protection through the Patent Cooperation Treaty (PCT), which enables protection across WIPO's 128 member countries. Obviating the need for filing individual patent applications in Paris Convention countries, the PCT relies on a single application to cover all signatory nations. American patent holders that intend on or actually are leveraging those rights to propel their venture should definitely talk to their patent counsel about how to secure rights under the PCT. A good starting point is the PTO's website and the actual treaty itself, available at http://www.wipo.int/pct/en/texts/index.htm. WIPO also has an informative FAQ. Generally, to assure priority of your US filing date for your international application you must file within 12 months of your original US application.

In a world of fierce competition, what the gun did for war, intellectual property has done for business. News of manifold PCT application increases should not surprise anyone. Just the same, the fact that China, a country notoriously poor on intellectual property enforcement, is breeding a generation of entrepreneurs who recognize IP's power, should not come as a surprise.

Kaiser Wahab

New Copyright Frontier Opens on Stage Left

Often the interplay between litigation and legislation is a strange phenomenon that boggles the mind. In an era where politicians routinely lambaste so called activist judges for legislating from the bench, many are led to believe that judges simply put to paper whatever notion they have in their head. The reality is that judges often must fill in very narrow but contentious blanks in statutes that simply cannot be drafted to cover every contingency in the known and unknown universe.

A new and soon to be classic example of this principle is the recent suit over whether a director's stage directions are protected by copyright. There, a spurned director, Edward Einhorn, claims that the ultimately staged version of Tam Lin, the play he worked on for two months, borrows substantially from his stage directions. The Defendants claim that Plaintiff's directions were merely de minimis clarifications of the playwright's original directions. Unfortunately, the Copyright Act does not address whether stage directions are inherently protected and, if so, what are the standards to determine infringement. In other words, this is a matter ripe for judicial intervention. The New York Times has an excellent analysis of the case, the players and the history of this and related disputes.

More than legislative politics at stake, the decision could pour gasoline on the always collaborative fire of theater, creating another front in the war for attribution. And so the entire theater-making process is in jeopardy. If directors are afforded copyright protections it could result in a royalty chain extending to every run of the play. In fact, the price tag on the current suit is damages of 150K per performance--each one a potential infringement--for a grand total of $3 million (odd considering that statutory damages are awarded per the work of authorship, not the number of infringements). Oh, and the director is also suing for the $1000 he was supposed to be paid. This is a terrifying prospect for many.

So what's a judge supposed to do? It's a difficult proposition and Judge Kaplan of Manhattan Federal District Court (yes, the same Judge Kaplan of Rent fame: Thomson v. Larson) has no direct case law to rely on either, save a few close encounters. A similar suit in Florida, involving the popular Broadway play "Love! Valour! Compassion!," ended in settlement, despite the noteworthy refusal of the court to grant summary judgment in favor of the defendants' proposition that stage directions are inherently not copyrighted. There are those that would instantly view this as a usurpation of the traditional role of the playwright and an unnecessary legal intrusion--The Times piece has an excellent palette of one liners from various industry players who voice their opinion on the legitimacy of this case and its underlying proposition.

The seemingly divergent views of the Copyright Act's purpose: a tool to foster creativity through open discourse, or a tool to protect original and fixed forms of expression, preclude relying on the cozy ambiguity of the status quo, in contrast to the Plaintiff's proposition. I believe that directors in providing visual and temporal arrangement put the flesh, face, and a voice on the bones and soul of a script. To say that one is protected under copyright and the other isn't is to jump headfirst in the pool of spurious logic. That said, I'm mindful of the serious and painful consequences this might cause, but I am confident in the power of contracts and fair negotiation to resolve them. However, no matter what the outcome, the Judge, lawyers, and the law will come off the bad guys.

Kaiser Wahab