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There is a solution to greed pharmaceutical companies. Only a couple of countries have ever invoked this, for HIV and Hepatitis C drugs. Lobby your congressperson to use international law to their constituents' advantage for a change, instead of pandering to their donors.

Then there's the little fact that China routinely ignores anything the WTO says anyway...

That is simply not the case!
First you seem confused about how the WTO settles disputes: https://www.wto.org/english/th...
Second, here is a list with the details of every dispute China has been involved with in the WTO: https://www.wto.org/english/th...

Then there's the little fact that China routinely ignores anything the WTO says anyway...

That is simply not the case!
First you seem confused about how the WTO settles disputes: https://www.wto.org/english/th...
Second, here is a list with the details of every dispute China has been involved with in the WTO: https://www.wto.org/english/th...

Canada, and about a dozen other nations filed a suite with the WTO claiming the country of origin labels broke WTO rules by favoring domestic products. The WTO agreed. The U.S had little choice but to drop the labels or face billions in retaliatory measures. In any case the idea that you can tell if food is safe by a country of origin label is simply laughable. There are dozens of U.S food product recalls a year, some which have spread diseases that have killed people. What we really need is to improve the FDA's inspection regime to ensure that all food in supermarket shelves is safe. https://www.wto.org/english/tr...

But doesn't a trademark only cover a business area?

That certainly used to be the case.

With the introduction of TRIPS , however, special protection for "well-known marks" applies, under certain circumstances "to goods or services which are not similar to those in respect of which a trademark is registered." That is where such use could be taken to indicate a connection with the owner of the famous mark AND where "the interests of the owner of the registered trademark are likely to be damaged by such use." (Article 16(3)). As to what constitutes 'damage' to the trademark holder's interests, the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks on which the TRIPS provision is based suggest this may include "the use of that mark is likely to impair or dilute in an unfair manner the distinctive character of the well-known mark." (Article 4(1)(b)(ii) [Note however that unlike the actual TRIPS agreement, the Joint Recommendation envisaged that this should be a sufficient condition rather than requiring conjunction with any suggestion of connection].

This 'reform' left me anxious as to whether the basal principle of equality before the law is being offended against, however subtly, since the holder of a well-known mark would seem, at first gloss anyway, to receive more favourable treatment vis à vis other trademark holders.

As to whether PayPal either qualifies as a 'well-known' brand; whether the Pandora mark creates confusion as to connection and would damage the interests of PayPal, I offer no opinion.

I don't know of any PayPal music service. Maybe I confused it with Pandora...

Well yes, who knows who owns whom these days. ;)

Of course what you describe is forbidden by the General Agreement on Tariffs and Trade (GATT) to which the U.K. is a direct signator and which is additionally incorporated into the Marrakesh Agreement establishing the World Trade Organization (of which the U.K. is an indirect member). Unless the UK wishes to trade wholly outside the WTO, your approach is not viable.

Presumably the UK entertainment (and other publishing, including software) sectors want to keep enforcing their IP rights overseas via the WTO TRIPS mechanism, and that would be closed off to them if they were to fall out of the WTO by virtue of an outright violation of the GATT's and WTO's second basic princple, namely reciprocity as a mechanism to avoid the free-rider problem.

In other words, the U.K. cannot both try to be a free-rider on the argument you repeat (I know it did not originate with you) and also try to be a member of the WTO.

By the very first fundamental principle of the WTO, namely the most-favoured-nation-non-discrimination-rule, that would automatically allow every other member of the WTO to play the same game on the UK the moment it exited the WTO rule system, as well as other measures under the "fair competition" principle.

Feel free to consult https://www.wto.org/english/th... yourself.

Finally, it's "tariff". You might want to consult your spell checker as well, even though it probably counts as an expert system that you discount because it conflicts with the spelling you believe in. (You could also look up Dunning-Kreuger and then look into a mirror.)

From what I've read, the law was written by the MPAA/RIAA cartel, along with considerable input from Big Pharma. The law was designed more for the protection of those conglomerates, and less for any benefit of consumers.

That's the insight from a municipal US perspective.

Globally "the worst parts" of (Disney authored) US IP law have already been imposed (thus also locking the situation in in the US) most notably via the TRIPS agreement enacted under the WTO.

By means international agreements, the IP system has already rigged so that global wealth flows preferentially into the coffers of those US corporations who are engaged primarily in IP related business, to the expense of consumers and business even in developed nations (only countries with scant protection or respect for IP are immune to this flow of capital into the US) and of course, as you pointed out, consumers at home. In the same way that moving manufacturing from the US to labour-cheap countries has benefited consumers world-wide in the form of more affordable goods (albeit goods often of lesser quality), any diminution of the over-reaching IP protection offered mainly to US corporations will benefit international consumers especially, in the form of more affordable medicine, digital technology and also entertainment (hence, of course, the MPAA/RIAA's deep involvement in this process). Now it seems unlikely that entertainment jobs will be off-shored in the same way manufacturing jobs have been and IT jobs probably will be (Russian pop music anyone?), but the excessive income this industry is able to generate is founded upon global IP overreach.

Any diminution of the global IP regime will thus act to stem the flow of capital internationally into the US. While that may not be obvious form a purely municipal perspective, that is the clear reason that US administrations of both political colours from the Reagan administration onwards --1988 the year the US finally signed up to the 1886 Berne Convention marks the flip from America's prior global IP scepticism -- have, at the behest of IP corporations, pursued an ever more aggressive international IP regime.

The US has a specific Article II exemption from the WTO General Agreement on Trade in Services for "Space Transportation".

So... you're OK with countries simply forbidding foreign companies from doing business within them? Like, say, when the US banned Antiguan gambling websites, that was fine and dandy by you?

The WTO had quite a lot to say about that at the time. I think this is not the end of this story.

@nbauman: 'What about the non-tariff barriers? link

That's where they sneak in the provisions about intellectual property rights, "market pricing," "investor-state dispute settlement"?

Is this like the Trans-Pacific Partnership?

Are they going to settle disputes by private arbitrators, whose decisions can't be reviewed by courts or changes by national legislatures?'
-------

@Anonymous: "I'm still waiting to see how long it will take before someone realizes that America's anti-sex tourism regulations cut into a lot of business in Asia. While the Philippines were left out, I'm pretty sure the Japanese Yakuza manage a brothel or two dozen. I wonder what exactly those terms are that decide which corporations can sue over which regulations."

You go right ahead and piss all over the original posters very relevant points ;)

What about the non-tariff barriers? https://www.wto.org/english/tr...

That's where they sneak in the provisions about intellectual property rights, "market pricing," "investor-state dispute settlement"?

Is this like the Trans-Pacific Partnership?

Are they going to settle disputes by private arbitrators, whose decisions can't be reviewed by courts or changes by national legislatures?

Yep. These things don't seem to be as complex as you'd imagine.

When the Doha round failed at the WTO, lots of trade negotiators gave up. They thought it was hopeless. Eventually they narrowed the scope dramatically and produced a new deal (the Bali round) on reducing red tape imposed on importers/exporters. It was one of those "negotiators up until early hours of the morning, multi-day cramfest" kind of things. So I figured it'd be some horribly complex document I'd need years of legal training to understand.

Lol, nope. The agreement is here. The requirements are unbelievably trivial. Some of the things agreed to are, for instance, that import rules should be available on the internet, and if they change whilst a ship is sailing, the rules at the time of departure apply not the time of arrival. Other rules specify that when governments make decisions they should actually be issued in writing, and ports should do customs inspections on perishable goods before non-perishable.

The mind-numbing obviousness of what was agreed is sad. Reading it is quite depressing as it makes you realise how hopelessly inept and corrupt some countries must be.

Apparently one of the reasons the Doha round failed was an inability to agree on what units to use when weighing things. I mean seriously, wtf?

These things don't seem to justify the elaborate theatre that goes into them.

Your numbers are not existent:

compare the numbers in steel production from germany & U.S. to for example china, US ranks No 3 germany ranks No 7, but they do play in the same league. (1)

Also if you take a look at this map(2) you will recognize China, US and Germany on all exported goods do play in the same league.

according to the table from (3) which is based on data (4)

1.) China - 1.898.600
2.) US - 1.480.646
3.) Germany - 1.473.889

Conclusion:
IRONY_ON
Yeah, it's totally transparent to me, germany does really not sell anything!
IRONY_OFF

Germany does export many things, however not much on such low level things like raw steel.

Further conclusion, divide the export numbers and the amount of population, and you will recognize the efficiency gap.

1.) China - 1.366.040.000
2.) USA - 317.238.626
3.) Germany - 80.760.000

(1) http://en.wikipedia.org/wiki/L...

(2) http://de.wikipedia.org/wiki/D...

(3) http://de.wikipedia.org/wiki/W...

(4) http://stat.wto.org/Statistica...

The WTO (World Trade Organization) gave them an exemption from complying with US copyright laws, due to a 10+ year dispute over online gambling:

http://www.wto.org/english/tra...

At the DSB meeting on 28 January 2013, Antigua and Barbuda requested the DSB to authorize the suspension of concessions and obligations to the United States in respect of intellectual property rights. Pursuant to the request by Antigua and Barbuda under Article 22.7 of the DSU, the DSB agreed to grant authorization to suspend the application to the United States of concessions or other obligations consistent with the Decision by the Arbitrator.

The flood and crop damage we are experiencing are covered by federal insurance programs, but the extra damage is caused by growing emissions. We should not be raising premiums in response to this, but rather we should impose climate damage tariffs on imports from countries that are increasing emissions to try to gain advantage in world markets. GATT Article XX provides for this. http://www.wto.org/english/tra... Using greenhouse gas emissions as a weapon to disadvantage our agricultural exports and damage our manufacturing infrastructure near flood plains must be stopped.

Dont forget "COOL" (Country of Origin Labelling) designed to protect domestic meat production.

http://www.wto.org/english/tra...

Most of the EU contries are signatories to the Trade Related Aspects of Intellectual Property Rights (TRIPS) treaty. That sets a minimum copyright term of 50 years. Many EU countries now have longer copyright terms, after heavy lobbying from the US music industry.

So suggest that the EU should harmonize their nations' laws by using the 50 year TRIPS limit. The EU can do with without renegotiating any external treaties. Few works over 50 years old generate significant revenues, and longer terms just keep many works orphaned and forgotten, rather than in the public domain.

This would set a de-facto worldwide standard of 50 years. The US, with its much longer terms, would then be the major exception, and would be under pressure to reduce its copyright term.

It's a goal that's within reach. Whining about "copyright is evil" wiil get nowhere. Asking the EU to harmonize their laws with the WTO standard has a good chance of playing well in Brussels.

Both should respect each others property and businesses and laws

Guess who sets out those principles of international respect for property, businesses etc? The same WTO that you want shut down.

The US agreed in 1995 to abide by the WTO's principles and rules. If they no longer want to, they're free to withdraw, but they can't expect other nations to respect the rules if they won't.

False. The US would be near the top of the list. http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm Most other countries don't have the political might to get away with what the US is able to.

Besides violating over a dozen international treaties...

Untrue. There are exceptions to WTO treaty obligations, one of which includes national security.

...an unsubstantiated claim that there may be espionage/surveillance capability built into some devices.And let me be clear: No government or private agency has come forward with conclusive proof that any product made in China for commercial resale has these capabilities built into it at the direction of the Government.

There were many claims from many different parties that the Chinese government engaged in active spying/covert intelligence gathering on New York Times, Google, RSA. And those are just the ones we know. Lets also not forget the Mandiant Report that caused such a reaction online not too long ago. None of this is conclusive proof but it sure is a great cause for concern.

The economic and political rammifications of this are being glossed over -- this action doesn't just affect our relationship with China, but with any country we do business with, because they signed the same treaties, and now they're looking at our unilateral action and thinking: What makes us think the US won't renege on their deal with us?

The consequences you paint may well be overblown. There is evidence that the US is not the only country worried about China's activities. Australia, for example, has blocked Huawei from bidding for work on its $38 billion national broadband network, for the same security fears. Germany has sent representatives to the Chinese Government to ask them to stop, unofficially. Even the UK is so worried about the China spying problem that Jonathan Evans, director general of MI5 publicly warned that the West now faces an "astonishing" cyber espionage threat on an "industrial scale" from specific nation states.

Given that China itself uses national security as a reason for imposing restrictions on foreign commercial activities on its shores, I really don't think there is any basis to complain about the present measures introduced by the US.

they're signed up to wto which bars them from using trade barriers even when they are justified

OK, guy who proudly displays his ignorance. From the WTO's own statement of "what we do,":

The WTO’s agreements permit members to take measures to protect not only the environment but also public health, animal health and plant health.

The USA have registered the most complaints - 104 according to this list - so is not averse to using the mechanism but feels free to ignore a ruling and you say the country should "get over it"?

If I had a novel and Antigua started selling it, I would go to my government and ask wtf? Why are you not abiding by the WTO decision? If you aren't going to abide by WTO rulings that don't suit you, wtf are you doing being a member of it??

Disclosure: I am not a fan of the WTO.

I'm pretty sure Antigua and Barbuda attended and signed the Berne Convention and have joined WIPO [wipo.int]. Furthermore I believe the WTO is fully on board with all that considering their TRIPS agreement. So how in the hell is there such a thing as "a WTO approved 'warez' site" and how on Earth does Antigua think the WIPO is going to view this?

One of the things the WTO does when a country is found to violate WTO rules on tariffs, and where other methods of resolving the violation have not proven fruitful, is grant the victim special privileges against the aggressor in compensation (WTO members, by virtue of joining the WTO, grant the WTO authority to do this.) Relaxation of obligations under TRIPS is precisely what Antigua is seeking from the WTO in their application for permission to retaliate against the US violations. Antigua is hoping that the WTO

The Caribbean island is taking the unprecedented step because the United States refuses to lift a trade "blockade" preventing the island from offering Internet gambling services, despite several WTO decisions in Antigua's favor. The country now hopes to recoup some of the lost income through a WTO approved 'warez' site.

I'm pretty sure Antigua and Barbuda attended and signed the Berne Convention and have joined WIPO. Furthermore I believe the WTO is fully on board with all that considering their TRIPS agreement. So how in the hell is there such a thing as "a WTO approved 'warez' site" and how on Earth does Antigua think the WIPO is going to view this?

Note: I'm not saying what they're doing is wrong or right, I'm just asking how they are doing it given their history. I mean, sure, this stuff happens all over China but the government pays all the copyright holders lip service about how they're cracking down on it. If the Chinese government profits from it, they don't do so flagrantly like this appears to.

The correct response is for the countries in which the gambling sites in question, who are having their lawful business interefered with, reside to start taking retaliatory action - trade embargoes, expelled ambassadors, moratorium on extradition, closing airbases, etc.

Antigua and Barbuda tried something like that They won the international court case but are not able to collect on the damages awarded.

I spent some time checking the WTO anti-dumping page. The rules appear to be fairly tight, but it appears the US has followed them. I doubt China would have much of a case.

This is absolutely correct for process patents. This is a requirements of the 1994 TRIPs (Trade-Related Aspects of Intellectual Property Rights) treaty. Here is the text of Article 34:

1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred to in paragraph 1(b) of Article 28, if the subject matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process. Therefore, Members shall provide, in at least one of the following circumstances, that any identical product when produced without the consent of the patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented process:

(a) if the product obtained by the patented process is new;

(b) if there is a substantial likelihood that the identical product was made by the process and the owner of the patent has been unable through reasonable efforts to determine the process actually used.

2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the condition referred to in subparagraph (b) is fulfilled.

3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their manufacturing and business secrets shall be taken into account.

Whether this applies to software patents I am not sure (IANAL). As business process patents, it may, though it's not clear to me what the "product" would be. In any case, this is clearly the direction in which the law has been moving.

Ironically, by the way, negotiation that resulted in TRIPs was initiated by developing countries who found their economic development was being retarded by patents held by developed countries. Once the process started, however, it was hijacked by an unholy alliance of the pharmaceutical and entertainment industries. Poor countries were then effectively forced to join by developed countries, who withdrew from GATT leaving a choice between losing access to western markets and enacting onerous patent and copyright laws. Because of the impact on the cost of drugs for poor people, patents are a life-and-death issue. IP regulations, meanwhile, are expensive to implement, particularly in countries that lack the legal expertise:

the US Agency for International Development (USAID) now spends around a quarter of its annual budget on legal and regulatory training, including technical assistance from the US Patent and Trademark Office (USPTO), to help bring domestic legislation into compliance with TRIPs, including assessments of draft laws and recommendations regarding existing laws. (Christopher May and Susan K. Sell, Intellectual Property Rights: A Critical History, 2006

What the fuck are you talking about? The Indian government isn't stealing a cent from Bayer - as Slashdot readers are wont to constantly remind us in any story about how pirates are "stealing" billions from the record industry per year.

Besides, under the TRIPS agreement, this is perfectly legal. By law, Bayer must have the right to appeal (in India) the determination of what is adequate payment for royalties, but ultimately it is up to the Indian government to decide what the adequate royalty payment is. Other than appealing (and at best getting a slightly higher royalty rate) Bayer has absolutely no course of action available to it.

In other words, the United States bans imports of shrimp or shrimp products from any country not meeting certain policy conditions. We finally note that previous panels have considered similar measures restricting imports to be ‘prohibitions or restrictions’ within the meaning of Article XI.(599)”(600)

Basically, regulating based on policy conditions (nets that don't kill sea turtles in the example above, workers' wages in the case we're talking about) is considered a prohibition or restriction. Under WTO rules, you can't place a prohibition or restriction on trade from another WTO nation. Ain't free trade grand?

It's time for some serious pushback. The computer industry needs to propose the "Copyright Term Harmonization Act", which would bring US copyright law into conformance with the WTO TRIPS agreement. The TRIPS agreement only requires WTO members to offer a 50 year copyright term. The US goes beyond that. It's time to cut back to 50 years from first publication. That would deal with most of the "orphan works" problem.

The MPAA wouldn't care all that much. Revenue from 50 year old movies is tiny. (Except for Disney, but even there, they're mostly pushing remakes now, not re-releases of their original Cinderella.) The RIAA would scream. All the 50s and 60s music would go public domain, and record companies are still making money from 60s recordings.

Also, the FTC should be directed to resume their antitrust inquiry into record company pricing and payola.

Article 29 Conditions on Patent Applicants 1. Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application.

Emphasis mine.

It's likely that the current US scheme of rewarding a patent for things well known in the industry isn't a corruption, but rather a return to the original use of patent law. It was designed to give a monopoly in exchange for paying whatever fee the local ruler(s) demanded.

Still a corruption, or at least the USPTO not doing its job properly, because the US is a signatory of the Trade-Related aspects of Intellectual Property Rights (aka TRIPS) agreement, which specifies patents are meant for new inventions, regardless of what the term historically meant.

To the best of my knowledge. these lawsuits have to be run through the World Trade Organization.

This is also where ie. someone like Google would sue over those intrusion attacks made by China a few months back.

Mongolia has been a member of the WTO since January 29, 1997. (citation http://www.wto.org/english/thewto_e/countries_e/mongolia_e.htm)

The US has been a member of the WTO since January 1, 1995. (citation http://www.wto.org/english/thewto_e/countries_e/usa_e.htm)

TRIPs (http://en.wikipedia.org/wiki/Agreement_on_Trade-Related_Aspects_of_Intellectual_Property_Rights) covers patents (though there is debate over software patents, but it hasn't been decided either way yet)..

So it seems to me -- PLEASE CORRECT ME -- that the US & EU patents _would_ apply in Mongolia, or else it would be a WTO violation.

Mongolia has been a member of the WTO since January 29, 1997. (citation http://www.wto.org/english/thewto_e/countries_e/mongolia_e.htm)

The US has been a member of the WTO since January 1, 1995. (citation http://www.wto.org/english/thewto_e/countries_e/usa_e.htm)

TRIPs (http://en.wikipedia.org/wiki/Agreement_on_Trade-Related_Aspects_of_Intellectual_Property_Rights) covers patents (though there is debate over software patents, but it hasn't been decided either way yet)..

So it seems to me -- PLEASE CORRECT ME -- that the US & EU patents _would_ apply in Mongolia, or else it would be a WTO violation.

Er, no. A fixed grant is just one form of subsidy.

What I failed to find though was anything that supported your argument of mandatory enforcement.

It's in section 5 of the actual text of the treaty.

What if the patent holder was required to take a more active role in their patents and the applicability to proposed standards, as governed by industry and government bodies (e.g. ANSI, MILSPEC)?

Of course any standardization body may adopt the patent rules it likes. One could try to push ISO towards royalty-free licensing, but I doubt that this will get a majority among the member states. On the other hand, there are organizations like Ecma that will happily publish any standard a member wants to push through.

If a call went out looking for patents related to a specific standard, they would be required to participate in the standards body within, say, 3 months of being notified.

I am not a patent attorney (but I play one on the internet), but this might be allowed under TRIPS. After all, there is no such thing as a "right to patent ambush".

The rumors of our death have been greatly exaggerated.

The United States still makes many things, and is still one of the worlds largest exporters, with over $1 Trillion in exports in 2009.

See:

http://en.wikipedia.org/wiki/List_of_countries_by_exports

http://www.wto.org/english/news_e/pres10_e/pr598_e.htm

It appears that cars accounted for 11% of those exports:

http://www.trademap.org/tradestaz/Country_SelProductCountry_TS.aspx

Wow, cheating trade nations. I hope the US puts themselves on the top of that list. Trade problems with the US have been a constant battle from Canada since the Free Trade Agreement was signed in the 90's.

There are so many complaints to the WTO that they've had to separate them into different catagories. http://www.wto.org/english/tratop_E/dispu_e/distabase_wto_members4_e.htm

We have international courts and trade agreements. If they don't play fair, they can get slapped with tariffs or outright bans. And if they won't play ball at all, well, by our own rules we should not be trading with them.

You seem to be under the impression that our international treaties were written in a way to provide a fair shot for communities that favor strong environmental and labor protections over bottom-feeding rent-seekers.

Unfortunately, the WTO cares far more about trade barriers than the environment. While the WTO recognizes the right of nations to protect human health and their natural resources, it does not recognize any restraint on trade in "like products." So, for example, if you want to ban tuna caught in a way that threatens dolphins, you can't do that under WTO/GATT precedent if the end products (canned tuna) is the same. It doesn't matter that the method of making the product is different, and that customers may be concerned. Dolphin-safe & dolphin-unsafe canned meat is physically the same.

Here is a good list summarizing the big mixed-bag of WTO & GATT v. the environment lawsuits. Generally speaking, a law that governs the effects of a product once on US soil are fine, as long as you treat foreign and domestic products equally. A law that tries to govern how a product is made in another country which is indistinguishable from an equivalent product made elsewhere is generally not okay.

Reading about WTO/GATT cases is often very frustrating. Sometimes it's because the international bodies make decisions that seem grossly obstructionist to protecting the environment. Other times it's because countries are trying to hide flagrantly protectionist measures against foreign goods (while safeguarding domestic goods) under the rubric of protecting health & the environment. (Take the Thai cigarettes case, where the US sued Thailand for blocking cigarette imports for health reasons ...but still allowed the sale of domestic cigarettes.)

(btw, I've seen you shouting bullshit in many different areas, from running trackers to some china government and now this - do you even know what you're talking about?)

Ad hominim attacks will get you nowhere.

Also, are you really serious about us economy being closed?

Yes.

...and that's why it will fight ACTA.

Ah, a righteous uprising by the people is a much more reasonable explanation than their import/export imbalance being a lot different than the US. And compare what is being imported and exported with the United States, and you'll see what I'm trying to say.

Did you forget China and Taiwan, the Indian coders and phone support, even us mail manual processing being offshored to Singapore? You can't be serious.

We weren't talking about the price of tea in China. We were discussing why the ACTA is being fought by the European Union. Please stay on topic.

how come patent trolls are awarded patents in the first place? Would it be possible to make an applicant show proof that they are in the planning stages or are currently using what they are trying to patent?

That's called a 'working requirement' or a requirement to practice the invention. A few countries have such a requirement (Turkey, for example), but the requirement is usually riddled with exceptions that make it essentially toothless. There are several reasons why a strong working requirement is a bad idea, as I explained in a comment on a recent Slashdot story that suggested forbidding patent ownership by or assignment to non-practicing entities.

In the US patents are personal property--and thus freely assignable--by statute. 35 U.S.C. 261. Assignability is also guaranteed by Article 28 of the TRIPS Agreement, which is a treaty that the US is party to. So changing the assignability of patents would require amending the law and withdrawing from or amending a very important international treaty.

And even if the law were changed, it would mean that hundreds of patent holding companies would suddenly lose their patent rights because of an action by the government. That's called a taking, and the ex-patent holders would be able to sue the government for the value of the patents. It would be a massive litigation and cost the tax payer an enormous amount of money.

But anyway, how would we implement such a requirement? We could require that patents only be assigned to an entity that intended to practice the invention. Sounds great, right? No more patent holding companies, therefore no more trolls. There are at least five big problems with that:

1. Not all patents can be freely practiced because of other patents surrounding the technology. Imagine I own a startup company. If I invent a new transistor design I can't be expected to practice it myself: other companies have patents on things like manufacturing processes, bus designs, chip packaging, etc. I would have to license dozens of other patents in order to sell chips with my new transistor design. But that's backwards. Instead, I should license my one patent to companies like Intel and AMD and let them do the manufacturing and sales. But a requirement to practice means I couldn't do that; I'd have to practice it myself.

2. And what about pure research institutions like universities? They can't be expected to also become manufacturers.

3. But suppose we say it's worth making universities sell their patents. So now the patent will be owned by a single practicing entity. The patent can no longer stay with the university and be licensed to whoever will pay the fee. The end result is less competition in the market place for the finished product.

4. Okay, suppose we say that it's sufficient that the patent owner license the patent to at least one entity that is going to practice it. But then the law is too narrow. Almost no patent trolls actually rely on litigation damages for income; it's too uncertain and the margins are too narrow--and often negative. Litigation is just a tool to extract a licensing fee. So the end result is that the trolls can point to a manufacturer who licenses the patent and nothing changes.

5. What about patents on technologies that are ahead of their time? For example, suppose I invented an amazing new transistor design. It will make computers much faster but it requires X-ray lithography in order to work. Well, X-ray lithography is not cost-effective yet, so I can't really practice my invention. Does my patent just evaporate? How does that spur innovation?

As you can see, there are a lot of problems with such a proposal.

The article was written in a very superficial way. The author avoids going into detail on how her proposed solution would be implemented and why it would not have negative side effects. I suspect she has not actually thought very deeply about the problem or her solution.

But do patents have to be freely assignable?

Patents are personal property--and thus freely assignable--by statute. 35 U.S.C. 261. Assignability is also guaranteed by Article 28 of the TRIPS Agreement, which is a treaty that the US is party to. So changing the assignability of patents would require amending the law and withdrawing from or amending a very important international treaty.

And even if it were changed, it would mean that hundreds of patent holding companies would suddenly lose their patent rights because of an action by the government. Other patent holders would lose their right to freely assign their patents. That's called a taking, and the ex-patent holders and patent holders whose patents lost value because of the restriction would be able to sue the government for the value of the patents. It would be a massive litigation and cost the tax payer an enormous amount of money.

But anyway, how does she suggest we restrict the assignability of patents? We could require that they only be assigned to an entity that intended to practice the invention. Sounds great, right? No more patent holding companies, therefore no more trolls. There are at least five big problems with that:

1. Not all patents can be freely practiced because of other patents surrounding the technology. Imagine I own a startup company. If I invent a new transistor design I can't be expected to practice it myself: other companies have patents on things like manufacturing processes, bus designs, chip packaging, etc. I would have to license dozens of other patents in order to sell chips with my new transistor design. But that's backwards. Instead, I should license my one patent to companies like Intel and AMD and let them do the manufacturing and sales. But a requirement to practice means I couldn't do that; I'd have to practice it myself.

2. And what about pure research institutions like universities? They can't be expected to also become manufacturers.

3. But suppose we say it's worth making universities sell their patents. Well, now since they have to sell the patent only a single entity will get the rights. It can no longer stay with the university and be licensed to whoever will pay the fee. The end result is less competition in the market place for the finished product.

4. Okay, suppose we say that it's sufficient that the patent owner license the patent to at least one entity that is going to practice it. But then the law is too narrow. Almost no patent trolls actually rely on litigation damages for income; it's too uncertain and the margins are too narrow and often negative. Litigation is just a tool to extract a licensing fee. So the end result is that the trolls can point to a manufacturer who licenses the patent and nothing changes.

5. What about patents on technologies that are ahead of their time? For example, suppose I invented an amazing new transistor design. It will make computers much faster but it requires X-ray lithography in order to work. Well, X-ray lithography is not cost-effective yet, so I can't really practice my invention. Does my patent just evaporate? How does that spur innovation?

So the author has carefully avoided actually explaining how her solution would be implemented and how it would be narrow enough not to have side effects yet broad enough to be effective yet not invite more litigation or government regulation.

Trademark law dealt with a similar problem, a worry about trafficking in intent-to-use trademark applications, and solved it by forbidding the assignment of them "e

When the Chinese became part of the WTO, they signed treaties stating:

"China will provide non-discriminatory treatment to all WTO Members. All foreign individuals and enterprises, including those not invested or registered in China, will be accorded treatment no less favourable than that accorded to enterprises in China with respect to the right to trade." - WTO, 2001

In other words, "all foreign enterprises will be treated the same as domestic enterprises in China".

By pulling Avatar in favor of domestic movies, limiting foreign films to 10 days run time, and limiting the number of screens available China is violating its commitments under the law. It would be like the US banning Chinese manufactured imports because those imports were too successful compared to domestic brands.

China needs to honor its commitments to free trade, or be kicked out of the WTO. Which, coincidentally, would make it legal for the US to ban their imports.

Of course Germany's law don't apply in the USA but there are many agreements between developed countries. Eg WTO agreements

http://www.wto.org/english/docs_e/legal_e/final_e.htm

The IP one:
http://www.wto.org/english/docs_e/legal_e/27-trips.pdf

I wonder if some of these agreements oblige the USA to cooperate with Germany's laws. Having the entry on the English Wikipedia site is of course visible in Germany.

Of course Germany's law don't apply in the USA but there are many agreements between developed countries. Eg WTO agreements

http://www.wto.org/english/docs_e/legal_e/final_e.htm

The IP one:
http://www.wto.org/english/docs_e/legal_e/27-trips.pdf

I wonder if some of these agreements oblige the USA to cooperate with Germany's laws. Having the entry on the English Wikipedia site is of course visible in Germany.

Where the law of a Member allows for other use of the subject matter of a patent without the authorization of the right holder ... or in cases of public non-commercial use

No manufacturing sector? How did that myth become so popular?

Okay, I compared US to Canada, England, France, and Germany like you said. Congratulations, Germany is ahead of us and the other three aren't. We're the #3 exporter of manufactured goods in the world. Germany is #1. That's good for Germany, but it's hardly a basis to criticize America as lacking a Manufacturing sector. If you want the numbers check them out: http://stat.wto.org/Home/WSDBHome.aspx?Language=E

I agree that there are a number of problems with the American economy, but let's not lose sight of the basic facts. The United States of America has almost THREE TIMES the GDP of any other country in the world. So yes, we spend more for basic services like transportation, health care, education, etc, but we can afford to. Our per capita income is higher than theirs.

Is America the best place to live in the world, I doubt it. Is it getting worse than it was, probably. Is that a cause for concern, sure. However, the sky isn't falling here. Let's try to keep a little perspective. Just because people don't want to buy our cars doesn't mean the entire manufacturing sector shut down. Just because we've got some moderate unemployment at the moment doesn't mean we're collapsing. America is still the biggest economic power in the world, and even if we stay on this path for the rest of our lifetimes, that isn't likely to change.

Their situation is no different. The law doesn't distinguish between a business playing the radio and any other person playing the radio

Sure it does, beyond a certain point. At the low end of the spectrum, there's no need to make such a distinction, because all parties are exempt who follow the rules.

Offtopic and a little trollish: This lack of distinction at the low end actually got the U.S. in a bit of trouble at the WTO. It seems that the European Communities (along with Australia, Brazil, Canada, Japan, and Switzerland) didn't think that an outright "homestyle" exemption was allowed under existing trade agreements, so they complained.

The United States lost.

Rather than changing the law (which Congress doesn't want to do), the United States agreed to make a lump-sum payment for a European performing rights society (see the 26 June 2003 Notification of a Mutually Satisfactory Temporary Arrangement) and make a bunch of pointless reports that all say something like "The US Administration will work closely with the US Congress and will continue to confer with the European Communities in order to reach a mutually satisfactory resolution of this matter."

So why is the U.S. government willing to shell out money and waste time so that small businesses can play music royalty-free, but makes it possible for copyright owners to sue file sharers for $750 to $150,000 per song? Maybe it is because the small business owners ask more nicely.

Yes, it's remarkable that the US is pursuing this weird, illegal vendetta against international online gambling when recent legal decisions have conclusively proved that its actions are unsupportted by anything approximating a legal right. The NY Times apparently knew this back in 2004, but it has apparently forgot by now.

The WTO's decision regarding the inability of the US, or its constituent States, to prohibit international commerce in the culturally protected arenas of sport and gambling is clear and, for a massive bureaucracy, surprisingly understandable. I think we can expect a lot more legal cases against the US by countries with offshore gambling economies. The WTO withheld awarding Antigua and Barbuda virtually unlimited license to duplicate any or all intellectual property copyrighted within the US. That could have cost billions, and really pissed off Microsoft. In a followup case, given persistent recidivism by the defendant (the US), a larger award might be more possible.

The United States was not able to invoke successfully the GATS exceptions provisions. In this regard, the United States was not able to demonstrate that the Wire Act, the Travel Act and the Illegal Gambling Business Act are âoenecessaryâ under Articles XIV(a) and XIV(c) of the GATS (i.e. âoeexceptionsâ provisions, including for public morals) and are consistent with the requirements of the chapeau of Article XIV of the GATS; ...
On 7 April 2005, the report of the Appellate Body was circulated. The Appellate Body: ...
upheld the Panelâ(TM)s finding, albeit for different reasons, that the United Statesâ(TM) Schedule includes a commitment to grant full market access in gambling and betting services.