Every three years, the United States Copyright Office seeks proposals for exemptions from the Digital Millennium Copyright Act ("DMCA").  As part of the DMCA, it became unlawful to circumvent access control measures copyright holders used to secure their copyrighted works.  For example, it is arguably a violation of the DMCA to use a program to "break" the content scrambling system ("CSS") encryption used for standard DVDs in order to make a copy of the DVD, even if making such a copy would otherwise be considered fair use under copyright law (although a recent decision by the Fifth Circuit arguably holds to the contrary).  The purpose of the exemptions is to adapt to any unintended consequences of the DMCA, such that lawful uses of copyrighted works are not unduly restricted.

Today, the Copyright Office issued the list of exemptions in this go-around of the triennial rulemaking process.  Included among the newly-granted exemptions are circumvention of the above-mentioned CSS encryption to use "short portions" in new works for the purpose of criticism or comment, when the use is educational, noncommercial, or for documentary filmmaking.  This is an important exemption, as it arguably covers the majority of videos on sites such as YouTube where short portions of movies, televisions shows, and the like are posted as a portion of a remix or other creative work.

In addition, unlocking a mobile phone to allow software to be run (commonly called "jailbreaking") is also exempted from the DMCA.  Notably, this does not prevent phone providers (such as Apple) from placing the restrictions on a phone in the first instance, it simply makes it not a DMCA violation to remove the restrictions.

The Office also permitted circumvention of prohibitions on "read-aloud" functionality of e-books.  Some e-books have been sold with a limitation that prevents the user from using their e-reader's "read-aloud" function, essentially turning the e-book into an audio book.  This is now not a violation of the DMCA anti-circumvention provisions.

The Copyright Office revisits these exemptions every three years.  Click below for the full text of the exemptions granted, or head to the Copyright Office website for the full release.

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In a press release today, the USPTO has proposed a tiered examination system where applicants could choose to pay a higher fee in exchange for quicker examination of an application or could opt for a delay of up to 30 months before docketing for examination.  This is the latest in Director Kappos' attempts to control application pendency at the Office.

The "prioritized examination" track would be much like the current accelerated examination system in that final action on the application would be targeted to be within one year of filing.  However, applicants would not have to provide the onerous examination support document with the application.

Similarly, the slow track would permit applicants to elect a delay of up to 30 months before the application is placed in the examination queue.  There is no indication in the press release as to whether applications filed under this track would receive a break on the filing fee.  However, this track would seem to be a favorable choice for companies that would prefer their patents to issue later (and therefore, with patent term adjustment, expire later).  

There will be a Federal Register notice with additional details tomorrow [UPDATE (6/4):  click here for the Federal Register Notice], and a public hearing is set for July 20 at the USPTO. 

To read the full press release, click here.

In a press release yesterday, the USPTO announced it was beggining a pilot program to permit accelerated examination of patent applications directed to "green" technologies. The announcement came on the same day that the EPA announced it considers greenhouse gases a threat to public health and the environment. The announcements came just before the start of the United Nations Framework Convention on Climate Change.

In a Federal Register notice today, the specifics of the program were provided in more detail.  The applicable technologies include those that materially (1) enhance the quality of the environment, (2) contribute to discovery or development of renewable energy resources; (3) contribute to the more efficient utilization and conservation of energy resources; or (4) contribute to greenhouse gas emission reduction.  The requirements for environmental quality enhancement applications are defined in MPEP § 708.02(V).  The "renewable energy resources" include "hydroelectric, solar, wind, renewable biomass, landfill gas, ocean (including tidal, wave, current, and thermal), geothermal, and municipal solid waste, as well as the transmission, distribution, or other services directly used in providing electrical energy from these sources."  Inventions that deal with more efficient utilization and conservation of energy "include inventions relating to the reduction of energy consumption in combustion systems, industrial equipment, and household appliances."  Greenhouse gas reducing inventions include those "that contribute to (1) advances in nuclear power generation technology, or (2) fossil fuel power generation or industrial processes with greenhouse gas-abatement technology (e.g., inventions that significantly improve safety and reliability of such technologies)."

As to the technical requirements for the petition, they include:

• The petition must be filed in a nonprovisional, non-reissue application that was filed on or before the date of the notice (December 8, 2009) 
• The application must be classified in one of the classes identified in the Federal Register notice
• The application must have no more than 3 independent claims and 20 total claims, or a preliminary amendment must be filed to reduce the number of claims at or below these thresholds
• The claims must be directed to a single invention and include a statement that if the USPTO determines that the claims are directed to multiple inventions, the applicant will agree to make an election without traverse in a telephonic interview, and elect an invention that meets the eligibility requirements 
• The claimed invention must materially enhance the quality of the environment or materially contribute to: (1) the discovery or development of renewable energy resources; (2) the more efficient utilization and conservation of energy resources; or (3) greenhouse gas emission reduction, and explain how this standard is met
  
• The petition must be electronically filed on or before December 8, 2010, and at least one day before a first office action is mailed (which may be a restriction requirement)
• The petition must include a request for early publication and the publication fee
  

As this is only a pilot program, only the first 3,000 applications will be elegible for accelerated examination on this basis.  However, the USPTO anticipates extending the program if it is successful.

For USPTO the press release, click here.  For the Federal Register notice with more details of the program and the requirements to participate, click here.  USPTO Director Kappos also provides this entry on his official blog on the subject.

On Monday, the Supreme Court heard oral argument in Bilski v. Kappos in an effort to determine the proper test to be applied to determine whether a claim is patentable subject matter under § 101.  The oral argument transcript is available from the Court's website here.

Click below for our thoughts on the arguments and some of the more interesting quotes from the Justices' questioning.

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In a press release, the USPTO announced the availability of the e-Office Action program for patent applications.  Under the program, applicants or attorneys may sign up to receive an email notice when an office action is mailed in an application, and can then download the office action from Private PAIR.  This avoids the time delay of mailing the office action, thereby getting notice of the action sooner than previously possible (and also has the benefit of reducing mailing and processing costs at the USPTO).  If the office action is not downloaded within 7 days, the USPTO would then send a postcard notifying of the office action.

The program is opt-in, so current applicants and attorneys will continue to receive paper copies of office actions for the time being.  However, it seems likely that in the foreseeable future the USPTO will implement this program for all applications.

Useful links:

• Press release
• e-Office Action program page
• Private PAIR (to opt-in or out of the program)
  

According to the website of Senator Patrick Leahy, President Obama will nominate David J. Kappos to be the next Undersecretary of Commerce for Intellectual Property and Director of the U.S. Patent And Trademark Office.  The nomination does not yet appear on the White House's nominations and appointments page (Update:  here is the While House press release).  Back in May, it was speculated that Mr. Kappos may be selected for the position.

Mr. Kappos served as vice president and general counsel for IBM and is on the board of directors of the AIPLA.  Other resources on Mr. Kappos:

• IP Watchdog
• "Why IBM's Kappos is Unfit to be the Next PTO Director"
  

HT:  271 Patent Blog.

In the past day, there has been two interesting bits of news in the world of cases alleging copyright infringement by way of peer-to-peer file sharing.

The first is that the individuals who operate and maintain the servers that host The Pirate Bay, the world's largest bittorrent tracker, were held to have committed criminal copyright infringement by a Swedish court.  The four individuals were each sentenced to a year in prison, and ordered to pay a combined 30 million kronor ($3.6 million) in damages, substantially less than the $17.5 million in damages requested by the media companies.  The Pirate Bay has video press conference on its site.  The individuals are calling the verdict a win, vowing to appeal their conviction.  As an author who wrote a book about the Swedish piracy movement stated: 

If they're convicted, they'll be martyrs and the "piracy" movement will continue working for what they believe in, even more strongly. If they win, the signal to the public is that file sharing isn't illegal and The Pirate Bay will basically have achieved its goal.

The issue is far from over, with an appeal of the convictions upcoming, the leader of Sweden's Pirate Party issued a statement to the BBC that the verdict was a "gross injustice," and that:

This wasn't a criminal trial, it was a political trial. It is just gross beyond description that you can jail four people for providing infrastructure. There is a lot of anger in Sweden right now. File-sharing is an institution here and while I can't encourage people to break copyright law, I'm not following it and I don't agree with it.  Today's events make file-sharing a hot political issue and we're going to take this to the European Parliament.

Despite the convictions, The Pirate Bay's website will continue operation, as the servers hosting it have been relocated outside Sweden.

The other development is a decision yesterday by the First Circuit reversing a district court's decision in a U.S. file sharing case.  In that case (In re Sony BMG Music Entertainment), the district court granted the defendant's request that pretrial hearings be made available via webcast over the objections of various recording company plaintiffs.  The First Circuit held this was not permitted based on the policy of the judicial conference of the United States and the district court's local rule 83.3.  All relevant court documents may be found on the Recording Industry vs. the People blog, which is operated by Ray Beckerman, an attorney who has represented file sharing defendants. 

All in all, a busy 24 hours in the world of file sharing cases.

Today at 10:00 Eastern time the Senate Judiciary Committee will hold an executive business meeting to discuss the Patent Reform Act of 2009.  The committee will consider some proposed amendments that represent a compromise on several key issues that have been points of contention over the course of the past several years when patent reform has been on the legislative agenda.  Among these is the issues of damages, with the compromise version substantially softening the limits on infringement damages that have been dealbreakers in past versions of patent reform legislation.

A webcast of the meeting is available online at this link.

Update (1:45pm):  Several amendments were considered at the meeting, with a total of three being adopted either at the meeting or before.  The bill has passed out of committee and has been referred to the full Senate.  No word on when, if ever, the bill will come up for a vote in the Senate; the Patent Reform Act of 2007 passed the Judiciary Committee easily but was never voted on in the full Senate.

Here are the amendments that were considered and their status:

• Amendment GRA09451 (Leahy, Specter, Feinstein, Cornyn, Whitehouse, Kaufman) - Adopted
• Amendment GRA09459 (Kyl) - Defeated, Vote: 4-13
• Amendment GRA09294 (Coburn) - Motion to Table Agreed To, Vote: 10-9
• Amendment GRA09400 (Leahy, Hatch) - Adopted - March 31, 2009
• Amendment GRA09350 (Leahy, Hatch, Whitehouse, Specter, Feinstein, Kyl) - Adopted - March 26, 2009

More detail after the jump.

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Yesterday Senators Patrick Leahy and Orrin Hatch (chairman and ranking member of the Senate Judiciary Committee) and Representatives John Conyers and Lamar Smith (chairman and ranking member of the House Judiciary Committee) introduced the Patent Reform Act of 2009. 

Click below for more detail of the newly-introduced legislation, as well as links to other coverage of the legislation and press releases by the various industry groups who have lobbied heavily on the issue over the past several years.

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It's a sad day in the blogosphere, as Bill Patry, author of Patry on Copyright and the Patry Copyright Blog, has announced he is shutting down his blog.  We've linked to Professor Patry's commentary on copyright law on many occasions, and his additional insight into copyright issues will be missed.

Other blogs noting his departure:

• Chicago IP litigation blog
• Fire of Genius
• Patently-O
• Rob Hyndman

He provides two reasons for his departure, the second of which is "profoundly depressing," as it is due to the current state of copyright law:

I regard myself as a centrist. I believe very much that in proper doses copyright is essential for certain classes of works, especially commercial movies, commercial sound recordings, and commercial books, the core copyright industries. I accept that the level of proper doses will vary from person to person and that my recommended dose may be lower (or higher) than others. But in my view, and that of my cherished brother Sir Hugh Laddie, we are well past the healthy dose stage and into the serious illness stage. Much like the U.S. economy, things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.

It is profoundly depressing, after 26 years full-time in a field I love, to be a constant voice of dissent.

His voice will be missed in the blogosphere.

Update:  Based on the response online, Mr. Patry has decided to put the blog's archives back online.