[Ip-health] Amazon promotes essential facilities, reasonable royalty rules

[Amy Kapczynski]

This is an example of what seems to be increasing tension between IT
based industry and biotech and pharma over patent reform. The IT
industry typically uses IP defensively and has to deal w/ thousands
of patents in the same product and serious problems w/ patent trolls,
and is pushing for forms of patent reform (including the eBay case)
that pharma and biotech strongly oppose.

There are some signs that the alliance of "IP industries" in the US
is starting to break down over these issues. For an interesting
example, see the brief filed by drug company Eli Lilly in a pending
Supreme Court case, Microsoft v. AT&T.  The case has to do w/
extraterritorial application of US software patents, and Eli Lilly
filed a brief to make the argument that software patents themselves
are invalid under the US Patent Act.

Interesting, no?  The drug companies may be getting to a point where
they'll actively advocate against software patents, to stop  the push
for patent reform that is coming from the likes of Amazon and IBM.

excerpts from Eli Lilly's brief: (available at http://
www.patentlyo.com/patent/2007/02/microsoft_v_att.html)
"This case is symptomatic of how profoundly the law of patenting
inventions can go astray if rigor is not present in the application
of the conditions and requirements for patenting."  "[S]oftware code
by itself is not patent-eligible subject matter under section 101" of
the Patent Act, because "[s]oftware, whether machine-recognized
object code or human-intelligible source code, is =96 in and of itself
=96  simply information."

ak

On Mar 22, 2007, at 12:13 PM, robert weissman wrote:

> [snip]
>
> In Congress, Amazon.com seeks legislation on intangible patents,
> such as
> business methods and other shopping-cart-like items. In Amazon's view,
> anyone considering suing a company over copyright or trademark
> infringement should have to warn it first and give the company the
> chance to stop voluntarily. Misener said Amazon also proposes capping
> damages at a "reasonable royalty" when a patent holder does not --
> or is
> not able to -- actually sell a product or service that relies on
> the patent.
>
> [snip]
>
> http://www.politico.com/news/stories/0307/3191.html
>
> Amazon.com Lobbyist Has Full Cart of Issues
>
> By: Jeff Patch
>  March 19, 2007 06:38 PM EST
>
> For a bibliophile like Paul Misener, working for one of the world's
> biggest online booksellers is about as good as it gets. The top
> lobbyist
> for Amazon.com has a library of antique documents that includes the
> first publication of George Washington's papers in 1820 and 1,500
> other
> items. Mix in his strong interest in American political history,
> and the
> gig sounds like the perfect fit.
>
> "I like to think that I don't have the cynicism that so many people
> involved in politics have," he said. "I never, ever want a policymaker
> to do me a favor. I want the right policy adopted."
>
> Misener, 44, oversees global government relations in North America,
> Europe and Asia for the Internet retailer, work that has taken him
> to 40
> countries on six continents. He also deals with the company's outside
> counsel on congressional issues such as patent law, Internet taxes and
> the huge controversy on Net neutrality, a battle over whether
> companies
> and people should pay fees for faster access to some Web content.
>
> He joined Amazon.com in 2000 after advising the company as a lawyer
> with
> Wiley Rein & Fielding (now Wiley Rein). Richard E. Wiley hired Misener
> as an aide-de-camp when Wiley was chairman of a government group
> formed
> by the Federal Communications Commission to help create standards for
> high-definition television. The 25-member panel and nearly 1,000-
> member
> support staff consulted with major television companies on the
> project,
> which the FCC approved in 1996.
>
> "He really understood these people's business better than some of the
> companies did," Wiley said of Misener.
>
> Other former colleagues say the lobbyist is a Superman of sorts, whose
> understanding of technology issues is bolstered by a degree in
> engineering from Princeton University. Misener served as chief of
> staff
> to Harold Furchtgott-Roth, an FCC commissioner from 1997 to 2001.
>
> "He seems to thrive on little sleep," said Furchtgott-Roth, now
> president of an economic consulting firm in Washington. "He would
> sometimes go to meetings on the West Coast, take the red-eye back and
> make a full day of meetings the next day in Washington. You wouldn't
> even know because he wouldn't say anything."
>
> Between meetings and red-eyes now, Misener works with two Amazon
> associates in a 19th-century row house on C Street Northwest. His
> office
> is furnished with drawerless desks topped with unfinished slabs of
> wood.
> The desks typify Amazon's corporate style of fighting cost. Chief
> Executive Officer Jeff Bezos initiated the policy in 1995 in an effort
> to maintain low overhead and pass on savings to customers, Misener
> said.
>
> In Congress, Amazon.com seeks legislation on intangible patents,
> such as
> business methods and other shopping-cart-like items. In Amazon's view,
> anyone considering suing a company over copyright or trademark
> infringement should have to warn it first and give the company the
> chance to stop voluntarily. Misener said Amazon also proposes capping
> damages at a "reasonable royalty" when a patent holder does not --
> or is
> not able to -- actually sell a product or service that relies on
> the patent.
>
> The fight over Net neutrality also weighs on Amazon. The issue
> devolved
> into a partisan battle and stalled last year. Misener said
> Democrats are
> more likely to support the company's position against preferential
> Internet access, although he decries how partisan the issue has
> become.
> "The Internet is not like traditional media," he said. "The
> Internet is
> the opposite: Consumers decide."
>
> Amazon has a bipartisan political action committee, which the company
> started in 2000 when it opened its Washington office. In the 2006
> election cycle, the PAC gave $88,500 to federal candidates (54 percent
> to Democrats, 46 percent to Republicans), according to the Center for
> Responsive Politics. At $4,000, Rep. Chris Cannon (R-Utah) was the
> largest recipient on the House side; Kent Conrad (D-N.D.) got the most
> in the Senate, $5,000. Misener donated $5,000 to the PAC in 2005 and
> another $5,000 last year.
>
> "Paul is a well respected and effective advocate for innovation and
> technology in a competitive marketplace," Cannon said. "Amazon is
> lucky
> to have someone of his caliber."
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