Tag Archives: United States Patent and Trademark Office

It’s all about interpretation

It started late Friday for me when the Financial Post gave me ‘Fearing Huawei curbs, Deutsche Telekom tells Nokia to shape up‘, the article (at https://business.financialpost.com/pmn/business-pmn/fearing-huawei-curbs-deutsche-telekom-tells-nokia-to-shape-up-2) gives a few items and linking that to another post gave me a lot to consider. First we need to see “Deutsche Telekom has told supplier Nokia it must improve its products and service to win business installing the German group’s 5G wireless networks in Europe, according to internal documents and a source with direct knowledge of the matter“, the issue is twofold, yet the important part is not a given. Here we see the story behind ‘Nokia must improve its products and service‘, yet the story focuses on services, a little less on the product. So as we take notice of “the German group considered Nokia the worst performer among all suppliers in 5G tests and deployments“, yet because of the US bully tactics, Nokia is feeling a little too safe to be worried, which is nice for Nokia, but it is one of a few items hitting the European Telecom providers. The entire Nokia matter is shown with one simple statement “Deutsche Telekom’s willingness to give Nokia another hearing shows the difficulties mobile companies face over pressure from the United States“, it is more than bully tactics, the station we now see is that those giving in to the US are facing 2 larger ones, the first being the implementation by players like Nokia on a European front, the larger issue is not merely Nokia, the larger issues is seen in the IP Watchdog that gives us (as did the news a few days ago) ‘Huawei Sues Verizon‘, we are given that “Chinese telecom giant Huawei filed two lawsuits in U.S. district court, one in Eastern Texas and the other in Western Texas, asserting claims of 12 patents against Verizon Communications. The suits were filed after Huawei “negotiated with Verizon for a significant period of time”“, let me explain why it is a larger issue. 

Firstly, the fact that we see ‘negotiated with Verizon for a significant period of time‘ leaves us with the larger setting that this isn’t nothing, in addition, as the US was so proud to give the stage of 5G ready, we see that at least one vendor might not have been ready, no matter how this case slices and dices 5G, a dozen patents are in this, as such they can be checked and if so, the entire 5G bubble will explode (not burst) in the Trump administration face right in the middle of re-election. In addition, the fact that the US has not given one part of evidence setting the stage against the US at present gives a much larger scene over the optional backdrop of failing US equipment whilst they are trying to roll out 5G, in light of all this that earlier speculated 4-6 years delay for national 5G will optionally reach up to a decade, which means that the entire 5G setting is game over for the US (optionally depending on this trial). As I personally see it, the Trump Administration will have to rely on the brightest minds at the USPTO (United States Patent and Trademark Office) to investigate BEFORE the trial commences how big an issue it might be, if that is not done the Trump administration will end up with egg on its face whilst the 5G networking issue will hang around its neck like an anchor keeping them in place, it would be a global setback for them.

Now we cannot state that Huawei has a case or that Verizon is innocent, but a dozen patents will impede it as they need to be examined and the courts will take up to two years, no matter what delays are seen, if Verizon continues, all their revenue will go straight to China with a lot more in penalties, that was never in anyone’s cards.

Returning to the FP we also see: “It is well known that Deutsche Telekom is pursuing a multi-vendor strategy so that we are not dependent on just one supplier. This is an elementary part of our security philosophy,” said Claudia Nemat, Deutsche Telekom’s head of technology and IT. “In 2019 we have made many steps together with Nokia to make Deutsche Telekom’s networks evolve towards 5G readiness, including all network domains, from radio and fixed access to transport and core, and continue to do so in 2020 and onwards.” Federico Guillen, Nokia’s president of customer operations in EMEA and APAC, said: “We continue to work extensively with Deutsche Telekom which is one of our most significant customers, both in Europe and the U.S.”” this all makes sense, there is no hidden agenda (or is there), most larger companies will not be set to the leash of one large giant, there is no opposition to that, but in this case we see that for some reason Ericsson is not considered, a Swedish company that is supposedly ready for 5G deployment, now we can say that Ericsson is a large player and it is (to some extent) the pride and joy of Sweden with as far as I can tell a much larger state of international readiness than Nokia ever was, as such why is the focus on Nokia? In this stage of 5G and the need to grow where a telecom player can, why is Ericsson not regarded as a backup for Nokia? When we realise that “in 2017 Nokia was dropped entirely from that market segment when Ericsson was handed a 30% share of Deutsche Telekom’s spending on it, reports in the trade press said at the time. It was the first of several wins for Ericsson“, Ericsson is indeed the other player, it seems like a desperate setting to have merely to keep Huawei out, so in this, these so called cut-throat players are unwilling to play hard ball. I wonder why? I have seen some of these players play fast and loose and play hardball as well and seeing the optional failure by Nokia and the subsequence unwillingness to consider Huawei, we see a puch from Germany orchestrated by the US, the EU 5G solutions will take a firm beating at present making them (optionally) ahead of the US and optionally behind other players, players that were never in such a high place before and that was before the patent infringement accusations, now the mess becomes a much larger setting.

All whilst we consider “Deutsche Telekom then suspended vendor talks to await the outcome of a debate in Berlin over the security of critical national networks, where senior lawmakers from Chancellor Angela Merkel’s conservative party back the U.S. call to bar Huawei” in this I believe that the US has set the fate of Angela Merkel as well, when the US stumbles even once, and the beginning of that was shown 5 days ago (at CNN) with ‘Angela Merkel lambasts her party’s cooperation with far-right AfD‘, this 5G anchor is not merely around the neck of Merkel as well, it could limit the actions of the CDU and give power to the AfD. Even as we take notice of ““It’s a very big deal … the consensus amongst democrats that there would be no cooperation with far-right parties ended yesterday,” Kai Arzheimer, a professor of Political Science at the University of Mainz, told CNN. “So it was a historic day,” he added“, the impact is larger, when the US bully tactics are seen for what they are, and as the US remains debatable in not presenting any evidence against Huawei, there is every chance that the far right in Germany will get to shout that the CDU has reverted to being a puppet of the US and they will point at Deutsche Telekom, a group laced with cut throat profit makers as evidence, the moment that is accepted, the US will not merely lose Germany, at that point it needs to consider France, the Netherlands and Spain lost as well, Italy is a larger problem (for Huawei) but it is too early to shout on that. In addition, as 2 of the big 4 change course, especially as the patent infringements fire up the others will take money for promises and full steam reverse whatever plan they had, the waters will be too shallow and too dangerous to sail in the US domain.

All this remains an issue when we see the Huawei stage of affair as they give the world “Huawei negotiated with Verizon for a significant period of time, during which the company provided a detailed list of patents and factual evidence of Verizon’s use of Huawei patents. The two parties were unable to reach an agreement on license terms. “We invest heavily in R&D because we want to provide our customers with the best possible telecommunications solutions,” continued Dr. Song. “We share these innovations with the broader industry through license agreements.”“, this does not give any details of who is in the right, but if the Apple Inc. v. Samsung Electronics Co. is anything to go by, the court took almost 5 years and in the end “On December 6, 2016, the United States Supreme Court decided 8-0 to reverse the decision from the first trial that awarded nearly $400 million to Apple” in this there is a larger stage to patent infringements and in this it was a global impact, in the Huawei case it is more than merely infringement, if the US has a 5 years setback there will be a much larger stage and even as the US wants to push through this case, the world is watching. Not only has the US given accusations against Huawei without clear evidence for the world to scrutinise, the Patents will be open to read for all and this changes the stage to a much larger degree. The fact that the Apple issue went past Dutch, Australian, British, German and Japanese courts give rise to that, the Huawei case could be an equally large and for the US a much larger consideration towards indiscriminate judging of American values, the world will scream for evidence in the middle of an election campaign, it does not sit pretty to be part of this administration. OH and the Apple trial was merely about a phone, a 4G phone, the Huawei stage will be about 5G and the infrastructure, the stage where the US is screaming on Chinese intervention whilst Verizon is delivering all over the US equipment allegedly based on Chinese patent transgression would feel uncomfortable in anyone’s point of view.

There is however the other side, Verizon is still on the ‘There’s 5G. Then there’s Verizon 5G‘ horse. I get it, it is their marketing, so when we see ‘Not all 5G is the same‘ where their hype creation department (read: marketing) gives us “Verizon 5G Ultra Wideband has the power to deliver speeds more than 10 times faster than some other 5G networks” here we see a dangerous tune, that is when you disregard ‘Ultra Wideband‘, the stage becomes that they are about to go to court with a dozen patents linked to their name, patents owned by Huawei. And as we were treated last Thursday to ‘Verizon sticks behind ambiguous 2020 DSS rollout plan‘ (source: FierceWireless) we get the stage where their entire marketing needs to sit on their hands, the moment this gets to court and the Patent lawyers will go over every word and punctuation, when the Patent IT people will investigate the claims and this hits the news cycles 24:7, Verizon will need to steer in different directions and the US administration will push them, the last thing this administration needs is a global expose on Chinese patent infringement all whilst they are pushing non-Chinese hardware on a global scale, the entire Verizon issue, whether true or not will be tested in courts and that is a large bone to pick, even today the 9 years old case between Samsung and Apple is on the minds of too many people, this was a setback the US could have done without.

It does not matter at present who is in the right, this will drag on for years to come (as court cases on infringement do) and it will hinder 5G growth in the US and 5G deployment  in Europe, in all this Huawei has too much to gain and the lack of evidence on Chinese government interference claims will not help any, not until clear evidence is presented by the US administration, which is unlikely to happen.

This will be a new technology in waves of interpretation, it is so because the US never gave the rest of the world evidence on Chinese government dangers and that is about to backfire. When this hits the media, it is more likely than not that Verizon shares will plummet, it will plummet to below values they had on August 14th 2019 ($55.72), which would make it a 15% drop which in 5G terms translates to the first coffin nail that Verizon will have to swallow, I reckon that at that point corporate reorganisations will be the talk of the day at Verizon for weeks to come.

Can it be avoided?

That is hard to say, we need to see that interpretation goes both ways and the patent infringement accusations are a larger issue, until we see them investigated by qualified senior Patent lawyers (like the USPTO has) we are merely speculating and even after that, as the court starts it will impact and impact larger than expected. Avoiding that stage would have been the issue to a much larger degree and the talks that ended in no resolve might require a push from the US administration to get those resolved, still the accusation is in the air, that had to be avoided (as I personally see it), no matter what deal is struck, we see the accusations against Huawei whilst Verizon was optionally (and allegedly) using Chinese technology in their hardware. That part is now in the open, and questions will be asked internationally, if not by the governments, it will be a good stick for their opponents to use with any of their upcoming elections. 

Settling this beforehand was the larger economic need and it was not done (not judging whether the cases will have merit at present). That is what a lot will remember in the end, especially those who needed a big stick, Huawei just gave them a bat to end most matches.

 

Leave a comment

Filed under IT, Law, Media, Politics

Original Greek food

In the Washington Post, the morning newspaper of choice for America (at https://www.washingtonpost.com/news/food/wp/2017/08/11/as-greek-yogurt-keeps-proliferating-greece-is-getting-protective/), we see an article on yogurt, Maura Judkis shows us the new way to exploit Parmesan, this is by making yogurt and calling it Greek! With “The Ministry of Agriculture has assembled a group that plans to apply to register “Greek yogurt” in the European Union Register as a term with a protected geographical indication (PGI) or protected designation of origin (PDO)“. In this my initial question would be, ‘Why was this not done before?

Greece needs all the value it can get and Greek yogurt is apparently a big one. I love the stuff, but even I was a bit surprised to see the result with “Chobani saw its sales go from just over $3 million to more than $1.1 billion in its first five years“. So the fact that Chobani is not Greek is not in Greece and owned by a Kurd named Hamdi Ulukaya did not raise flags? I reckon this is one smart cookie; he bought the dispensed building from Kraft and turned it into a goldmine. So is Hamdi in a tough spot? I reckon he is. In his defence he is applying the Greek method of making Greek yogurt, so he has validity in his product, unlike the Czech version, which was taken to court and got scolded. Now, he is the part that is in debate. With “Using the term ‘Greek yogurt’ for products produced outside Greece would deceive consumers and would create unfair competition in the E.U. market” we see a valid case. Even as Parmesan is clearly an Italian product and such should be protected, Chobani finds itself in a similar predicament, or do they?

You see, the origin of Greek yogurt is still at times an issue. Even as we accept ‘Yogurt is known from ancient times , since there are reports from the historian Herodotus in 5th century B.C. and the famous doctor Galen, 2nd century A.D. There are also references to Indo culture that present yogurt with honey as the food of the gods

As I look at some of the historic facts, we need to ask questions, because Herodotus was born in Halicarnassus, which was in fact Persian. Some of the historical parts are a little sketchy, yet of that given and from the fact that he had travelled the ‘then’ known world. Where exactly did it come from and was he calling it Greek Yogurt, because he was Greek? In addition, was the art of straining yogurt limited to Greece?

So although Greece clearly has a case trying to protect Greek Yogurt, is this the trap for the product? So when we look at Article 22 of trips, (at https://www.wto.org/english/docs_e/legal_e/27-trips_04b_e.htm) we see:

Protection of Geographical Indications

  1. Geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.
  2. In respect of geographical indications, Members shall provide the legal means for interested parties to prevent:

(a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good;

(b) any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967).

So here we see the protection that Greek Yogurt has or should already have, and that is now the issue of Chobani. In addition, the Washington Post gives me something weird. With “But those rules won’t apply in the United States, where makers are free to label their yogurt as Greek (and where the distance from Greece makes consumer confusion less likely). There are dozens of “Greek” yogurts in grocery stores, from popular brands like Chobani, Yoplait, Dannon and Fage (a Greek company)“, which is an issue, because as a signatory of the WTO, the US should be at the top of enforcing parts of this. Yet with the opposing defence of ‘the distance from Greece makes consumer confusion less likely‘ we see another part of implied American exploitation. It is seen in a paper by Peter Drahos titled ‘Developing Countries and International Intellectual Property Standard-setting‘ (at http://www.anu.edu.au/fellows/pdrahos/reports/pdfs/UKCommIPRS.pdf)

On page 6 we see “For example, a number of corporations from the US, Europe and Japan claiming to represent the international business community released a document in 1989 that indicated strong support for a plurilateral agreement on intellectual property during the Uruguay Round (the mechanism of modeling). Australia supported the US position on TRIPS despite being a net intellectual property importer because it believed that by doing so it would achieve gains in the area of agriculture.

The US has been playing a powerful business game and they have seemingly won, yet as the sides that have been agreed on, the US is in a place where they would have to give in towards Europe, this is partially clear when we look at the information that the USPTO gives us. Yet in all this the Washington Post is equally giving a disturbing fact. From their view ‘But those rules won’t apply in the United States, where makers are free to label their yogurt as Greek‘, whilst at the same time the United States Patent and Trademark Office (at https://www.uspto.gov/sites/default/files/web/offices/dcom/olia/globalip/pdf/gi_system.pdf) gives us: ““Geographical indications” (“GIs”) are defined at Article 22(1) of the World Trade Organization’s (WTO) 1995 Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) as “indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographic origin.”” as well as “Geographical indications serve the same functions as trademarks, because like trademarks they are:

1) source-identifiers,

2) guarantees of quality, and

3) valuable business interests.

The United States has found that by protecting geographical indications through the trademark system – usually as certification and collective marks — the United States can provide TRIPS-plus levels of protection to GIs, of either domestic or foreign origin.

So from that part, not only is the WP incorrect (to some degree), if Greece pushes forward (and they should), there is every chance that Chobani will soon be relabeling their product. They should consider going with ‘Original Strained Yogurt‘ and the faster they move, the quicker they get to push the envelope in the US (and Global) on the niche they are creating. Oh, and Chobani is not the only one in this situation, there are heaps more and as such Greece should have pushed for the changes a lot sooner, if only to give push and rise to Greek exports.

Even as the Washington Post is trivialising it with: “No, actually, we’re all about French yogurt now. What is French yogurt? It’s a yogurt that comes in a cute glass pot, with a cute brand name — “Oui” — made by Yoplait“, which is merely the waves of consumers, they will get back to the Greek solution and as such for players like Chobani to get the ‘Original Strained Yogurt‘ message out will matter sooner rather than later, because the moment the consumer wave is bored with the glass cup, they will look around again and at that point whoever plays the game better gets those consumers and with the increase of 400 times the original revenue in 5 years makes it a serious task to set the right message and address the right people. I took one look at their website (www.chobani.com) and noticing how ‘Greek Yogurt‘ is their forte, which is not bad, yet if Greece gets their way in this and the information as even the United States Patent and Trademark Office (USPTO) gives it, the Greek enforcement would not be totally impossible, adhering to change and educating the consuming readers now will make a truckload of difference down the track. In my view it is not whether the ‘Greek Yogurt‘ mention is valid or not, it is for the most the strongest message the website throws into our eyes and as such they need to consider their steps. The only other thing I noticed is that they had not taken the trouble to make a mobile app to keep people informed, with a $1 billion plus, that seems like a failure to me. If the product is all, than being seen everywhere matters, especially in this mobile environment. Even when we take the Denver Post (March 9th) at their word, where Chobani chief marketing officer Peter McGuinness said he’s not worried about imitation. “It hasn’t hurt our business because our food is better”, this might be true in his case, yet the rivals need to get creative, so Peter McGuinness needs to get (read: stay) ahead of them before they get a chance to catch up, the game is not just to get ahead of all, it is equally a case to make sure that they cannot catch up. It is the one lesson that Sony learned too late with Betamax, VHS was never anywhere near the quality that Sony offered, yes in 1983, 8 years after Betamax was released it was clear that VHS had won and it was downhill for Betamax from there. It seems to me that if Chobani is not assertively busy keeping the message on track others can start to catch up and as such Chobani should not give up ‘Greek yogurt‘, but informing the consumer what ‘Original Strained Yogurt‘ is could make the difference between a clear first position, or a shared top group. The need for that part is equally in the Denver Post as we see “Then there’s the food companies’ relentless drive to improve profit margins. Amid the industry’s sales decline, General Mills, Mondelez International Inc., Kellogg and Campbell have aggressively cut costs“, the question becomes how are they cutting costs? Are they resorting to additives or alternatives to straining as short cuts in manufacturing? Either way, at this point Chobani could have the edge on two terms (for now) and a clear ‘original’ message if Greece continues and secures protection on Geographical Indication. The Washington Post was not incorrect in their statement, even as it differed from the USPTO, yet the other side is that even as the TPP is dead, whatever follows will still have the parts in it and Europe is more and more protective of certain items. We saw in 2014 “As part of trade talks, the EU wants to ban the use of European names like Parmesan and Gruyere on cheeses made in the US“, with consumer value being more and more important, whatever trade agreement comes through at some point, the Europeans will push for this part and the US with much larger Pharmaceutical avenues will most likely give in on that point if they want to have any hope of stopping generic medication to get a freehold in the EU and UK. As such those who alter the course of their products now are in a much better position when they get overrun with some ‘sudden’ news on the matter. In this, I will not and cannot proclaim I am correct. Yet I can state that my view is indeed more likely than not the correct assessment. We will see soon enough if my view holds water. The fact that Pappas Post reported 22 hours ago “Greece’s Ministry of Agriculture has (finally) assembled a group of experts that are planning the application process to register “Greek yogurt” in the European Union Register as a term with a protected geographical indication (PGI) or protected designation of origin (PDO)” implies that the forming of the application is now underway, and whichever trade talks happens during the current US administration could give rise to changes that Chobani and others need to comply with soon thereafter.

 

 

Leave a comment

Filed under Law, Media, Politics