Flying Away on a Wing and a Prayer

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If you’re roughly my age, you’ll remember this guy:

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If not, meet Ralph Hinkley, The Greatest American Hero. Ralph (played by William Katt) is the protagonist of a schlocky 1980s sitcom with the greatest television theme song ever written. The premise of the show is that Ralph was driving through the desert one evening when some aliens decided to give him a supersuit that gives him superpowers. Unfortunately, Ralph lost the instruction manual for the suit, so he can never get it to work quite right. He nevertheless attempts to use the suit’s powers for good, and hilarity–or what passed for it on early-80s network television–ensues. In one episode, a replacement copy of the suit’s instruction manual is found, but it’s written in an indecipherable alien language. What could have been a tremendous force for good becomes a frustrating reminder of one’s own shortcomings.

As you know if you’ve been following my recent posts, I’m currently working with a treasure trove of Japanese government data. I’ve been given a helpful translation of the introductory chapters of the data specification. I’ve been given an incredibly helpful set of computer scripts to parse the data and I’ve gotten them to (mostly) work. And now that I’m at the point where I’m about ready to start revising the computer scripts to extract more and different data, I’ve got to start deciphering the various alphanumeric codes that stand in as symbols for more complex data. I’m nearly two weeks in to a seven-week research residency, and I feel like I’m finally approaching the point where I can actually start doing something instead of just getting my bearings. It’s exciting. But then, well…

Up to this point, I’ve been working with a map of the data structure that is organized (like the data itself) with english-language SGML tags (if you know anything about XML, this will look familiar):

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See that column that says “Index”? The five-character sequences in that column map to a list of codes that correspond to definitions for the types of data in this archive. These definitions–set forth in a series of tables–allow the data to be stored using compact sequences that can then be expanded and explained by reference to the code definition tables.When you’re dealing with millions of data records, compactness is pretty important.

So, “B0010” tells you that the data inside this tag (the “application-number” tag) is encoded according to definition table B0010. So I’ll just flip through the code list and…

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Uh… Hmm.

Well, that’s not so bad; I can just search this document for “B0010” (it would be a sight easier if the codes were in order!) and then just copy and paste the corresponding cell from the first column into Google Translate (it’s not a terrifically accurate translator, but it’ll do in a pinch.) The description corresponding to B0010 is “出願番号,” which Google translates to “Application Number.” That makes sense; after all the code is used for data appearing inside the <application-number> SGML tag. So now I just need to look up the code table for 出願番号/B0010 to learn how to decipher the data inside the <application-number> tag, and…

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Hmm.

This one actually makes some sense to me. It looks like data in code B0010 consists of a 10-character sequence, in which the first four characters correspond to an application year and the last six characters correspond to an application serial number. Simple, really.

Of course, there are dozens of these codes in the data. And not all of them are so obvious. Some of them even map to other codes that are even more obscure. For example, code A0050–which appears all over this data–is described as “中間記録”. Google translates this as “Intermediate Record”. Code table A0050, in turn, maps to three other code tables–C0840, C0850, and C0870. The code table for C0840 is basically eleven pages of this:

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(Sigh.)

In every episode of The Greatest American Hero, there’s a point where Ralph’s malfunctioning suit starts getting in the way–hurting more than helping. Like, he tries to fly in to rescue someone from evil kidnappers and ends up crash-landing, knocking himself out, and making himself a hostage. Nevertheless, with good intentions, persistence, ingenuity, and the help of his friends, he always managed to dig himself out of whatever mess he’d gotten himself into and save the day.

So… yeah. I’m going to figure this one out.

 

Forget My Name

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I am incredibly fortunate that a group of Japanese researchers has already done much of the hard work of figuring out how to turn the hundreds of gigabytes of SGML documents I’m working with into a nice handy database, and moreover has given me the code they used to do it. Instead of figuring out how to do what they did on my own, I simply have to figure out what they did, and then decide what I’d like to do differently. As with everything else this summer, this task highlights important cultural differences.

Today I’ve been going through the specification for the raw government data I’ve been given and comparing it to the code given to me by the Japanese researchers whose work I’m building on, to see what they included in their dataset and what they left out. The raw government data includes a significant amount of low-sensitivity personally identifiable information. This is mainly name (and sometimes address) information about individuals and firms who have applied for trademark registrations, about the attorneys who represent them, and about the examiners–government employees all–who consider their applications.

Similar information appears in the US government’s data on trademark applications. The US government released all this data to the public several years ago, and continues to update it on a regular basis, which means that the names and addresses of applicants and their attorneys, and the names of examining attorneys and their supervisors, are all part of the public record–freely available to anyone with the interest and wherewithal to find them.

I know a few people who were pretty shocked to learn that you could search the USPTO’s free, public trademarks dataset by examiner name, and find any examiner’s entire work history–how much of a pushover they are; how quickly they work, how long they’ve been on the job, how often they’ve been overruled, etc. I’m sure there are lots of USPTO examining attorneys who would be shocked to learn that fact. But my sense is that in the US that kind of openness about government employees, and low-sensitivity personally identifiable information about individuals who access government functions, is pretty standard. And in most of the rest of the world, it’s just not.

The Japanese researchers whose work I am building on did not include information about the examiners who reviewed applications in their dataset at all–they never even retrieved it during processing. I happen to think that correlating application outcomes by examiner is interesting and potentially useful, and I’m going to modify the code I’ve been given to extract that information from the raw data. But in deference to what I take to be cultural norms regarding the privacy of personally identifiable information–norms that I know many of my compatriots would like to import into the US–I think I will probably anonymize the examiner data before reporting my results.

Lost in Translation

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Yes, the title of this post is a cliché. It was bound to happen at some point on this trip. But I promise it’s really appopriate to today’s post.

I’m finishing out my first week in Japan, and I have been overwhelmed by the generosity and support of everyone I’ve met. Everyone I’ve interacted with in a professional capacity has underpromised and overdelivered. For example: Continue reading

Summer in Japan: Early Observations on Data and Culture

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I arrived in Tokyo two days ago, and have already begun work at the Institute of Intellectual Property, digging in to the Japan Patent Office’s (JPO’s) trademark registration data. I’ve worked with several countries’ intellectual property data systems by now, and I’m starting to think they may provide a window into the societies that produced them–though I’m still too jet-lagged to thoughtfully analyze the connection. Besides which, any analysis purporting to draw such a connection would inevitably be reductive and probably chauvinistic. So, purely by way of observation:

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Going to Tokyo: I’ve Been Appointed an “Invited Researcher” by Japan’s Institute of Intellectual Property

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I’m very excited to announce that the Institute of Intellectual Property in Tokyo has invited me to participate in its Invited Overseas Researcher Program this coming summer. Under an agreement with the Japan Patent Office, each year IIP invites a small number of foreign researchers to come to Tokyo to study Japan’s industrial property system. (Past researchers can be found here.) I’ll be spending several weeks in Tokyo this summer doing empirical research into Japan’s trademark registration system (as a foundation for the kind of work discussed in this post). Many thanks to Kevin Collins (who did this program last year) for flagging this opportunity, and to Barton Beebe, Graeme Dinwoodie, and Jay Kesan (also a previous participant in the IIP program) for their support.

Trademarks and Economic Activity

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There’s an increasing amount of empirical data available on trademark registration systems. The USPTO released a comprehensive dataset three years ago, and there are less complete and less user-friendly data sources available from other national and regional offices–though some offices make it a bit tricky to get their data, and others restrict access or charge for their data products. As with most trends in legal scholarship, the empirical turn has come late to the study of trademarks. Part of this is because the scholarly community is small, and not as quantitatively-minded as other disciplines. Part of it is because it’s not clear what questions regarding trademarks we might look to empirical evidence to answer. I’ve published a study of the impact of the federal antidilution statute on federal registration (spoiler alert: it adds to the cost of registration but doesn’t seem to affect outcomes), but that’s a pretty narrow issue. What else could we learn from this kind of data?

One possibility is to examine the link between trademarks and economic activity. People who make a living from commerce involving intellectual property like to emphasize how important IP protection is to the economy, though the numbers they throw around are a bit dubious. But if we were serious about it, could we rigorously draw some link between trademarks–which are the most common and ubiquitous form of intellectual property in the economy–and economic performance?

I’ve been thinking about how we might do so, so I brought my modest quantitative analytical skills to bear on the best data currently available: the USPTO’s dataset. I thought I’d just look to see whether there is any relationship between trademark activity (in this case, applications for federal trademark registrations) and economic activity (in this case, real GDP). And it seems that there is one…kind of.

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The GDP data from the St. Louis Fed is reported quarterly and seasonally adjusted; I compiled the trademark application data on a quarterly basis and calculated a 4-quarter moving average as a seasonal smoothing kludge. We see that trademark application activity is strongly seasonal, and that it tends to roughly track GDP trends–perhaps with a bit of a lag. The lag is interesting if more rigorous analysis bears it out: it seems to suggest that trademarks, rather than driving economic activity, are merely a lagging indicator of that activity.

The big exception is the late 1990s to the early 2000s. As Barton Beebe documented in his first look at USPTO data, this spike in trademark activity seems to correspond with the dot-com boom and bust. (Registration rates also dropped during this period–lots of these applications were low-quality or quickly abandoned.) It’s interesting to see that this huge discontinuity in trademark application activity doesn’t correlate with anywhere near as big an impact in the overall economy. We could speculate about why that might be–it probably has something to do with the “gold-rush” scramble to occupy a new, untapped field of commerce, and I suspect it also reflects (poorly) on the value of the early web to the overall economy.

This is an example of the kind of analysis these new data sources might be useful for–and it’s not that tricky to carry out. Building this chart was a couple hours’ work, and I’m no expert. A more rigorous econometric model is beyond my expertise, but I’m sure it could be done (I’m less sure what we could learn from it). What other kinds of questions might we look to trademark data to answer?

The Nice Classification and Law’s Expressive Function

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Happy New Year! For trademark lawyers, today marks the entry into force of the 2015 Version of the 10th Edition of the Nice Classification. This is the classification system that trademark owners refer to in identifying what types of goods or services they are claiming a right to use their marks with. (Trademark law allows for concurrent use by different users in sufficiently distinct product or service categories–think Delta Faucets and Delta Airlines). Just scanning the USPTO’s helpful list of “noteworthy changes” in the 2015 version, I’m reminded how much trademark law is a window into society, and how it can be example of what Cass Sunstein called the “expressive function” of the law.

Glancing through the list, we see that e-cigarette fluids are now firmly associated with smoking and tobacco instead of chemistry; that 3D-printers are considered less a scientific curiosity and more a useful tool; that the government is no longer quite so particular about categorizing sex toys according to precisely how they get you off.

Of course, against this apparently progressive list of changes are some more troubling indicia of an increasingly stratified and commodified consumer culture. We must now be careful to distinguish custom tailoring from mere clothing repair. We apparently need separate categories for all the various specialty mitts one might use for different household tasks–whereas once a washcloth could be used in the shower or on your car, now you need two different specially-designed gloves to achieve both tasks–and be sure you don’t confuse either with the different specialty mitt you use in the kitchen. And because even in our social interactions we’d rather spend money than time and effort, there is now legal recognition for branded gift wrapping services.

So that’s where we’re headed in 2015. Whether law is leading or following, I’ll leave you to decide.

Bleg: Seeking Research on “Disparaging” Trademarks Under Lanham Act 2(a)

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Because I don’t have enough to do, I have taken on a time-sensitive research project for an ABA task force examining the provisions of the Lanham Act barring registrations of “scandalous” and “disparaging” marks (my task focuses on disparagement). I’m sure many of my law professor and lawyer friends have thought and written about these provisions more thoroughly than I have. If you’re one of them, I’d be grateful for you pointing me in the direction of the best sources to consult. Shameless self-promotion is heartily encouraged.

“Dilution at the PTO”–Slides from Presentation to the ABA-IP Section Spring Meeting

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Last week I presented the latest findings from my work-in-progress, “Dilution at the Patent and Trademark Office”, at the inaugural Scholarship Symposium at the ABA-IP Section’s Spring Meeting.  This includes the first presentation of my findings on famous marks.  Slides from the presentation can be found here.

“Dilution at the Patent and Trademark Office” Selected for ABA IP Section Annual Conference Symposium

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My current work-in-progress, “Dilution at the Patent and Trademark Office”, has been selected for inclusion in the inaugural Intellectual Property Scholarship Symposium, to be held on the first Day of the ABA IP Section’s 29th Annual Intellectual Property Law Conference.  Details about the Conference may be found here.