Tuesday, December 28, 2010

"Possibly the Most Comprehensive Array of Legal Humor Ever Assembled"

Postings like THIS could put at least half of my blog out of business.  Unless I simply re-post them, of course.

Venn Diagram of the Day

Click HERE to see who gets paid to touch your junk.

UPDATE:  It turns out that the original Venn diagram is all messed up.  As explained HERE.

Thursday, December 23, 2010

Tuesday, December 21, 2010

Unclear Sign of the Day

If you understand THIS sign -- that's what comments are for.

And Now A Word From Our Sponsor

Duck Poster of the day.

Federal Circuit Holds that eBay Doesn't Apply to ITC Injunctions

Today the Federal Circuit decided Spansion v. U.S.I.T.C.

You have to read to the very end of this long opinion, but in the case, the Federal Circuit ruled that eBay doesn't apply to ITC injunctions.  Specifically, while there is still a "public welfare" component to an ITC injunction, the "irreparable harm" element seems to be absent.

UPDATE: (a brief explanation of what this means for people who don't know just by reading it):
A patent owner who wants to enforce its patent can file a lawsuit in Federal District Court.  If the patent owner wins the case, it might or might not get an injunction forcing the losing infringer to stop its infringing activities, based on the case of eBay v. MercExchange. Under that case, to get an injunction the patent owner must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.  What this means in practice is that if the patent owner has a competing product -- it is in the market -- it usually can get an injunction.  If the patent owner does not practice its patent, it usually can't get an injunction, and only gets money damages (royalties).

Alternatively, some patent owners can file a proceeding in the U.S. International Trade Commission (ITC).  There are a number of differences between an ITC proceeding and a district court proceeding; some of them are discussed here and here.  For the purposes of today's case, the Federal Circuit ruled that eBay's four part test, above, doesn't apply to ITC injunctions -- specifically, the patent owner doesn't have to prove irreparable harm to get an ITC injunction.  This has been an open question after the eBay decision.

Friday, December 17, 2010

Post-Bilski Case From the Federal Circuit: Claims Still Patentable

Today the Federal Circuit released an opinion in Prometheus v. Mayo.  This case was on remand from the Supreme Court after the Bilski decision in June 2010.  The claims in question are directed to certain medical diagnostic treatments.  The Federal Circuit had originally found the claims patentable under 35 U.S.C. §101 in view of its strict "machine or transformation" test in its Bilski decision.  After the Supreme Court's Bilski case had modified the Federal Circuit's test to something less strict (the Supreme Court test is less than a model of clarity, but it's less strict than the Federal Circuit's test), the Supreme Court granted cert in Prometheus, vacated the Federal Circuit opinion, and remanded the case so the Federal Circuit could reconsider the issue.

I thought it odd that after its Bilski decision, the Supreme Court granted cert and remanded the case to the Federal Circuit.  If the Federal Circuit found the claims patentable under its stricter Bilski test, surely it would do the same under the Supreme Court's less strict test?  Today's answer to that question is "yes."

Sunday, December 12, 2010

Opening Briefs in Viacom v. YouTube and Premier League v. YouTube

Viacom v. YouTube is an important copyright case on appeal to the Second Circuit Court of Appeals (Appeal No. 10-3270).  A related case is a class action brought by The Football Association Premier League and others against YouTube, which is also on appeal (Appeal No. 10-3342).  For the purposes of this post, I'll just discuss the Viacom case; the claims in the Premier League case are similar, although there are some differences.

As summarized on EFF's case page, in 2007 Viacom sued YouTube, claiming that YouTube should be liable for its users' posting of Viacom's copyrighted videos on YouTube.  Although YouTube acts promptly to take down infringing videos once a copyright owner gives YouTube notice of infringements -- you doubtless have tried to look at a video on YouTube and have seen a message that the video was removed due to a copyright claim -- Viacom asserts that YouTube is liable for postings of infringing works anyway.  The potential damages are a billion dollars or more.

At issue is Section 512 of the Copyright Act, which is part of the Digital Millennium Copyright Act.  Subsection (c) of that statute gives an Internet service provider such as YouTube a defense to copyright claims, provided that it satisfies certain conditions.  One condition is that the ISP registers an agent for service of notifications of claimed infringements, and then acts promptly to remove infringements upon receipt of such notices.  There's no dispute that YouTube did that in the Viacom case; Viacom sent YouTube more than 100,000 takedown notices, which YouTube promptly complied with.  Section 512(c) is sometimes called the "DMCA safe harbor."

Viacom claims that YouTube isn't entitled to the "safe harbor" for three reasons that can be briefly summarized as follows: (1) YouTube's general knowledge that infringements occur on its website defeats the safe harbor under § 512(c)(1)(A); (2) YouTube receives "a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity," disqualifying YouTube's safe harbor under § 512(c)(1)(B); and (3) that "storage" in § 512 is limited to uploading of stored files only, not downloading of them by another user.  While all issues are being contested in the case, the most important issue is probably the first one.  Does an ISP lose its immunity under § 512 because it has "general" knowledge of infringements on its website (as Viacom and the Premier League argue), or is the safe harbor lost only if the ISP has specific knowledge of infringements that the website doesn't then remove (as YouTube argues)?  This is a very important distinction that affects all user-generated content on the Internet in general.  Most UGC sites are "generally" aware that some users post infringing material, so if "general" awareness subjected UGC sites to suit, they would probably have to stop operating.

On June 23, 2010, the district judge agreed with YouTube and granted YouTube summary judgment against Viacom and the Premier League.  The district court agreed that generalized knowledge isn't enough to defeat the safe harbor.  Discussions of that decision are here, here, here, here, and here.

Viacom and the Premier League have now filed their opening briefs in the Second Circuit.  Fifteen amicus briefs have also been filed (at least ones that I have found).  Techdirt has this discussion of the Viacom opening brief.  While under normal court procedure only the amicus briefs favoring Viacom and the Premier League were filed at this time, at least one of the amicus briefs filed so far favors affirmance of the summary judgment rulings, by the American Intellectual Property Law Association.  Techdirt discusses that brief here.

YouTube's opposition brief will likely be due on March 31, 2011, with amicus briefs supporting YouTube due a week later.  I was one of the co-authors of an EFF amicus brief supporting YouTube at the district court level, and expect that the EFF will file an amicus brief supporting YouTube on appeal.

UPDATE:  Here is Eric Goldman's analysis of the briefs. EFF's discussion is here.

Here are links to the briefs filed so far:

Plaintiffs' Opening Briefs:
Viacom's opening brief
Premier League's opening brief 

Amicus Briefs:
Brief of America Intellectual Property Law Association
Brief of Advance Publications et al
Brief of American Federation of Musicians et al
Brief of Audible Magic
Brief of BMI-ASCAP et al
Brief of BSA
Brief of CBS
Brief of Intellectual Property Law Professors
Brief of International Intellectual Property Institute
Brief of Matthew Spitzer et al
Brief of Microsoft-EA
Brief of MPAA
Brief of Stuart Brotman et al
Brief of Vobile
Brief of Washington Legal Foundation

Saturday, December 11, 2010

Wednesday, December 8, 2010

Intellectual Ventures Files Its First-Ever Patent Lawsuits

Intellectual Ventures is an invention development and patent holding company.  It was originally founded in 2000 by Nathan Myhrvold and Edward Jung of Microsoft.  The Wikipedia article about the company is here.  The company's website is here.

Despite its impressive patent portfolio, up until today Intellectual Ventures never filed a lawsuit on its patents, preferring to license its patents.  In some cases, it sold patents to other companies (some of whom filed lawsuits).  However, today Intellectual Ventures filed three patent lawsuits, for the first time.  An article about the lawsuits is here.

The lawsuits are Case Nos. 1:10cv1065, 1:10cv1066, and 1:10cv1067 in the U.S. District Court for the District of Delaware.

Quiz: What Starts With F and Ends with K?

Totally suitable for work.  At least the answers.

Monday, December 6, 2010

Recipe of the Day!

During the holiday season, everyone needs THIS recipe.

Saturday, December 4, 2010

Happy Hanukkah!

But you might not want to eat one of THESE.

Tuesday, November 30, 2010

"Batman and Patents"

Another article where I can't decide if it's funny or serious -- an analysis of whether Batman is forfeiting patent protection on all those gadgets.  So I'll label this under BOTH "Patents" and "Humor."

Monday, November 29, 2010

R.I.P. Leslie Neilsen

Comic star Leslie Nielsen has passed away.  He died of complications from pneumonia.

Supreme Court Agrees to Decide Whether to Make it Easier to Invalidate Patents

A previous post discussed how Microsoft was asking the U.S. Supreme Court to make it easier to invalidate patents.  Today the Supreme Court granted certiorari in the case, Microsoft v. i4i (see page 4 of the order list).

Microsoft had asked the Court to review the Federal Circuit's standard of proof that a defendant trying to prove a patent invalid must do so by “clear and convincing” evidence.  Microsoft is arguing that a defendant need only prove invalidity by a preponderance of the evidence.  I was one of the authors of an amicus brief supporting Microsoft's cert petition, filed on behalf of the Electronic Frontier Foundation, Public Knowledge, the Computer & Communications Industry Association and the Apache Software Foundation.

If Microsoft is successful on the merits, this will make it easier to invalidate a patent than it is under existing law.  Details are in the previous post.  If the Supreme Court rules in Microsoft's favor, that will greatly change the landscape of patent enforcement and litigation, especially compared with the situation five years ago.  In a 2006 case, eBay v. MercExchange, the Supreme Court reversed the Federal Circuit's rule that if a patent owner wins at trial, an injunction would almost always be granted.  The Federal Circuit's "automatic injunction" rule permitted non-practicing entities to obtain injunctions against companies that actually made a product.  A notable example was the "Blackberry" patent case, NTP v. Research in Motion, where a trial judge enjoined RIM's Blackberry wireless device.  (eBay was decided two months after the settlement of NTP v. RIM, too late to help RIM.)  In practice, a non-practicing entity would use the "automatic" injunction just to leverage a larger settlement after the trial -- or the NPE would simply use the threat of such an injunction to obtain better settlement terms before trial.

In a 2007 case, KSR v. Teleflex, the Court made it easier to invalidate a patent because the claimed invention was obvious.  The Federal Circuit had a rule that usually required a "teaching, suggestion, or motivation" in the prior art to find a patent obvious.  This rule also greatly favored patent owners, since it was often difficult for an accused infringer to find such a "teaching, suggestion, or motivation" to prove obviousness.  The Supreme Court reversed the Federal Circuit in that case, and adopted a flexible rule making it easier to prove obviousness.  (My analysis of KSR, posted on SCOTUSblog, is here.)

While KSR made it easier to prove a patent was obvious, the accused infringer still had to do so by clear and convincing evidence.  If Microsoft v. i4i allows proof of invalidity by just a preponderance of the evidence, it will be even easier to prove that a patent is obvious (and invalid on other grounds as well).  And with "automatic" injunctions eliminated by eBay, patent owners will have nowhere near the leverage in negotiations and in litigation that they had five years ago.

UPDATE: Patently-O's analysis is here.  EFF's web post is here.  (Techdirt quotes the EFF post.)  A posting at SCOTUSblog on today's cert grants is here.  Joe Mullin's post is here.

Wednesday, November 17, 2010

One-Question IQ Test

If you get this wrong, please follow the instructions at the bottom of the post.

Monday, November 15, 2010

Worthwhile Video About the "Combating Online Infringements and Counterfeits Act "

The lame duck Congress might try to pass something called the "Combating Online Infringements and Counterfeits Act."  I have not written about this act before, but it is a really bad idea. This video explains why.

Wednesday, November 10, 2010

SatireWire Is Back!

SatireWire was one of my favorite humor websites until it stopped running in 2002.  Good news, SatireWire is back!

Monday, November 8, 2010

Federal Circuit Makes It Easier to Challenge Patent Office Decisions

If a patent applicant's claims are rejected by the Examiner and that rejection is upheld by the Patent Office's Board of Patent Appeals and Interferences, the patent act gives the applicant two ways to seek judicial review.  One way is a direct appeal from the Board to the U.S. Court of Appeals for the Federal Circuit.  Most applicants choose this route since it's cheaper and a lot faster than the second way:  filing a civil action in the District of Columbia.  The outcome of that civil action can then be appealed to the Federal Circuit.

Gilbert Hyatt was unsatisfied with a Board decision rejecting some of his claims, and he chose to file a civil action.  The district court refused to let him present new evidence (despite being a trial court) because Hyatt could have presented his evidence to the PTO.  Hyatt appealed to the Federal Circuit.  A three-judge panel affirmed the district court by a 2-1 vote, but the entire CAFC decided to rehear the case en banc.

Today the en banc Federal Circuit reversed the district court.  The majority opinion, by Judge Moore, held that new evidence could be presented to the district court in a civil action, even if the evidence was previously available.  Judge Moore also held that the PTO's decision would be given deference as to evidence the PTO had in fact considered.

Judge Newman dissented in part.  She agreed that new evidence could be considered, but would have let the district court consider all the evidence anew, with no deference to the PTO.

Judge Dyk, joined by Judge Gajarsa, dissented.  In a lengthy dissent, these judges would have affirmed the district court and not permitted the new evidence.  (Judge Dyk was a member of the three-judge panel that initially affirmed the district court; Judge Moore was also a member of that panel but filed a dissenting opinion.)

UPDATE:  I had always assumed that new evidence could be asserted in a district court civil action.  If an applicant doesn't want to add new evidence, the logical way to appeal is a direct appeal to the Federal Circuit.  If new evidence were not allowed in district court actions, then there's little point to having those two different types of appeals in the patent act -- why bother with a district court action if the record is the same as it would be on a direct appeal to the Federal Circuit?  The 3-judge panel decision troubled me when it was decided, so today's decision makes sense to me.

Patently-O's analysis of the case is here

Monday, November 1, 2010

U.S. Justice Dept. Disagrees with U.S. Patent Office on Patentability of Isolated Genes

The U.S. Justice Department has filed an amicus brief in a Federal Circuit appeal involving the patentablity of isolated genes, arguing that the U.S. Patent Office's policy permitting patents on such genes is incorrect.  The case involved a number of patents asserted by Myriad Genetics, Inc. covering gene sequences related to breast cancer detection and associated testing methods.  The ACLU led a group of plaintiffs that sued to invalidate Myriad's patents as unpatentable subject matter under 35 U.S.C. §101.  The district court agreed that the patents were invalid, and Myriad appealed to the Federal Circuit.  

Although the PTO was a named defendant in the case, the Justice Dept. filed an amicus brief asserting that the district court was correct, at least as to isolated genes that occur naturally in nature.  Techdirt's analysis of the case states that there "must have been a hell of a political fight within the administration to get this through."  The Patently-O blog and SCOTUSblog also analyze the brief and contain links to it.  

Tuesday, October 12, 2010

Don't Show THIS to Your Dentist

Do you ignore your dentist's advice to floss regularly?  Buy one of THESE (especially the one on the right) and you'll floss every day.

Supreme Court Grants Cert. in Inducing Infringment Case

Today the Supreme Court granted a petition for certiorari to review a Federal Circuit decision about the level of intent needed to prove actively inducing infringement under 35 U.S.C. Section 271(b).  A detailed analysis by Patently-O is here.

Friday, October 8, 2010

Thursday, October 7, 2010

Mobile Phone Patent Lawsuits Explained. Or Not!

When a new patent suit is filed in the mobile phone market -- and there have been lots of them -- people sometimes ask me what I think of the new suit.  Quite frankly, it's too hard to keep track of them all to comment intelligently.

So the "Information is Beautiful" website kindly assembled this chart explaining all the mobile phone lawsuits.  Or not!

UPDATE:  Techdirt explains that the "Information is Beautiful" chart might not be correct.  Although it's not clear what IS correct.

Wednesday, October 6, 2010

Do You Fondly Remember That Little Red Wagon You Had as a Child?

Then you will want to watch THIS.

More Fallout from the Ninth Circuit Limiting the First Sale Doctrine

I previously reported on the Ninth Circuit's decision in Vernor v. Autodesk limiting the first sale doctrine.  Now the humor blogs are finding ways this impacts everybody:  Failblog shows an example where "the RIAA will sue you for this too."

Commerce Department's Internet Policy Task Force Seeks Comments on Online Copyright Issues

The Department of Commerce's Internet Policy Task Force is seeking public comments on the relationship between the availability and protection of online copyrighted works and innovation in the Internet economy. The announcement was published in the Federal Register on October 5, 2010.

The Patent and Trademark Office and the National Telecommunications and Information Administration—the two agencies in the department charged with the copyright-related issues for the Task Force—addressed the “notice of inquiry” to all interested stakeholders, including rights holders, Internet service providers, and consumers.

The notice identified three broad categories for stakeholder comment, one for each stakeholder type:

• Eleven questions are directed to the topic of “rights holders: protection and detection strategies for online infringement.”

• Under “internet intermediaries: safe harbors and responsibilities,” the notice posed 15 questions, including ones directed to takedown notices issued for allegedly infringing content.

• The third set of questions were directed to “internet users: consumers of online works and user-generated content.”

The home page for the Internet Policy Task Force is here.  The Federal Register link to the "Inquiry on Copyright Policy, Creativity, and Innovation in the Internet Economy," which contains the specific questions, is here.

Monday, October 4, 2010

"If You Need These Instructions, Please Step Away From This Cooking Device"

If you ever see THIS sign, evacuate the building immediately.  Before the inevitable explosion.

Election Update

Don't worry Brazil, the USA will catch up to you on November 2.

Is There a God?

Mr. Spock answers that age-old question.

"Ig Nobel prizes awarded for bat fellatio, whale snot sampling, more"

As reported by Ars Technica, the 2010 Ig Nobel prizes are here!  The official link is here.

Winners include:
  • Engineering, for remote sampling of whale snot
  • Medicine, for reducing asthma symptoms with a roller coaster
  • Transportation planning, for laying out rail systems using a slime mold
  • Physics, for the finding that wearing socks on top of boots improves traction on icy surfaces
  • Peace, for the finding that swearing does reduce pain
  • Public health, for the finding that beards let some microbiologists take dangerous work home with them
  • Economics, to half of Wall Street, as thanks for our current economy
  • Chemistry, for showing that oil and water do mix
  • Management, for showing that promoting people at random is the most efficient method
  • Biology, for the demonstration that fellatio is a normal part of fruit bat mating

Some People Understand Humor

And some other people think "The Onion" is a REAL newspaper.

No Surprise: Quilted Toilet Paper is Functional

The Northern District of Illinois has ruled that the "Quilted Diamond Design" on Georgia-Pacific's "Quilted Northern" toilet paper is functional, and can't be the subject of trademark protection.  Georgia Pacific Consumer Products v. Kimberly-Clark Corp., No. 09-C-2263 (N.D. Ill. Sept. 30, 2010).  GP asserted four registered trademarks in its "Quilted Diamond Design" against Kimberly-Clark's toilet paper with the same design.

The court applied the following test for functionality:

The issue of whether an item is functional can be broken down to five factors.  See, e.g., Specialized Seating, Inc. v. Greenwich Indus., L.P., 472 F. Supp. 2d 999, 1011 (N.D. Ill. 2007) (Holderman, C.J.).  Functionality turns on: “(1) the existence of a utility patent, expired or unexpired, that involves or describes the functionality of an item’s design element; (2) the utilitarian properties of the item’s unpatented design elements; (3) advertising of the item that touts the utilitarian advantages of the item’s design elements; (4) the dearth of, or difficulty in creating, alternative designs for the item’s purpose; (5) the effect of the design feature on an item’s quality or cost.”  Id.
Unfortunately for GP, it also held utility patents on the same diamond design. The court thus stated:

The existence of a utility patent that covers the asserted designs can be a “cheat sheet” for deciding whether a design is useful, and therefore functional.  Jay Franco, 2010 WL 3156539, at *2.  If the “central advance” claimed in the utility patent matches the “essential feature” of the trade dress or trademark, that constitutes strong evidence that the design is functional.  TrafFix, 532 U.S. at 30.  Satisfying this requirement places a “heavy burden” on the trademark owner to show nonfunctionality.  Specifically, the owner of the trademark can overcome the burden by showing that the design at issue is an “ornamental, incidental, or arbitrary aspect of the device.”  TrafFix, 532 U.S. at 30; see, e.g., Berlin Packaging, LLC, v. Stull Tech., Inc., 381 F. Supp. 2d 792, 799 (N.D. Ill. 2005) (Denlow, M.J.).

The Court also rejected the assertion that there were alternative designs that achieve the same functionality:  "A design that serves a functional purpose does not become nonfunctional solely because of the possibility of numerous alternative designs."  Accordingly, the Court held the diamond design functional and not subject to trademark protection.  It's unclear whether GP has any patent claims against Kimberly-Clark.

Friday, October 1, 2010

There Are Times When You Should Really Reprint Your Poster

And THIS is one of them.

"The Copyright Principles Project: Directions for Reform"

A group called the "Copyright Principles Project" has issued a report called "The Copyright Principles Project: Directions for Reform."  The group is headed by Professor Pam Samuelson of U.C. Berkeley. 

According to the High Tech Law Institute of Santa Clara Law School (whose Tyler Ochoa was a member of the group), the report "explores ideas for meaningful reforms to the U.S. copyright system" and "examines several ways to improve and update the law in an era of rapid technological change."

The 68-page report contains 25 recommendations.  If I get a chance, I'll update this post with a summary.

Halloween is Coming.

And you need THESE ice cube trays for your party.

Nice Primer on Trademark Law (and the Playboy Bunny Too!)

Section I of today's Federal Circuit opinion in In re Chippendales USA, Inc. has a concise overview of trademark and trade dress law.  As an added bonus, the opinion later discusses trademark protection for the Playboy bunny.

UPDATE:  Dennis Crouch has a detailed discussion of this case.

Thursday, September 30, 2010

iPhone App of the Day

Actually, maybe this is the iPhone app of the YEAR.

Having Firefox Problems?

You're not alone.

For Those of You Reading This Blog at Breakfast

Don't eat THIS.

Microsoft Asks the U.S. Supreme Court to Make it Easier to Invalidate Patents

In August Microsoft filed a petition for certiorari in the U.S. Supreme Court that asked the Court to make it easier to invalidate an issued U.S. patent.  Since its creation in 1982, the U.S. Court of Appeals for the Federal Circuit required that a defendant seeking to invalidate a patent prove invalidity by "clear and convincing evidence" -- meaning that it is highly probable that the patent is invalid.  Normally, the standard of proof in civil cases is "preponderance of the evidence," meaning that something is more likely than not.  For example, a patent owner need only prove that the defendant infringes the patent by a preponderance of the evidence.  "Preponderance" is a much easier standard to meet than clear and convincing evidence, so patent defendants have been at a disadvantage. 

Yesterday (September 29), eleven amicus briefs were filed in support of Microsoft's request that the Supreme Court hear the case and change the Federal Circuit's long-time standard of proof.  One of those was filed by the Electronic Frontier Foundation, Public Knowledge, the Computer and Communications Industry Association, and Apache Software.  I was counsel of record and a co-author of that brief.  EFF's blog post about the case is here.

Joe Mullin has a detailed article about the case that includes links to all eleven briefs.  The companies supporting Microsoft span much of the technology industry, including Google, Intel, Yahoo!, Apple, Dell, Hewlett-Packard, Facebook, and many others.  36 law, business and economic professors also filed a brief supporting Microsoft.

Other articles about this case are here, here, here, here, here and here.

The Supreme Court will likely decide in December whether to hear the case.

UPDATE:  Dennis Crouch has a detailed discussion at Patently-O.   And IPWatchdog has a detailed interview with Mark Lemley about this subject (Mark is counsel of record on the professors' brief.)  Also, here is Techdirt's post.

Wednesday, September 29, 2010

How to Write a Scientific Paper

This is an important article about an important article.

Second Circuit Rules Digital Downloads Aren't Public Performances

Yesterday the Second Circuit affirmed a district court ruling that digital downloads of music aren't public performances.  ASCAP had sued Yahoo! and RealNetworks seeking public performance royalties for such downloads, but the Court rejected that claim.  It also ruled with Yahoo! and RealNetworks on a separate issue by reversing the district court's calculation of license fees. 

Techdirt's analysis is here.

Friday, September 24, 2010

Today is National Punctuation Day

Celebrate if you wish.  But be sure to put your commas in the right place.

YouTube Wins Secondary Liability Case in Spain

Congratulations to YouTube and Google for winning a secondary liability case in Spain (opinion here, in Spanish).  Spanish broadcaster Gestevision Telecino had claimed that YouTube was liable when its users uploaded copyrighted material.  Reaching the same result as the U.S. Court that rejected a similar claim by Viacom, a Spanish court held that YouTube was not liable, given YouTube's prompt takedown of any infringing content identified by copyright owners.  YouTube's blog post about the case is here.

Thursday, September 23, 2010

Supreme Court Might Hear "Innocent Infringer" Copyright Case

Whitney Harper was a high school student who downloaded some songs using Kazaa.  She claims she thought file-sharing downloading was the same as listening to an Internet radio station.  When the RIAA sued her for illegal file-sharing, she tried to claim "innocent infringer" status under the Copyright Act, limiting statutory damages to $200 per work (instead of the usual $750 minimum). 

While the district court agreed with Harper, the Fifth Circuit reversed.  The appeals court agreed with the RIAA that putting copyright notices on the CD's containing the songs defeated an innocent infringer case -- even though Harper never saw the CD's, having downloaded the songs instead.

Harper asked the Supreme Court to hear the case.   Very few such petitions are granted, so the RIAA initially didn't even respond to Harper's petition.  Now, as Techdirt, Ars Technica and Copyrights and Campaigns have reported, the Court has asked the RIAA to respond.  This greatly increases the chance that the Court will agree to hear the case.

Wednesday, September 22, 2010

Kid Most Likely to Use His Middle Initial, Always

THIS kid has one of the best names, ever.

Do Software Patent Plaintiffs and NPEs Usually Win at Trial? Mark Lemley Says They Don't

Mark Lemley and others have written a new paper entitled, "Patent Quality and Settlement among Repeat Patent Litigants." It is available from SSRN here.  Among other things, Lemley concludes that if software patent plaintiffs and non-practicing entities take their patents to trial, they often lose.

Here's the abstract of the paper:

Repeat patent plaintiffs - those who sue eight or more times on the same patents - have a disproportionate effect on the patent system. They are responsible for a sizeable fraction of all patent lawsuits. Their patents should be among the strongest, according to all economic measures of patent quality. And logic suggests that repeat patent plaintiffs should be risk averse, settling more of their cases and taking only the very best to trial to avoid having their patents invalidated. In this paper, we test those hypotheses. We find that repeat patent plaintiffs are somewhat more likely to settle their cases. But, to our surprise, we find that when they do go to trial or judgment, overwhelmingly they lose. This result seems to be driven by two parallel findings: both software patents and patents owned by non-practicing entities (so-called "patent trolls") fare extremely poorly in court. We offer some possible explanations for why a group of apparently weak patents nonetheless have so much influence over the patent system, and some preliminary thoughts about how these findings should shape the patent reform debate.

Peter Zura has a summary of the article here.

Tuesday, September 21, 2010

This Is Painful Just to Watch

A video entitled, "Americans are NOT stupid - with subtitles."   If these people aren't all actors, they are in big trouble.

"Implied License" Defense in the Righthaven Copyright Lawsuits

Techdirt has an interesting post on an "implied license" defense in the Righthaven Copyright lawsuits.  Briefly, Righthaven is a company that buys the copyrights in news articles from the original news source, and then sues people who repost some or all of the articles online.  (For more information about the Righthaven suits, see this post by the EFF.  The EFF is monitoring these suits closely.)

But what if the original news source impliedly licensed people to repost the story?  In that case, as Techdirt explains, Righthaven might be out of luck.

Monday, September 20, 2010

Math Headline of the Day.

I know THIS is probably a result of Photoshop.  But I had to post it anyway.

Defense Verdict in the Eastern District of Texas

A new defense verdict today in a patent case in the Eastern District of Texas.  The case is Ameranth v. Menusoft, Case No. 2:07cv271.  Michael Smith's blog briefly reports on the case.  While defense verdicts in that district are no longer unusual, in that case the claims were found both not infringed and invalid, which is still somewhat unusual.

U.S. Senators Propose Bill to Turn Justice Department Into Piracy Police

A group of Senators, led by Sens. Patrick Leahy and Orrin Hatch, have proposed a bill that would turn the Justice Department into piracy police.  The so-called "Combating Online Infringement and Counterfeits Act" would give the Justice Department the power to shut down websites that are "dedicated to infringing activities."  This latter phrase is broadly defined as a website that is "primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator" to offer goods or services that infringe a copyright or trademark.  The entertainment industry doubtless loves this one.

Techdirt's commentary is here.

UPDATE:  The EFF's analysis is here.

Self-Fulfilling Prophecy of the Day, Grocery Store Edition

This can label is probably NOT what the Dole Food Co. intended.

Overly Descriptive Elevator

I am sure glad I don't work in THIS building.

Ask Jeeves' Top Nine Unanswerable Questions . . . and a Tenth One

Somehow, Number 9 seems a little out of place on THIS list.

Federal Circuit Approves Use of Industry Standards to Prove Infringment

In today's opinion in Fujitsu Ltd. v. Netgear Inc., the Federal Circuit approved the use of industry standards to prove patent infringement.  The court rejected Netgear's argument that even if a device practiced a standard, a patent owner still must always analyze the workings of the particular device as part of its infringement proof.  If a patent "covers every possible implementation of a standard", then "it will be enough to prove infringement by showing standard compliance."  If the standard is not detailed enough, or has optional sections, then an analysis of the accused products will be required.  The key quotes are as follows:

We hold that a district court may rely on an industry standard in analyzing infringement. If a district court construes the claims and finds that the reach of the claims includes any device that practices a standard, then this can be sufficient for a finding of infringement. We agree that claims should be compared to the accused product to determine infringement. However, if an accused product operates in accordance with a standard, then comparing the claims to that standard is the same as comparing the claims to the accused product.

We acknowledge, however, that in many instances, an industry standard does not provide the level of specificity required to establish that practicing that standard would always result in infringement. Or, as with the ’952 patent, the relevant section of the standard is optional, and standards compliance alone would not establish that the accused infringer chooses to implement the optional section. In these instances, it is not sufficient for the patent owner to establish infringement by arguing that the product admittedly practices the standard, therefore it infringes. In these cases, the patent owner must compare the claims to the accused products or, if appropriate, prove that the accused products implement any relevant optional sections of the standard. This should alleviate any concern about the use of standard compliance in assessing patent infringement. Only in the situation where a patent covers every possible implementation of a standard will it be enough to prove infringement by showing standard compliance.

In another interesting part of the opinion, the Court discussed aspects of the law of contributory infringement, including the issues of "capable of infringement," the level of knowledge required to prove infringement, substantial non-infringing use, and material part of the invention.   Netgear wound up winning outright on two of the three patents involved, and on all but four models for the third patent.

UPDATE: Here's an analysis by Patently-O.

Sunday, September 19, 2010

Friday, September 17, 2010

Service Mark of the Day.

"The Mark consists of Goats on a roof of grass."  Courtesy of The Trademark Blog.  I cannot figure out whether to label this under Trademarks or under Humor . . . so I'll do BOTH!
Reg. No. 2,007,624

UPDATE:  Techdirt's analysis is here.

For All You Star Trek Fans

First, the ultimate Star Trek Hoodie.  Next, a new book you won't want to miss.

Monday, September 13, 2010

Traffic signs to avoid

Thanks to the Huffington Post for today's slideshow of horror traffic signs.

Newspaper headline of the day

Everybody (who can) applaud.

Federal Circuit again tries to figure out if preambles are claim limitations

In today's opinion in American Medical Systems, Inc. v. Biolitec, Inc., the Federal Circuit again tried to figure out if preambles are claim limitations.  The preamble at issue included the language "method for photoselective vaporization of tissue."  Judge Bryson, with Judge Prost concurring, said the language wasn't a limitation.  Judge Dyk dissented and said it was.

The Patently-O blog has a more detailed discussion here.

Sunday, September 12, 2010

Duck advertisement of the day

My first humor post naturally involves a duck.

The Ninth Circuit on first sale: "If it looks like a duck, and quacks like a duck, and flies like a duck . . . it's a CHICKEN!"

On Friday, September 10, the Ninth Circuit Court of Appeals released an opinion that prompted me to start this blog, at long last.   The opinion in Vernor v. Autodesk dealt with the "first sale" doctrine in Copyright law.

By way of background, the Copyright laws treat ownership in the copyright of a work of authorship differently than ownership of a copy of the work.  For example, if an artist paints a painting, the artist owns the copyright in the work, and can regulate the making and distribution of copies of the painting.  If the artist sells the painting, the buyer of the painting gets ownership of that copy of the work, but (usually) not the copyright in the work.  So while the buyer has possession of the painting, the buyer does not have the right to make copies of the painting -- only the owner of the copyright (the artist) has that right.

However, the buyer usually does have the right to resell the physical copy of the painting he bought, regardless of the artist's ownership of the copyright.  This is under the "first sale" doctrine, which says that once someone buys a legal copy of a copyrighted work, the owner can legally resell the copy.

Enter Vernor v. Autodesk and the Ninth Circuit.  Timothy Vernor had bought legal copies of Autodesk's AutoCAD software, and tried to sell them on eBay.  Autodesk claimed that the fine print in its original agreement with the purchasers of the software made the transaction only a "license," and not a sale, so the first sale doctrine did not apply.  The Court held:
"We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions. Applying our holding to Autodesk’s SLA, we conclude that CTA was a licensee rather than an owner of copies of Release 14 and thus was not entitled to invoke the first sale doctrine or the essential step defense."

This ignores the economic realities of what a "license" usually is, especially a software license. In a license, the licensee usually (1) pays a recurring fee (e.g. an annual license fee); (2) gets the software for a limited term (e.g. a number of years); and (3) must return all copies of the software when the term is up, or must destroy all copies.

In a sale, the transaction is usually for (1) a one-time fee; (2) permanent transfer of possession of the copy (i.e. no limited term); and (3) permanent possession by the buyer with no obligation to return the software to the seller. (In the Vernor case, this is what the economic realities were.)

Compare renting versus buying a condo. If I rent a condo, I pay monthly rent; it is for a limited term; and I sure as heck have to give it back when the term is up. If I buy it, I pay the seller once (the only periodic payments are usually to the bank who lends me part of the sale price, not the seller); it is permanent and not for a limited term; and I don't have to give it back to the seller, ever. (Perhaps in the rare case where the seller happens to be the bank and I default on the loan, the seller/bank can foreclose; but if my seller isn't my bank, the seller never gets it back.)

Either way in buying a condo, Ninth Circuit factors (2) and (3) are usually present. A condo's CCR's usually have significant use restrictions, and restrictions on transfer (e.g. in a seniors complex the condo can only be resold to another senior). Those are present even when you buy a condo -- but most people who buy a condo would be very, very surprised to find that they only "licensed" it because of these factors, and didn't buy it.

That leaves Ninth Circuit factor (1), calling the transaction a license. The mere label something is given doesn't change the economic realities of the transaction. It brings to mind the old saying: "If it looks like a duck, and quacks like a duck, and flies like a duck, it's a duck, it's not a chicken." Calling a duck a "chicken" doesn't make it a chicken.

But now in the Ninth Circuit, if someone wants to call a duck a chicken, well then . . . it's a CHICKEN!

UPDATED:  Additional analysis by the EFF, Techdirt, and Ars Technica.