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.