Non-practicing entity Sues Google For Online Advertising Method In Eastern Texas
TechDirt.com: Another non-practicing entity (NPE aka 'Patent Troll') is hunting for profits using the "sue to win" business model but might have picked the wrong tech giant to mess with. Mike Masnick has more details ...
Blu-ray Patent Pool Hopes To Rake In IP Royalty Loot
RegHardware: Four major players in the media market space have teamed up to create a joint portfolio of Blu-ray-related intellectual property patents with hopes of squeezing some additional royalty money from any and all Blu-ray products. Tony Smith has more details of this recent development in his topical piece, Toshiba prices up Blu-ray Disc patent portfolio. He writes:
Consumer electronics and entertainment companies Mitsubishi, Thomson, Toshiba and Warner Bros have together begun charging for their intellectual property that is "essential" to Blu-ray Disc players, drives and recorders.
The four firms' pooled technology also extends to Blu-ray kit that incorporates DVD functionality, including hybrid BD/DVD media, they said. It also covers components that decode and encode the data stored on Blu-ray discs - and the discs themselves.
Looks like they've covered all their bases for maximizing the value of their collective Blu-ray IP, nu? Smith comments on the group's new royalty collecting and licensing branch:
Licenses for the patent portfolio will be available for products that comply with the Blu-ray Disc specifications as maintained by the Blu-ray Disc Association (BDA), the four said.
Individually, the fees are not large, of course, but they are likely to amount to substantial revenues for the four companies and their BD4C Licensing Group offshoot, which will collect and share the royalties.
A few million dollars a penny at a time or so adds up to real money eventually. Or even better, "the group "reserves the right to adjust the rates as necessary to encourage the broad participation in the programme by interested companies with essential patents", which might mean gouging but generally means if they start losing sales of related Blu-ray products, the royalty and licensing fees will drop, too.
StandardNet: In a strange (misguided?) move to capitalize on Utah's unique blend of dirt and microbes, a Utah senator is introducing a bill to require registration by any who use dust, dirt or microbes from the state for eventual inclusion in a licensing fee plan. Joe Pyrah reports:
We are Utah, right down to the single-cell organisms living under 6 inches of salt on the flats.
A bill is alive and well that would force companies who take advantage of Utah's unique biodiversity to pay up.
"If they're using Utah organisms, we think Utah as a state should benefit from royalties. Like a patent," said Sen. Lyle Hillyard, R-Logan.
Hillyard's bill would require that people who remove single-cell organisms for research or commercial purposes register with the Utah Geological Survey. It is expected that, in the future, another law would require those who turn that material into a commercial product pay royalties to the state.
Not to be left out of the "land" grab, one official at Utah State University jumps on the "Utah has special bugs" bandwagon. "USU Vice President Ned Weinshenker said organic material -- even of the same variety -- differs subtly state by state. As such, the state should protect its potential revenue stream. 'It may be a unique resource to the state of Utah,' said Weinshenker, a doctor of organic chemistry in charge of the university's strategic ventures and economic development." Will other states follow the lead of the Beehive State or will they come to their senses before they patent everything in sight as a potential revenue stream? Read Pyrah's Senate bill would make state's biodiversity pay off for the rest of this silliness.
Milord & Associates PC: Coca Cola has been slapped with a lawsuit claiming "a declaration of no trademark or design patent infringement" by a rival beverage maker. Milord A. Keshishian explains:
BT Beverage Company sued The Coca Cola Company for a declaration of no trademark or design patent infringement. BT sells beverages in bottles that are shaped like sports balls including baseballs, basketballs, soccer balls, and golf balls. BT has filed numerous trademark applications with the USPTO to register its various bottle designs.
The folks at Coke think BT's round bottle infringes on its intellectual property and "sent a cease and desist letter charging infringement of the trade dress bottle design and Design Patent No. D554,523. BT responded by using Coca Cola’s previous stance against it by denying that Coca Cola had an exclusive right to round shaped bottles for beverage products. The parties’ inability to resolve the dispute resulted in this lawsuit." Can this one go the distance or will Coke and BT kiss and make up with an IP cross-licensing agreement? Check out Keshishian's lengthily-titled Design Patent and Trademark Lawsuit Filed Against Coca Cola Over Sports Ball Shaped Beverage Bottles and find out more.
Some exciting patent news in the form of a disposable razor-blade life-extending product courtesy of Rachael Gallagos at the Iowa City Press Citizen:
Now with an approved patent, Ron Christensen Sr. sees the products he's created to increase the life of razor blades really taking off.
The owner of Game Day Iowa started developing two Revolt products in 2003 and said they greatly lengthen the life of razor blades and reduce skin irritation from shaving.
The Revolt Lubricating Liquid is for storing razors and spare blades, preventing the rust and corrosion that occurs from contact with water and oxygen. The razor and liquid are put together in a glass, and the user only needs to add a couple drops each time they shave to maintain the liquid level, Christensen said.Instead of only getting five shaves per $3 blade, with the Revolt, Christensen said he now uses the same razor blade from Jan. 1 of one year to Jan. 1 of the next.
Maybe the people at Gillette would be willing to pay Mr. Christensen a tidy sum to purchase his new patented razor-saving technology? Read Man gets patent for razor blade product for more on this edgy topic.
FierceWireless: Apple and HTC are going to have a court-mandated cooling-off period according to a recent piece by Phil Goldstein. In Goldstein's Judge halts Apple-Nokia patent spat for now, we learn of this stumbling block to both companies' patent lawsuit plans.
A federal judge in Delaware has put competing patent-infringement claims between Apple and Nokia on hold while the U.S. International Trade Commission tries to resolve the dispute.
The order staying the proceedings covers both Nokia's claims and Apple's counterclaims, and means that nothing further will happen until the ITC makes a decision on whether to ban U.S. imports of products from either company. Nokia started the round-robin of litigation in October by claiming that Apple's iPhone infringed on 10 Nokia patents. Apple countersued in December, arguing Nokia was infringing on 13 of its patents.
So the ITC will have the first option of deciding the fate of claim and counterclaim with the Delaware judicial system playing second fiddle, if it comes to that. One would figure that Apple and HTC could come to some kind of mutually-agreeable arrangement but maybe there's more to these suits than meets the eye...
Bonus IP piece o' the day: Patent reform bill close to passing? at Inventors Digest.
McAfee Uncovers Huge Security Hole In Intellectual Property Software Program
CNET News: A recent analysis of a popular piece of software used to store corporate intellectual property has been found to be easily hacked by a major computer security company. Elinor Mills' McAfee: Source code is easy target within corporations details the the failings of the Perforce IP protection software program:
McAfee analyzed a commonly used software for housing intellectual property called Perforce and released its findings during a session at the RSA security conference here. The company helped in the discovery that a hole in Internet Explorer 6 was exploited in at least some of the recent attacks on U.S. firms and named the attacks "Operation Aurora" after the malware used.
Stuart McClure, general manager risk compliance at McAfee, offers his thoughts on the software's inadequate security:
In Perforce, McAfee found that there are no additional security mechanisms in place, so the security is only as strong as the security already created on the system, according to McClure. Many of the usernames and passwords get transmitted as clear text and authentication can be totally bypassed, he said.
"Strictly by knowing a user name, which I can figure out, I can assume the identity of that user within the Perforce system," he said. "Source code control systems tend to be one of the most open systems we have inside an organization," he added.
The recent attack by Chinese hackers in search of intellectual property via Google's Gmail product and the ease with which such attempts to gather valuable IP have bypassed the very security software meant to protect companies and their innovations should serve as a serious warning to beef up computer systems and take a 'belt-and-suspenders' approach to locking down sensitive information.
WIPO: The World Intellectual Property Organization has released their most recent edition of their IP-focused magazine and focuses heavily on the issue of IP litigation costs. The digital magazine is available in either Web or *.pdf form and is provided at no cost. For more information, visit the WIPO Magazine website and read Special Edition: IP Litigation Costs - 1/2010 (February). Here's an introductory snippet to whet your IP appetite:
This issue of the WIPO Magazine on IP Litigation Costs addresses the aforementioned challenges in IP litigation and looks in particular at the costs and particularities of IP dispute resolution in jurisdictions such as Africa, Europe, Japan and the U.S. The WIPO Arbitration and Mediation Center, co-editor of this issue, explains the benefits of Alternative Dispute Resolution, which appears to be an efficient way out of costly and complex IP litigation. Finally, a range of useful practical tips are provided for minimizing IP dispute settlement costs.
IPWatchdog.com: In a welcome change of tenor, Gene Quinn offers up some Dilbert comic strips in the interest of highlighting the importance of documenting the process of coming up with an innovative product or idea. Quinn's piece should get a chuckle or two from even the staunchest of readers and you've got to give him credit for lightening up an otherwise dry subject. Here's the takeaway once the laughter dies down:
Successful inventors will treat their pursuits as a business, keep appropriate records and not unnecessarily waste time (MONEY) by giving their patent attorneys or agents little or nothing useful to work with. To be sure, if the proponents of patent reform get their way this will matter less in the grand scheme of things because inventors will need to file as soon as practical and not rely on the pipe dream of being the first to invent, which almost never actually leads to the true first inventor being the one who is awarded a patent anyway.
Seeing as we all could use a laugh now and again, I recommend the gentle, constant reader click through to Patent Law Fun & Lessons: What Dilbert Teaches About Inventing and ease into the weekend on the right foot.
Vassar College: If you happen to be near Poughkeepsie, New York, on April 7th, you might be interested in attending a lecture by physicist (quantum mechanics) turned economist, Claude Henry. The program is provided at no cost and will feature Henry's thoughts on intellectual property and some possible replacements/amendments to the current system of IP protection. "In his lecture Henry will address whether intellectual property helps disseminate the body of innovation required for switching to a more sustainable development trajectory, or whether it acts as an obstacle. He will explore what alternatives might be promoted." You can read more of Henry's bio and learn additional details about his upcoming lecture in the aptly-titled Economist Claude Henry will discuss intellectual property and innovation on April 7, 2010.
Daring Fireball: John Gruber provides an excellent take on the HTC vs. Apple patent fight in his recent topical blog post, This Apple-HTC Patent Thing. In it, Gruber references a number of other outspoken hackers who believe that Apple's strategic litigatory move might signal a sea change in technology patent law. Gruber offers some food for thought on the viability of software patents:
There’s an argument to be made that software is inherently different than other fields of invention, different in such a way that patents should not apply — or, should apply for a significantly shorter period of time before expiring. You can’t (or at least shouldn’t) be able to patent mathematics, and there are good arguments that programming is a branch of mathematics. But because software patents are granted, concede at least for the moment that certain kinds of software innovations ought to be patentable. Even with that in mind, clearly the U.S. Patent Office is and has granted patents for things which ought not be patentable. Not just silly frivolous things, but patents that have been granted for concepts alone, rather than specific innovative implementations of said concepts. Ideas in the abstract, rather than implementations of ideas.
That old bugaboo 'obviousness' comes to mind. And Gruber thinks Apple's lawsuit over a portion of their patent portfolio's contents is a sign of things to come. "This litigation, perhaps then, isn’t about particular specific patented components, but rather is about the big idea, the general gist and grand ambition of the iPhone as the basic model for how modern mobile devices should be designed and work." How things pan out remains to be seen but one thing is for sure: Apple has just thrown a huge boulder into the smartphone patent pond and the ripples will continue to be felt for some time.
Bonus IP piece o' the day: An Explosion of Mobile Patent Lawsuits by Nick Bilton at The New York Times.
Small Dog Supply And Grooming Business Bites PETCO For Trademark Infringement
9News.com: A mom and pop dog supply and grooming store is doing battle with pet industry titan PETCO and things could get nasty with significant quantities of money at stake. Dan Boniface and Kyle Clark provide some additional information on this not-so-clear case of trademark infringement in their topical report, Small pet supply store challenges PETCO in trademark fight. In it, they write:
A family-owned shop in Boulder County is battling a big box store for the rights to use the similar concepts, color schemes and names they share.
"We're a mom-and-pop," Bernadette Pflug said. "We're a small-town, locally-owned business."
It's one with a toe hold, or paw hold if you will, in the burgeoning boutique pet supply business.
Bernadette, and her husband, Joe Pflug own Unleashed Dog Center, which offers dog products and grooming.
Pet supply giant PETCO is venturing into the boutique pet supply market with a spinoff store, Unleashed by PETCO. Currently, there are three such stores, all in California.
The Pflugs, and their trademark attorney, assert PETCO store's bright color scheme, minimalist look, natural pet food concept and name have been lifted from their small store.
Of course, PETCO claims their new boutique pet stores are on the up-and-up. A spokesman for the company said "the company believes it properly filed its trademark application," and summarily "rejected the Pflug's request that PETCO agree not to open any Unleased by PETCO stores in Colorado." One problem with the Pflug's claim is that they only own Colorado trademarks for their concept and not USPTO Federal ones, which could end up being the downfall of their infringement claim. PETCO's pockets are much deeper than the Pflug's, one would imagine, and should the case go to court, the outcome would most likely revolve around who's got the most cash to spend litigating and not on who is right or wrong.
TechDirt.com: Not one to back off from a bit of old-fashioned windmill-tilting, Mike Masnick takes on the cause of Larry Lessig, Director of the Edmond J. Safra Foundation Center for Ethics at Harvard University, and a Professor of Law at Harvard Law School, who has repeatedly run afoul of DMCA rules concerning the fair use of copyrighted materials in his online video presentations via YouTube.com. Mike reports on the latest take-down of a Lessig lecture under the auspices of DMCA in his topical piece, Bogus Copyright Claim Silences Yet Another Larry Lessig YouTube Presentation. Here's the background information on the issue:
Nearly a year ago, we wrote about how a YouTube presentation done by well known law professor (and strong believer in fair use and fixing copyright law), Larry Lessig, had been taken down, because his video, in explaining copyright and fair use and other such things, used a snippet of a Warner Music song to demonstrate a point. There could be no clearer example of fair use -- but the video was still taken down. There was some dispute at the time as to whether or not this was an actual DMCA takedown, or merely YouTube's audio/video fingerprinting technology (which the entertainment industry insists can understand fair use and not block it). But, in the end, does it really make a difference? A takedown over copyright is a takedown over copyright.
Lessig has fallen victim to a misplaced attempt by YouTube to take down copyrighted materials again, and ironically, the piece's topic is the inherent flaws of the DMCA program! Masnick sounds off on this copyright silliness: "When a video about fair use itself is pulled down for a bogus copyright infringement, it proves the point. The unintended consequences of asking tool providers to judge what is and what is not copyright infringement lead to tremendous problems with companies shooting first and asking questions later. They are silencing speech, on the threat that it might infringe on copyright." Whatever happened to innocent until proven guilty? Any one? Bueller...?
GamePro.com: Book publisher Random House is looking to expand their reach beyond printed matter and into the realm of video games with a new program that focuses on "transmedia intellectual property." AJ Glasser reports:
Book publisher Random House announced a new deal today that will change the way we think about video game adaptations. Stardock's original PC strategy game, Elemental: War of Magic, leads off with a book called Elemental: Destiny's Embers this summer.
The new branch of the publisher will handle all "transmedia intellectual property (IP) -- story content that can be accessed through multiple media sources including video games, social networks on the web, mobile platforms, in print and on film."
So rather than just taking the story of Elemental: War of Magic and massaging it into a novel, editors from Random House like Keith Clayton (editor, Stars Wars Expanded Universe properties) work with game writers to create books that exists within the same IP as a video game. In other words, the publisher will license the universe and let authors, game developers, or even comic book writers express the IP in different formats.
RH's transmedia program will give content creators a new avenue to explore their creativity while at the same time protecting their efforts from unauthorized use. In addition, there is now more financial incentive for content creators to ink a deal with companies like Random House to produce booksclosely tied to their video game "universes" which should enrichen the experience of the end user. Be sure to read the rest of Glasser's New "transmedia intellectual property" movement kicks off at Random House to find out all the details of this exciting publishing house development.
ArsTechnica.com: Woe unto those who dare to borrow patents from technology giant Apple. HTC, major smartphone producer and the latest target of Apple's ire, stands to lose the right to import its products into the US along with untold millions of dollars in fines and penalties should they lose their day in court. Chris Foresman has additional details for the gentle, and constant reader, in his recent article, HTC feeling Apple's fury over smartphone patents. Foresman writes:
Apple has filed a lawsuit against smartphone maker HTC, alleging that it violates as many as 20 patents that Apple has on the iPhone interface and hardware architecture. A parallel complaint has also been filed with the International Trade Commission to block imports of devices that violated the patents in question.
"We can sit by and watch competitors steal our patented inventions, or we can do something about it. We've decided to do something about it," Apple CEO Steve Jobs said in a statement. "We think competition is healthy, but competitors should create their own original technology, not steal ours."
At dispute are are a wide-ranging portfolio of technology patents that make modern smartphones so advanced and Apple is issuing its claim of infringement at a particularly unwanted time in HTC's product release schedule. "The lawsuit may have been sparked by the recent addition of certain multitouch gesture controls added to phones running Google's Android operating system. Google enabled pinch-and-zoom gestures for the Nexus One recently, citing the model's advanced CPU as the reason. 'Unlike past devices, these phones have the processing power to deliver pinch-to-zoom, while still providing a great user experience,' a Google spokesperson said early last month." Apple seeks 3x damage "for willful infringement, punitive damages, interest, and attorney's fees in addition to a permanent injunction barring HTC from making, using, importing and selling devices that infringe on Apple's patents." Stay tuned for more news on this serious dispute as it becomes available.
The Washington Post: As more and more human genetic material becomes available to increasingly tech-savvy medical business at reasonable prices, an large number of disputes are arising over the idea of patenting portions of the human genome/related processes and medical advancements. A timely piece by Kari Lydersen features a group of consumers who are joining together to fight against the patenting of genetic processes on the basis that a single provider of tests looking for mutations in human genes runs contrary to US Constitutional law.
After receiving a diagnosis of aggressive breast cancer at age 43, Lisbeth Ceriani wanted to find out whether she had the BRCA gene mutation, which makes women much more likely to get breast and ovarian cancer. If she tested positive for the mutation, she decided, she would have her ovaries removed preemptively.
But Massachusetts, where Ceriani lives, is one of 24 states where Medicaid does not cover the $3,120 test, which is offered only by the Utah biotech company Myriad Genetics. Coordinator of a Boston au pair program where she does not get health insurance or earn enough to purchase it on her own, Ceriani said she could not afford the test. She is one of the plaintiffs in a lawsuit claiming that Myriad's exclusive right to conduct tests for the mutation is unconstitutional.
Lawyers for the defendant, Myriad Genetics, strongly disagree with Ms. Ceriani and her fellow suitors. Patent attorney and molecular biologist Kevin Noonan weighs in: "'Saying the consequence of these patents is that women may not be able to obtain the information is like saying I can't call someone in New York because I don't want to pay to use a telephone,' he said. 'Free speech doesn't mean something should be free, it just means the government can't suppress it."' Read Lawsuit attacks patent giving company control over genetic test for cancer risk for the win.
Bonus IP piece o' the day: Biotechconnection.com presents Intellectual Property: How to Review a Patent Application featuring Patent Attorney Katherine White of Enterprise Partners Venture Capital.
Author Highlights 7 Intellectual Property Sins Of Tech Startups
Lexology: Rajiv P. Patel recently authored a relevant piece covering a litany of IP troubles that harangue startups like the proverbial plague of locusts and offers in its contents the solution to a number of these common sticking points. In Seven sins — intellectual property mistakes start-up technology companies should avoid, Patel offers this excellent problem/solution pairing for the budding startup:
7. Not investing sufficient resources to secure intellectual property protection
Many companies find that they are invigorated for the initial exercise of pursuing an intellectual property strategy. However, as time continues on the excitation wears off. Responding to inquiries or conducting follow up on intellectual property issues takes a back seat to other matters and may also be completely ignored. Over time this causes numerous problems that include blown budgets, potential loss of securing intellectual property rights, and missed opportunities to further develop an intellectual property portfolio.
TIP: Have someone within the company take the lead as being the intellectual property interface with intellectual property counsel. Ideally, the person should have an interest in intellectual property (although need not be a specialist), a solid understanding of the business and industry that the company is in and/or planning to be in, and the authority from management to make decisions. A person having this diverse background and empowerment will help ensure that intellectual property decisions are made in a proper business context and in an efficient manner, thereby providing the company with potentially greatest value.
The transition from short-term, CYA-style intellectual property protection to a more mature and visionary company policy is tricky, but Patel's tip can certainly help find a candidate from within to take over the role of IP minder. There are 6 other items of potential interest to the constant reader, along with their accompanying suggested fixes, in Patel's entire piece reachable at the link above.
TechDirt.com: The famous statue of Jesus overlooking Rio de Janeiro in Brazil is the subject of a recent lawsuit and Mike Masnick has all the related details in his timely piece, Brazil's Catholic Church Sues Columbia Pictures For Destroying Jesus Statue In 2012... In Violation Of Its Copyright. He writes:
...[T]he Catholic Church of Brazil is suing Columbia Pictures, claiming copyright infringement in last year's blockbuster 2012, because the movie depicts a famous statue of Jesus being destroyed. Brazil allows copyright on sculptures for life, plus seventy years, and the guy who made the statue (now a huge tourist attraction in Rio) died in 1961, meaning that the statue is still under copyright -- and the archdiocese claims to hold the copyright. It apparently turned down Columbia Pictures request to use it in the movie 2012 because the people there didn't like the idea of seeing the statue destroyed.
Even better than the church and studio's promise to find an amicable ending to this suit, if only it includes an apology from "the movie studio to admit it 'meant no offense,'" is the very lively comment section that follows. Learn a little about international intellectual property law differences and get a laugh or two from the hellish flame war developing just below by reading the rest of Masnick's short, but worthy, blog entry.
The 271 Patent Blog: Peter Zura's coverage of a trading card patent showdown can be found in his related article, Judge Rader Accuses CAFC Panel of "Bias Against Non-Technical Arts".
martindale: Eugene I. Low and Kenny K. S. Wong of the firm Mayer Brown JSM in Hong Kong provide a current reckoning of China's intellectual property laws in their timely piece, Intellectual Property Law in the People's Republic of China: An Update. In it, they clarify how China's laws, when carefully explained and well understood, can help foreign businesses compete in what has been often seen as an insider-only system where the deck is stacked in favor of the local applicant. Here's one helpful snippet telling the tale of changes to China's "well-known trademark" legislation:
...[T]he Supreme People's Court of China issued a judicial opinion in May 2009 offering guidance on a number of questions concerning well-known trademarks:
•The circumstances under which a court may or may not decide if a mark is “well-known” are defined. For instance, the court may determine if a mark is well-known in a trademark infringement or unfair competition claim that involves the mark’s identity or similarity relative to an enterprise name. On the other hand, if a trademark infringement or an unfair competition claim fails for want of some other statutory criteria, the court may not make a determination.
•Factors to be taken into account when considering whether a trademark is well-known in China include the mark’s fame and history of use, the market share of goods bearing the mark, past recognitions, and the extent and geographical scope of associated advertising activities. Supporting evidence in the form of industry rankings, market surveys, valuation reports and the like are recognized as appropriate considerations by the court.
•The Court found that “confusion” relative to trademark infringement occurs when the public may not recognize that products bearing a well-known trademark and a mark under complaint come from the same source. Similarly, confusion exists when the public may not understand that a license, association or other like agreement has been arranged between respective traders.
Also covered in Low and Wong's piece are Chinese patent and trade secret laws. As China rises in global prominence, knowledge of the inner workings of the country's IP rules could give your firm an upper hand in competing with other interested foreign entities hoping to capitalize on a newly-developing middle class looking for stuff and services to consume.
Bonus IP piece o' the day: Did You Say “Intellectual Property”? It's a Seductive Mirage by Richard M. Stallman at GNU.org.